SEFft
United States Office of Policy
Environmental Protection (1807T)
Agency
April 2013
EPA-100-K-12-010
Hazardous Waste
Determination Program
Evaluation
Final Report
Promoting Environmental Results
•« •
Through Evaluation
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This report was prepared by Industrial Economics (IEc), under contract to EPA (contract EP-W-10-002).
lEc conducted an independent evaluation and review of EPA's hazardous waste determination program.
The recommendations included in the report are lEc's recommendations to EPA. They do not necessarily
reflect EPA's opinion. In this report, IEc summarizes facts and opinions that stakeholders conveyed to
IEc over the course of the evaluation. In a few instances, EPA disagreed with or raised concerns
regarding the accuracy of stakeholder statements. In those cases, EPA has asked IEc to include footnotes
to provide clarification. Inclusion of a stakeholder's opinion in this report does not constitute agreement
or endorsement by EPA of the stakeholder's opinion.
In the course of preparing this report IEc spoke to numerous stakeholders, including individual hazardous
waste generators, trade associations, hazardous waste service providers, and state and Regional regulators.
EPA is grateful to the many stakeholders for their time and generosity in allowing IEc to talk with them
as part of this evaluation. EPA is particularly thankful to those stakeholders who opened their doors for
facility tours and those who coordinated and facilitated meetings and site visits.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY
Background ES-1
Evaluation of EPA's Hazardous Waste Determination Regulatory Program ES-1
Summary of Findings ES-2
lEc's Recommendations for EPA ES- 5
INTRODUCTION
Background 1 -1
Evaluation Purpose, Intended Uses, and Audience 1-4
Evaluation Questions and Connection to the Logic Model 1-4
METHODOLOGY
Data Sources 2-1
Data Analysis 2-6
Limitations of the Evaluation 2-9
FINDINGS
Evaluation Question 1: What is the national non-compliance rate with the HW determination regulations?
What is the non-compliance rate with the HW determination regulations by sector?3-1
Evaluation Questions 2 and 3: What obstacles, challenges, and firm characteristics influence hazardous
waste generators' compliance with the hazardous waste determination regulations? 3-8
Evaluation Question 4: How do state program activities influence hazardous waste generators'
compliance with the hazardous waste determination regulations? 3-17
Evaluation Question 5: How do assistance providers/hazardous waste service providers/trade
associations' activities influence hazardous waste generators' compliance with the hazardous waste
determination regulations? 3-30
Evaluation Question 6: What changes do stakeholders recommend to make the national hazardous waste
determination process more successful? 3-34
OVERARCHING THEMES AND RECOMMENDATIONS
Overarching Themes 4-1
Recommendations 4-2
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Appendix A: Hazardous Waste Determination Non-Compliance by Sector
Appendix B: Theme Prevalence
Appendix C: Stakeholder Recommendations, Organized by Recommendation Type
Appendix D: Interview Guide for Industry/Trade Association Representatives
Appendix E: Interview Guide for Hazardous Waste Service Providers
Appendix F: Discussion Questions for Hazardous Waste Generators
Appendix G: Discussion Questions for EPA Regional Compliance Assistance Coordinators
Appendix H: Discussion Questions for Small Business Assistance Providers
Appendix I: Discussion Questions for Sector-based Assistance Providers
Appendix J: Discussion Questions for EPA Regional Enforcement Managers
Appendix K: Discussion Questions for State Associations
Appendix L: Discussion Questions for Case Study State
ES-1
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EXECUTIVE SUMMARY
BACKGROUND
EPA's Resource Conservation and Recovery Act (RCRA) regulations are designed as a cradle-to-grave
system to prevent serious environmental damages that might occur, as well as mitigate damages that have
occurred, as a result of improper hazardous waste management. The first and most important step in the
regulations requires waste-generating entities to use specific regulatory requirements to determine if their
waste is a hazardous waste (HW) (40 CFR 262.11). EPA developed these HW determination
requirements in 1980 and has not changed them substantially since that time.
If waste is determined to be hazardous, the HW generator must manage it in accordance with RCRA
regulations, which include requirements for managing, tracking, recordkeeping, storage, transportation,
treatment, and disposal. However, if a HW generator does not properly identify a waste as hazardous, the
HW generator will not follow the relevant RCRA regulations, which may cause harm to human health
and the environment. Given the importance of making accurate HW determinations, EPA is interested in
determining the effectiveness of these regulations.
EVALUATION OF EPA'S HW DETERMINATION REGULATORY PROGRAM
In order to determine the effectiveness of EPA's HW determination regulatory program, EPA's Office of
Resource Conservation and Recovery, Office of Compliance, and Office of Policy contracted with
Industrial Economics (lEc) to conduct a third party program evaluation. EPA tasked lEc with developing
recommendations for how EPA can improve its HW determination regulatory program and help
generators improve compliance with HW determination regulations. However, it is important to note that
although EPA can and should help facilitate compliance, the regulatory burden for making an accurate
HW determination ultimately lies with the generator of the waste.
This evaluation seeks to answer the following six questions and, based on these findings, make
recommendations for improving EPA's program:
1. What is the national non-compliance rate with the HW determination regulations? What is the
non-compliance rate with the HW determination regulations by sector?
2. What obstacles or challenges do HW generators face in complying with the HW determination
regulations?
3. What firm characteristics influence HW generators' compliance with the HW determination
regulations?
4. How do state program activities influence HW generators' compliance with the HW
determination regulations?
5. How do assistance providers/HW service providers/trade associations' activities influence HW
generators' compliance with the HW determination regulations? and
6. What changes do stakeholders recommend to make the national HW program more successful?
ES-1
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The evaluation uses a mixed-method approach that combines available non-compliance data regarding
HW determination violations, interviews and discussions with various stakeholders, a survey of federal
facilities who generate HW, and state HW program case studies to answer the evaluation questions.
SUMMARY OF FINDINGS
The following bullets provide a brief summary response for each evaluation question:
• Evaluation Question 1: The average non-compliance rate with RCRA HW determination
regulations across the United States is 34 percent. This figure is based on an analysis of HW
determination violations identified during EPA- or EPA/contractor-led comprehensive evaluation
investigations recorded in RCRAInfo over the last 10 years. HW determination violations are
considered to be those recorded as violations under RCRA Part 262 Subpart A in RCRAInfo.
Among the sectors with the greatest overall number of HW determination violations, the
following five sectors have the highest HW determination non-compliance rates (i.e., the greatest
number of violations per inspection conducted): 1.) printed circuit board manufacturing; 2.)
copper foundries; 3.) hospitals; 4.) colleges, universities, and professional schools; and 5.)
fabricated structural metal manufacturing. Uncertainties and limitations associated with these
calculations (e.g., the inspections are not conducted at a representative sample of facilities) are
detailed in Chapter 2 of the full report.
• Evaluation Questions 2 and 3: Numerous challenges explain patterns of non-compliance with
HW determination regulations. One of the most significant challenges generators cite is the
difficulty making waste determinations for listed wastes.
Based on a review of 34 data sources that include information from numerous stakeholders (e.g.,
notes from stakeholder discussions and interviews), the evaluation identified 30 recurring themes
that describe various obstacles, challenges, and factors that influence HW generators' compliance
with HW determination regulations. These 30 themes fall into three overarching categories: (1)
challenges related to the regulations; (2) challenges related to generators; and (3) challenges
related to regulatory agencies. Overall, stakeholders identified the following top ten challenges
leading to inaccurate HW determination:
1. Difficulty making waste determinations for listed wastes
2. Reliance upon third parties (HW service providers, suppliers, disposers) for information
used to make determinations
3. Lack of training/staff turnover at generators
4. The need for industry specific guidance and outreach
5. Lack of consistency of the regulations and how to interpret them at the different levels of
government (federal, state, county)
6. Generally confusing and difficult to follow regulations (e.g., narrative interpretations,
references to previous sections)
7. The need for more interpretation/guidance/definitive answers from EPA
8. Difficulty understanding the HW recycling regulations
ES-2
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9. Lack of awareness on the part of generators that they are generating a HW at all and
therefore are subject to RCRA
10. Cost constraints in making HW determinations (e.g., high cost associated with testing a
waste sample)
• Evaluation Question 4: States have developed a range of approaches to implement the
federal HW requirements. The three states profiled in this evaluation have different methods
for providing generator assistance and conducting compliance monitoring.
• In Minnesota, the state has an extensive online assistance presence. For example, the
state lists over 140 fact sheets and resources on its webpage, which serve as a resource
for the metropolitan counties as well as the state. This library of assistance materials is
coupled with an extensive compliance monitoring presence, particularly in the Twin
Cities metropolitan area. The state has delegated authority for the HW program to seven
metropolitan counties, and these counties have a significant inspection and assistance
presence at the local level.
• Colorado's self-certification program, modeled after the Environmental Results Program,
allows the state to contact far more generators than would be possible otherwise. The
self-certification program raises awareness of compliance requirements, offers assistance,
and incorporates statistically-based measurement to assess overall compliance levels.
The state also has an active compliance monitoring, enforcement, and assistance
program. For example, the state supports a Generator Assistance Program that provides
businesses with free on-site technical assistance and information on the state's HW
regulations.
• Texas has implemented an audit program designed for a state with generators dispersed
across a large geographic area. Under this program, generators in Texas are required to
submit a profile of their individual waste streams; the state selects a random sample of
these profiles to audit. The state also conducts on-site inspections and has a well-
regarded small business assistance program.
• Evaluation Question 5: Small business assistance providers, HW service providers, suppliers,
and trade associations play an integral role in the HW determination process. Assistance
providers are often the first to alert generators to their HW management responsibilities,
including HW determination. They provide generators with various tools and materials to help
them comply with the regulations. Similarly, trade associations provide HW determination
assistance but also lobby for regulations more favorable to their industry sector. However, the
influence of trade associations on generators is limited to some degree by the size of their
membership. Many HW generators choose not to join their sectors' trade association due to
economic constraints and are not recipients of the services they provide. HW service providers
and suppliers have a wide ranging influence on generators' HW determination compliance. For
example, some HW service providers will make accurate HW determinations on behalf of a HW
generator in situations where the generator, unassisted, would likely fail to do so. On other
occasions, HW determination violations result from HW service providers or suppliers giving
generators incomplete or incorrect information about a product or waste stream.
• Evaluation Question 6: Stakeholders' top recommendation for making the national HW
program more successful is to provide, improve, and/or increase sector-specific HW
determination guidance. Drawing on the comments provided by stakeholders during the
interviews, discussions, and survey of federal partners, the evaluators identified 180
ES-3
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recommendations to improve the national HW determination process. The top five types of
recommendations offered by stakeholders are to:
1. Provide, improve, and/or increase the guidance available for making HW determinations;
2. Simplify the regulations in general;
3. Define and clearly interpret specific sections of the regulations;
4. Address situations where applying the regulations is not practical; and
5. Increase collaboration with the regulated industries.
In addition to suggestions raised through the interviews and open discussions, EPA gathered
recommendations through the federal facilities survey. Survey respondents were asked, "If you had an
opportunity, what would you want EPA or your state to do to help facilities like yours make HW
determinations more effectively?" The responses are shown in Exhibit ES-1.
EXHIBIT ES-1: Recommendations for EPA or States to Help Facilities Make HW
Determinations More Effectively
RECOMMENDATION CATEGORY
Provide user-friendly guidance
Improve the clarity of the regulations and guidance
Improve the readability of the regulations and
guidance
Provide a hotline dedicated to helping generators
make more accurate determinations
Other
Provide on-site technical assistance upon request
Offer periodic webinar training
PERCENT RANKING
RECOMMENDATION AS
MOST IMPORTANT
34%
23%
16%
12%
11%
8%
8%
Several overarching themes emerge from this evaluation:
• Many stakeholders would like EPA to simplify and improve the HW determination
regulations. Stakeholders indicated that the regulatory language sacrifices clarity in an attempt to
cover all possible scenarios where the regulations apply. This degree of detail complicates the
regulations, making them difficult for generators to interpret and apply. In addition, stakeholders
expressed concern that listed wastes may not cover important types of waste that may be
hazardous (e.g., chemotherapy drugs). Stakeholders also suggested that EPA reclassify some HW
as universal waste.
• Certain stakeholders expressed frustration with the non-intuitive, complex process of
making HW determinations. Stakeholders suggested that if people without experience or
training in making HW determinations perceive the regulations to be overly complicated, not
ES-4
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logical, or overly time consuming, they may become discouraged and give up on their efforts to
ensure proper waste determination. Stakeholders who are well trained and have years of
experience with waste determinations are not as likely to raise this concern, though they also seek
improvements to the regulations.
• Generators seek greater clarity about how to apply the existing regulations to their
operations. Stakeholders said that it would be very helpful to have sector-specific guidance for
typical waste streams, paired with an opportunity to ask detailed questions and get prompt
feedback from EPA for non-typical waste streams. While EPA cannot make HW determinations
for generators and requirements vary depending on state regulations, there appears to be an
opportunity for EPA to share assistance materials and tools to supplement state resources.
• In practice many generators have essentially "outsourced" the HW determination process
(even though by law generators themselves must make HW determinations). For a number of
reasons including financial constraints, time constraints, and the complexity of the regulations,
many generators hire HW service providers to manage their HW or rely on information from other
third parties (e.g., suppliers) to make their determinations. Some HW service providers make HW
determinations on behalf of their clients, while others simply offer information as to whether a
waste stream is hazardous or not. HW service providers often have particular expertise and
resources that enable them to make accurate HW determinations. However, if they are relying on
incomplete or incorrect information from generators, or if they are motivated by financial
incentives to under- or over-classify waste as hazardous, service providers may contribute to
inaccurate HW determinations.
• Stakeholders report that a combination of compliance monitoring and enforcement and
compliance assistance is an effective approach to improving compliance with HW
determination regulations. This evaluation finds that many HW generators do not recognize
their HW determination regulatory obligations until they have been contacted by EPA, the state, or
an assistance provider. However, reduced funding at the state and federal level has prevented
regulating agencies from expanding their compliance monitoring efforts and assistance providers
from expanding their outreach and guidance efforts.
• Current compliance data do not facilitate calculation of non-compliance rates pertaining to
HW determination regulations. Inspections tracked in RCRAInfo do not reflect representative
samples of facilities, and may therefore provide inaccurate indications of compliance rates.
Moreover, inspectors apparently may use 262.11 as a default violation during an inspection of a
facility with numerous violations. Use of this code does not reflect the severity of the violation.
lEC'S RECOMMENDATIONS FOR EPA
Overall, lEc suggests changes to the HW determination process to address the interrelated challenges that
lead to non-compliance with the HW determination regulations. For example, in addition to providing
regulatory interpretations that clarify sections of the regulations, EPA should also disseminate the new
information to the generators, ideally through assistance providers, HW service providers, and/or trade
associations who already have relationships with generators.
ES-5
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Based on the lessons gathered during this evaluation, lEc suggests nine recommendations for EPA in two
groups: changes EPA can make directly and opportunities to work with other stakeholders.
Changes EPA Can Make Directly
1. To the Extent Possible, Simplify and Improve the Regulations, and Provide Sector-
Specific Guidance
The evaluators suggest EPA look for opportunities to simplify the regulatory language and revise it to
include fewer references to previous sections and more focus on addressing the majority of applicable
situations. Where it is not possible to simplify the regulations, lEc suggests that EPA provide more
sector-specific plain language guidance, to help generators and stakeholders interpret the regulatory
language.
The evaluators suggest that EPA also consider whether the listed wastes capture the appropriate wastes.
We recommend that EPA consider incorporating newer chemicals on to the P- and U- lists, e.g.,
chemotherapy drugs. We suggest EPA consider making some wastes universal wastes (e.g., aerosol cans,
Pharmaceuticals, and expired or returned retail products). Further, EPA should consider clarifying the F-
and P/U-listed wastes. In addition to clarifying the narrative process descriptions that result in an F-listed
waste, lEc suggests EPA consider explicitly stating the common constituents regulated under each F-
listing. We recommend that EPA consider addressing the confusion around the applicability of the P- and
U-listings only to products in which the listed chemical is the sole active ingredient. (In other words, we
suggest EPA consider clarifying why a commercial chemical product is not a U- or P-listed HW if it has
two or more active ingredients, even if all the ingredients are listed on the U- or P-list.)
2. Establish a Direct Line of Communication between EPA and HW Stakeholders
Stakeholders indicated that opportunities for communication with EPA have decreased in recent years,
contributing to the challenges generators face in complying with the HW determination regulations. They
noted difficulty getting responses to HW determination questions from EPA and said that written
inquiries often go unanswered. This perceived lack of communication seems to contribute to the distrust
of the Agency some stakeholders harbor. We recommend the Agency consider creating avenues to
facilitate better communication between EPA and stakeholders. Reinstituting the RCRA Hotline in one
form or another is one potential mechanism.' Throughout this evaluation, stakeholders referred to the
Hotline as an invaluable resource to the regulated community that enabled stakeholders to discuss
difficult questions that inevitably arise when generators apply the regulations. Stakeholders experienced
in making HW determinations lamented the loss of the RCRA Hotline, saying it was a vital resource,
even for people who have been making accurate HW determinations for years. The Hotline's ability to
connect stakeholders with another person to discuss questions about applying the RCRA regulations
facilitated an interpersonal connection between the Agency and the regulated community that cannot be
replicated by providing regulatory assistance documents and interpretations online.
1 The RCRA Hotline was staffed by contractors to EPA, not actual EPA staff. Responses to questions were limited to the information available
through existing documentation and interpretations. Staff did not provide callers with individualized interpretations for specific situations but
assisted them in identifying available info applicable to their situation.
ES-6
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3. Make Guidance Documents Easily Accessible via RCRA Online and Make the Generator
Website More User-Friendly
During the course of this evaluation, several stakeholders said that although RCRA Online contains some
useful information it is often difficult to locate and the system is generally confusing to navigate. We
recommend that EPA improve the visibility of guidance documents and interpretations on the site. For
example, a generator visiting the site would likely be interested in specific pieces of information that are
currently spread across four separate links on the front page. The Agency should consider making
resources for generators more accessible, including generator guidance information and links to state and
assistance provider websites.
4. Improve Tracking of Compliance Rates for HW Determination
We recommend that EPA revise RCRAInfo to allow tracking violations specifically related to 40 CFR
262.11 and encourage EPA inspectors to consistently use this code to track FiW determination violations.
EPA may also wish to consider tracking the severity of FiW determination violations. In addition, we
recommend that EPA consider flagging targeted inspections vs. regularly scheduled inspections, so as to
enable improved data analysis. Ideally, if tracking compliance with HW determination regulations is a
high priority for the Agency, EPA would support representative sampling of facilities to accurately
measure compliance rates, either at the state or federal level. For example, EPA Regions could work with
states to gather representative data on compliance, and track this information periodically to gauge
progress. Overall, we recommend that EPA consider improving RCRAInfo and the compliance
monitoring data it stores to facilitate accurate, comparable, and consistent tracking of non-compliance
rates overtime.
Opportunities to Work with Other Stakeholders
5. Identify Opportunities to Improve Communications with State Agencies to Inform
Regulatory Interpretations
By communicating with the states, EPA's interpretations are more likely to reflect actual situations
generators face since communication is greater between generators and the state than between generators
and EPA.
6. Improve Coordination with Other Agencies whose Regulations Overlap with Those of
EPA
On more than one occasion, stakeholders discussed specific situations where another agency's regulatory
guidelines conflict with EPA's. For example, sometimes the local fire department will inform a generator
that they can dispose of an item as solid waste (likely based on regulations from OSHA or DOT).
However, the HW determination regulations may require this item to be characterized and handled as
HW. To address these inconsistencies, we recommend that the Agency investigate the claims described
in this evaluation and coordinate with the respective agencies to prevent distributing guidance to
generators that conflicts with guidance from other agencies. EPA should also seek input from states,
assistance providers, and generators about other instances of conflicting regulations and resolve these
situations.
ES-7
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7. En co urage Best Practices am ong States
State agencies conduct a wide range of compliance monitoring and assistance activities. For example,
generator self-certification programs, like those in Colorado, Massachusetts, and other states have the
potential to increase generators' awareness of compliance requirements while also providing better
compliance information to regulators. Hotlines devoted to answering generators' questions facilitate
communication between industry and regulators and help generators apply the regulations to make
accurate HW determinations. Coordination across state agencies can help inspectors identify new
businesses subject to HW regulations. We recommend EPA facilitate communication between the states
so they can learn from each other's approaches. We recognize that EPA provides competitive grants to
fund the sector-based compliance assistance centers, and that these are good clearinghouses for
compliance assistance materials. However we also encourage EPA to help states learn from each other
with regard to best practices, such as approaches to targeting state inspections and making new generators
aware of their obligations.
8. Promote Best Practices from Federal Facilities
EPA should use the federal facilities survey information, collected for this evaluation, to encourage HW
determination best practices amongst generators. For example, EPA could issue a memo to assistance
providers, trade associations, and other stakeholders that frequently interact with generators, stating that
EPA's review of federal facilities revealed that federal HW generators that implement processes for
making HW determinations are more likely to make accurate HW determinations. The memo could point
to resources that could assist facilities in developing appropriate waste determination processes (e.g., a
decision-tree, such as Texas has developed or example procedures developed by federal facilities
themselves). The memo could also include other federal HW generator best practices the Agency has
identified. This would help generators understand the actions they can take to improve HW determination
compliance.
9. Develop a Communications Strategy to Increase Awareness of Compliance Monitoring
Presence and Enforcement Actions Related to HW Determination
This evaluation revealed that the perception that they "will not get caught" lulls some generators into a
sense of complacency, instead of taking the time and effort to make accurate HW determinations. Where
possible, EPA and the states should increase their field presence and inspection frequency. In addition,
the Agency should consider taking steps to increase awareness of its compliance monitoring and
enforcement actions when they occur. EPA could alert trade associations and assistance providers about
recent compliance and enforcement actions, so that awareness of EPA's presence would be magnified. In
addition, EPA could provide information about the most common types of violations, and what generators
can do to prevent them, and where they can get further compliance assistance. This communications
strategy would broadcast EPA's compliance monitoring presence to an audience much larger than can be
reached through inspections alone and would motivate generators to take steps to come into compliance.
ES-8
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CHAPTER 1 | INTRODUCTION
EPA's Resource Conservation and Recovery Act (RCRA) regulations require entities to determine
whether waste they generate is a hazardous waste (HW). If it is, the HW generator must manage the HW
under RCRA regulations, which include requirements for management, recordkeeping, tracking,
transportation, treatment, storage, and disposal. The RCRA regulations are designed as a cradle-to-grave
system to prevent serious environmental damages that might occur, as well as mitigate damages that have
occurred, as a result of improper HW management. However, if a HW generator does not properly
identify a waste as hazardous, the HW generator will not follow the relevant RCRA regulations, which
may cause harm to human health and the environment. An EPA review of RCRA compliance data for
2008 and 2009 suggested that HW generators have twice as many violations associated with their HW
determination process as any other type of RCRA violation. EPA's Office of Resource Conservation and
Recovery (ORCR), with assistance from EPA's Office of Enforcement and Compliance (OECA) and
EPA's Office of Policy's Evaluation Support Division (ESD) undertook a program evaluation to identify
the underlying causes of these violations and assess the effectiveness of the RCRA HW determination
regulations. ESD contracted with an independent evaluation firm, Industrial Economics Inc. (IEc), to
conduct the evaluation. EPA asked IEc to develop independent recommendations describing how the
Agency can help generators make accurate HW determinations, in compliance with the RCRA
regulations. However, it is important to note that although EPA can and should help facilitate
compliance, the regulatory burden and legal responsibility for making an accurate HW determination
ultimately lies with the generator of the waste.
BACKGROUND
The basic structure and design of the national RCRA HW determination regulation (40 CFR 262.11)
program, is captured by the logic model (Exhibit 1). EPA developed the regulations requiring HW
determinations in 1980, and has made only minor changes to the regulations since then. Most states have
been authorized to implement the RCRA regulations. EPA Headquarters and Regions set national
regulation and policy, but primarily work in an oversight and support role, e.g., offering interpretation of
the federal regulations, compiling and tracking compliance data, and providing compliance assistance
materials and information. Circled letters in the logic model correspond to the questions the evaluation
addresses, as described later in this chapter. Key components of the logic model include:
• Resources: basic inputs to the program including funds, program staff, and contractor support.
• Activities/Outputs: specific actions that are taken to achieve the program goals and the immediate
result of those actions. For example, EPA receives inquiries about HW determination from HW
generators, transporters, trade associations, and states and in response develops guidance, memos,
and frequently asked questions documents.
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Intermediate Outcomes: changes in HW generator behavior that result in the proper determination
of HW and lower non-compliance rates.
Long Term Outcomes: outcomes that meet the overarching goals of the HW determination process,
including proper management of HW and a potential reduction in the amount of HW generated (and
thus increased protection of human health and the environment).
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EXHIBIT 1. Logic Model for EPA's National HW Determination Program
Resources I
•Workgroup
members
•1 PARMS staff
•2.5 RGB staff
• Office of
Resource
Conservation and
Recovery
managers
•Contractor
support
•Funding
• Office of
Office of
Enforcement and
Compliance
Assurance States
& Regions
•Program
analyses
•State Review
Framework
reviews
!/\ 1! Activities! B^ ) 1 Outputs
S
— >
->
^*-*
Regulation D
•Write preamb
regulation
•Solicit comme
public
•Workwith wo
gain consensu
•Publish propc
rules
•Workwith Off
Management
:
Responding 1
•Research reg
memos and g
•Workwith Sts
Regions on qu
•Write formal r
questions
•Return phone
answers to qu
;velopment
e and
nts from
kgroup to '
s
sal and final
ce of
and Budget
k
o Inquiries
ulations,
idance
tes and
esponses to
calls with
sstions
Compliance l\
•Conduct insp
•Obtain and e
1
/lonitoring
ter data
/
>-+
•Rule preamble and
regulation text
•FAQs
•Press release
•Website with
materials
•Public record via
docket
•Guidance
•Memos
•FAQs
•Email responses
•Data analysis
•RCRAInfodata
(some of which is
publically available)
r
Compliance Assistance/
Training/Outreach
•Develop compliance
assistance tools
•Conduct trainings for
industry
•Conduct trainings for States
and Regions
•Workwith States, Tribes,
Regions, and regulated
community to disseminate
training materials
•Develop websites and
outreach materials
H>
•Training sessions
on regulatons
•Compliance
assistance tools
such as checklists,
brochures and I
flowcharts
•Websites
•Commun cation via
conferences,
conference calls,
emails, webinars
Target Audiences
©
Outcomes
i
Short-term
Intermediate j
Long-term
Regions
External Influences
•Budget constraints
•Trade associations
•Presidential priorities
•State regulations
•Market shifts for hazardous waste management sector
•General economic conditions
Note: While generators
are legally responsible for
determination,
transporters, brokers and
Treatment, Storage and
Disposal Facilities
(TSDFs) frequently
engage in determination
activities
V.
•Compliance with
hazardous waste
determination
regulations
•Correct waste
determination
•Proper
management and
disposal of
hazardous waste
•Reduced
hazardous
waste releases
and improper
disposal
•Better
protection of
human health
and ecology
and reduced
economic
damages
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• Contextual/External Factors: factors not directly controlled by the national HW determination
process that may influence compliance. For example, market shifts in the FiW management sector,
specifically the trend toward FiW generators outsourcing FiW determination to waste haulers, may
affect the accuracy of HW determinations.
EVALUATION PURPOSE, INTENDED USES, AND AUDIENCE
The specific goals of this evaluation are to determine the extent to which the federal HW determination
program is working, identify potential problems that HW generators experience, and assess whether
ORCR can improve the regulations and better assist HW generators in achieving compliance. The study is
designed to evaluate how the federal HW determination program influences HW generator compliance. It
is not designed to evaluate HW generators' approaches to making HW determinations. The evaluation
results are intended help improve EPA's approach, methods, and activities designed to ensure compliance
by HW generators as they make HW determinations.
In addition, the evaluation may inform state HW programs as they partner with EPA to ensure HW
generator compliance. In particular, the evaluation highlights various state approaches to ensure
compliance. However, the purpose of this study is not to evaluate or critique state programs. Moreover,
the evaluation team recognizes that each state with delegated authority implements the RCRA regulations
within the context of its own state regulations, authorities, and budget limitations.
The evaluation may also be of interest to additional stakeholders, such as trade associations, assistance
providers, HW haulers, and HW generators themselves, although these groups are not the primary
audience for the evaluation report.
EVALUATION QUESTIONS AND CONNECTION TO THE LOGIC MODEL
This evaluation seeks to address six primary questions, which EPA ORCR staff identified in conjunction
with staff from EPA's OECA and ESD, with support from lEc. The evaluation questions are as follows:
1. What is the national non-compliance rate with the HW determination regulations? What is the
non-compliance rate with the HW determination regulations by sector?
2. What obstacles or challenges do HW generators face in complying with the HW determination
regulations?
3. What firm characteristics influence HW generators' compliance with the HW determination
regulations?
4. How do state program activities influence HW generators' compliance with the HW
determination regulations (i.e., are there particular state program approaches that are effective at
increasing compliance)?
5. How do assistance providers/HW service providers/trade associations' activities influence HW
generators' compliance with the HW determination regulations?
6. What changes do stakeholders recommend to make the national HW determination process more
successful? Specifically:
a. Proposed changes to EPA regulations?
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b. Proposed changes to EPA assistance/training/outreach/support activities directed at:
i. HW generators?
ii. Assistance Providers/HW Service Providers/Trade Associations (i.e., those that
influence HW generators)?
iii. States?
c. Proposed changes to EPA compliance monitoring and enforcement mechanisms (including
self-audit policy) to improve compliance?
Each of the evaluation questions corresponds to one or more points on the logic model, as shown in
Exhibit 2. In this way, the evaluation tests whether the program is working as intended and described in
the logic model.
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EXHIBIT 2. Evaluation Questions and Connection to the Logic Model
EVALUATION QUESTION
CONNECTION TO THE LOGIC MODEL
1. What is the national non-compliance rate with the HW
determination regulations? What is the non-compliance rate with
the HW determination regulations by sector?
2. What obstacles or challenges do HW generators face in complying
with the HW determination regulations?
3. What firm characteristics influence HW generators' compliance with
the HW determination regulations?
4. How do state program activities influence HW generators'
compliance with the HW determination regulations ?
C,D,E,G
D,G
D,G
5. How do Assistance Providers/HW Service Providers/Trade
Associations' activities influence HW generators' compliance with
the HW determination regulations?
D,G
6. What changes do stakeholders recommend to make the national HW
determination process more successful? Specifically:
a. Proposed changes to EPA regulations
b. Proposed changes to EPA
assistance/training/outreach/support activities directed at:
i. HW generators
ii. Assistance Providers/HW Service Providers/Trade
Associations (i.e., those that influence HW generators)
iii. States
c. Proposed changes to EPA compliance monitoring and
enforcement mechanisms (including self-audit policy) to
improve compliance
A,B,C
The remainder of this report is organized as follows:
• Chapter 2 describes the evaluation methodology, including sources of data and types of analysis
conducted, as well as the limitations of this approach.
• Chapter 3 discusses the findings from the evaluation. The chapter organization follows the six
primary evaluation questions and is informed by interviews and discussions with generators, state
officials, HW service providers, assistance providers, and other stakeholders, as well as a survey
of federal facilities and an analysis of available information on compliance with HW
determination regulations.
• Chapter 4 provides overarching themes and the evaluators' recommendations.
Supporting material, including sample interview and discussion guides, are included in the Appendices:
• Appendix A: Hazardous Waste Determination Non-Compliance by Sector
• Appendix B: Theme Prevalence
• Appendix C: Stakeholder Recommendations, Organized by Recommendation Type
• Appendix D: Interview Guide for Industry/Trade Association Representatives
• Appendix E: Interview Guide for Hazardous Waste Service Providers
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Appendix F: Discussion Questions for Hazardous Waste Generators
Appendix G: Discussion Questions for EPA Regional Compliance Assistance Coordinators
Appendix H: Discussion Questions for Small Business Assistance Providers
Appendix I: Discussion Questions for Sector-based Assistance Providers
Appendix J: Discussion Questions for EPA Regional Enforcement Managers
Appendix K: Discussion Questions for State Associations
Appendix L: Discussion Questions for Case Study States
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CHAPTER 2 | METHODOLOGY
This chapter summarizes the methodology used to answer the evaluation questions, including the data
sources and approach to analyzing the data. The chapter also highlights limitations of this methodology.
DATA SOURCES
This evaluation draws on multiple data sources to answer the evaluation questions. The key sources of
information include: (1) EPA's RCRAInfo database, (2) statistical compliance rate data, particularly
drawn from the state Common Measures Project and state Environmental Results Programs (ERPs), (3)
EPA meetings with state officials (4) interviews and discussions with various stakeholders, and (5) a
survey of federal partners with first-hand experience in HW determination compliance. Most of the data
used for the evaluation are qualitative in nature (e.g., input gathered during interviews, discussions, and
surveys); the main sources of quantitative data are EPA's RCRAInfo database and state statistical
compliance rates. The federal facilities survey provides both qualitative data (in the form of answers to
open ended questions) and limited quantitative data (in the form of answers to close ended questions,
where lEc could calculate the percentage of respondents selecting each answer choice). The data were
gathered by both EPA and lEc, although lEc conducted all of the analysis and prepared the
recommendations included in Chapter 4. The text below describes each of these data sources in more
detail.
RCRAInfo
RCRA requires entities that generate, transport, treat, or store HW to provide information about their
activities periodically to state environmental agencies. This information, along with information related to
the characteristics of HW generators, is compiled in the RCRAInfo database. In addition, state and
Regional EPA offices conduct inspections of HW generators and enter information about the inspections
and any resulting violations into RCRAInfo. This database may be queried for a broad range of data,
including compliance with federal and state regulations.2
lEc worked with EPA staff to query the RCRAInfo database as described later in this chapter (see the
section on Data Analysis). The EPA Office of Enforcement and Compliance Assurance, Office of
Compliance Enforcement Targeting and Data Division Media Systems ran the queries to extract the
datasets requested by the evaluation team. lEc then summarized and described the data, and used it to
inform the remainder of the evaluation.
• For more information on RCRAInfo, see http://www.epa.gov/enviro/facts/rcrainfo/index.html
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Statistical Compliance Rates
In recent years, a number of states have undertaken initiatives designed to measure compliance using
statistically-based samples. These efforts have typically targeted sectors characterized by a large number
of small businesses (e.g., auto body repair shops and printers), where it is infeasible for state inspectors to
visit each shop regularly. In many cases, states have combined statistical sampling with targeted
compliance assistance efforts to improve sector compliance rates over time. lEc summarized available
information from states about statistical compliance rates to complement the RCRAInfo analysis in
answering evaluation question 1.
EPA Meetings with State Officals
ORCR program staff attended or held five meetings with state regulators responsible for managing
delegated state HW programs; lEc attended four of these meetings. These meetings allowed state
regulators, inspectors, and assistance providers to share feedback about their experience with HW
determination. The session formats were generally similar; EPA asked states to comment on topics such
as:
• Similarities and differences between the state and federal programs;
• Challenges HW generators face in HW determination;
• Factors that influence HW generators' ability to accurately conduct a HW determination, such as
firm characteristics; state program characteristics; and influence of assistance providers, HW
service providers, and trade associations;
• Approaches states use in implementing their programs; and
• Recommended changes to the HW program.
At all five meetings, EPA and/or lEc took detailed notes. lEc used the information collected during these
meetings to inform responses to the evaluation questions and to help design interview and survey
questions for use during subsequent data collection. Exhibit 3 lists the groups and states represented at
each meeting. Overall, the general discussions allowed input from at least one representative from each
of 20 states.
EXHIBIT 3. Overview of General Discussions
GROUP
Vermont state regulators*
New Hampshire state regulators*
Association of State and Territorial
Solid Waste Management Officials
(ASTSWMO) meeting
STATE(S)
REPRESENTED
VT
NH
AL
AR
MA
Ml
MO
MT
NV
PA
DATE OF MEETING
September 27, 2010
September 28, 2010
April 19, 2011
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GROUP
201 1 Small Business
Ombudsman/Small Business
Environmental Assistance Program
(SBEAP) State Partner Training
Northeast Waste Management
Officials' Association
STATE(S)
REPRESENTED
GA
IA
IL
KY
NH
OH
SC
TN
Wl
NJ
NY
DATE OF MEETING
May 4, 2011
May 24, 2011
* Notes for these meetings were combined into a single file.
Interviews and Discussions with Stakeholders
Responses to interviews and open discussions with stakeholders provided information to address many of
the evaluation questions. lEc and EPA gathered input from industry representatives, including trade
associations, HW generators, and HW service providers whose clients are HW generators. lEc also
conducted case studies in three states, consisting of interviews with state representatives and open
discussions with individual generators and assistance providers. In addition, ORCR provided lEc with
additional notes and comments from prior discussions with various stakeholders including, retailers,
hospitals, and state agencies. Finally, lEc conducted a general discussion with EPA Regional
representatives in order to get their perspective. Each of these data sources is described below:
1. Industry representatives. lEc selected eight industry trade associations to interview, based on
information from the RCRAInfo queries about which sectors appear to have particular
compliance issues. lEc interviewed seven of these industry representatives and EPA ORCR staff
interviewed one. In addition to industry trade associations, lEc interviewed three HW service
providers who consult with HW generators regarding HW determination. Questions for industry
representatives addressed challenges they have experienced with HW determination, factors that
influence their HW determination decisions (e.g., concerns about enforcement, availability of
compliance information, and costs of compliance), sources of information about compliance, and
recommended changes to the HW determination process. For all interviews, lEc or EPA sent the
interview guides to the interviewees in advance to allow them to consider the questions before the
interview. The interview guides included an introduction that briefly explained the background
of the evaluation and how the information was to be used. To encourage candor, lEc offered
interviewees anonymity (i.e., lEc did not include their names or attribute specific positions to
them in the evaluation report). All of the industry representative interviews were conducted by
telephone.
2. EPA Regional representatives. lEc participated in one regularly scheduled conference call with
EPA enforcement and inspection staff working on HW issues in the Regions. Prior to the call,
ORCR distributed a list of questions and requested feedback. During the call, lEc asked the
representatives for their perspectives on evaluation questions 2 through 6.
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3. State case studies. lEc and EPA conducted detailed case studies in three states that volunteered
to participate: Minnesota, Colorado, and Texas. lEc selected these case study states based on their
willingness to participate, characteristics of the program, and whether they were able to gather a
group of generators for a general discussion. In each case, lEc and/or EPA traveled to the state to
conduct interviews in person. The goal of the case studies was to gather information about the
history and context of each state's HW determination programs, and explore the strengths and
limitations of these programs with input from state representatives, individual generators, and
other stakeholders. For the case studies in Minnesota and Texas, lEc conducted a two-day trip to
the state. ORCR conducted a two-day trip for the Colorado case study and lEc participated by
phone. Each case study included one or more interviews with state representatives to explore how
the state programs operate, how state regulators interact with their federal counterparts at EPA,
and feedback about EPA's federal HW program. In one case (Texas), ORCR also conducted an
interview with the EPA Region. In each case, lEc conducted one or more group discussion(s)
with local HW generators to hear their experiences with HW determination and identify what
issues present particular challenges. (EPA and state representatives participated in part of the
meetings with generators, but then left the room at the end of the session to allow generators to
offer any additional feedback to the independent evaluators without regulators present.)
Survey of Federal Facilities
EPA surveyed HW generators that are federally owned and operated. The federal facilities specifically
invited to participate in the survey include 402 large quantity generators (LQGs) and 357 small quantity
generators (SQGs) in the RCRAInfo database for which EPA has email addresses. In addition, the survey
was advertised in FedCenter.gov and a link was included in the FedCenter Daily Newsletter, which is sent
via email to 10,000 subscribers, most of whom are federal environmental managers and staff.3 The
survey was open from August 11 through September 20, 2011, and 286 individuals responded to the
survey. The survey recipients represented facilities from a wide range of government agencies. The
greatest number of responses came from the US Department of Defense (47 percent of respondents),
Department of Veterans Affairs (12 percent of respondents), and Department of Homeland Security (11
percent of respondents). Respondents were located in all but seven US states and territories. A majority
of respondents were LQGs (57 percent of respondents), but SQGs were also represented (28 percent of
respondents), as were conditionally exempt small quantity generators (CESQGs) (14 percent of
respondents). EPA administered the survey and provided the results to lEc for analysis.
EPA asked survey respondents the following set of questions:
• What factors have helped you make more accurate HW determinations?
• Who generally makes your HW determinations?
• How helpful was the assistance in making HW determinations?
• How do you make HW determinations?
• How helpful was the method of making HW determinations?
3 Since EPA is not subject to the Paperwork Reduction Act when surveying federal partners, these facilities represented a unique opportunity to
gather information directly from a large number of generators in an efficient manner.
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• What factors have helped you make more accurate HW determinations?
• If you had an opportunity, what would you want EPA or your state to do to help facilities like
yours make HW determinations more effectively?
• Which federal agency are you a part of?
• In what state or territory is your federal facility located?
• What is your federal HW generator regulatory status?
• Please provide a rough estimate of number of different HW streams generated annually.
• Do you have any additional input about making HW determinations?
Summary of Data Sources
In total, when all data sources are included, lEc and/or EPA conducted 11 interviews and 16 open
discussions and administered the survey of federal facilities as a part of this evaluation. Each open
discussion included numerous participants. In addition, EPA ORCR provided notes from six additional
data sources. Note that interview questions varied by the data source (e.g., the interview questions for
industry representatives differed from the questions for HW service providers.) Appendices F through N
provide a sample of the interview and discussion guides used. Exhibit 4 describes the 34 data sources.
EXHIBIT 4. Overview of Data Sources
DATA SOURCE
Industry Representative - retailers
Industry Representative - metal foundries
Industry Representative - paint and coatings manufacturers
Industry Representative - hospitals/pharmaceuticals
Industry Representative - automotive repair and maintenance
Industry Representative - printers
Industry Representative - printed circuit board manufacturers
Industry Representative - chemical manufacturers
HW Services Provider
Hazardous Waste Services Provider
HW Services Provider
New Hampshire and Vermont state representatives
ASTSWMO Meeting
SBEAP State Partner Training
Case Study - Texas, Dallas Chamber of Commerce
DATA SOURCE TYPE
Interview
Interview
Interview
Interview
Interview
Interview
Interview
Interview
Interview
Interview
Interview
Open Discussion
Open Discussion
Open Discussion
Open Discussion
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DATA SOURCE
Case Study - Texas, Fort Worth Chamber of Commerce
Case Study - Texas Commission on Environmental Quality
(TCEQ)
Case Study - TCEQ Small Business and Local Government
Assistance
EPA - Region 6
Case Study - Minnesota, State and County Inspectors
Case Study - Minnesota, Local Generators
Case Study - Colorado, Local Generators
Case Study - Colorado, Colorado Department of Public Health
and Environment (CDPHE)
EPA - Regional Enforcement Managers
EPA - Regional Compliance Assistance Coordinators
Northeast Waste Management Officials' Association
EPA - Office of Enforcement and Compliance Assurance (OECA)
Site Visit - Holy Cross Hospital, Silver Spring, MD
ASTWMO Colorado Memo
Wal-Mart Public Comment on Retrospective Review
Home Depot Public Comment on Retrospective Review
Site Visit - North Memorial Hospital, Abbot Northwestern
Hospital and Capital Returns Inc. (MN, WS)
ETC (trade association for HW handlers)
Survey of Federal Facilities
TOTAL DATA SOURCES
DATA SOURCE TYPE
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
Open Discussion
EPA Provided Data Source
EPA Provided Data Source
EPA Provided Data Source
EPA Provided Data Source
EPA Provided Data Source
EPA Provided Data Source
Survey
34
DATA ANALYSIS
The general analytical approach for the evaluation included a qualitative content analysis of the responses
from the 34 data sources, as well as a quantitative summary of RCRAInfo data, state data on statistical
compliance rates, and the federal facility survey responses. Specifics of the approach vary for each
evaluation question and are described below.
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Evaluation Question 1: What is the national non-compliance rate with the HW determination
regulations? What is the non-compliance rate with the HW determination regulations by sector?
Working with data extracted from the RCRAInfo database on federal comprehensive evaluation
inspections, lEc calculated non-compliance rates as:
The number of CEIs conducted by EPA or its contractors
with RCRA Part 262 Subpart A violations
divided by
The total number of CEIs conducted by EPA or its contractors
lEc used "262.A" (RCRA Part 262 Subpart A) as the violation type in the RCRA queries because 262.11
is not an allowed value for the VIOL TYPE field. RCRA 40 CFR Part 262 Subpart A is a broader part of
the regulations, which includes the Purpose, scope, and applicability of Part 262 (262.10), HW
determination requirements (262.11), and EPA identification numbers (262.12). In order to ensure
the most consistent data set, lEc limited its analysis to violations identified during Comprehensive
Evaluation Inspections (CEIs) conducted by EPA or its contractors. lEc included only violations related
to HW determination requirements, which are specified in RCRA regulations at Part 262 Subpart A. The
analysis included data from a ten year period (5/27/2001 - 5/27/2011). lEc calculated national non-
compliance rates overall, by generator class, and by sector.4
Note that inspectors often conduct targeted inspections (e.g., at facilities they believe are more likely to be
out of compliance). Since EPA does not generally conduct CEIs at randomly selected facilities, the
compliance rates derived from RCRAInfo are not representative of all regulated entities. Therefore, the
non-compliance rates derived from EPA do not provide a good indication of the absolute rate of non-
compliance for the total universe of regulated entities. Nevertheless, the compliance rate may be used to
provide approximate relative information about the extent of compliance (e.g., across generator classes
and sectors), with the understanding that inspection targeting protocols may vary in different EPA
Regions.
lEc also considered statistical compliance rates calculated as part of the Common Measures Project and
state Environmental Results Programs.
Evaluation Questions 2&3:
2. What obstacles or challenges do HW generators face in complying with the HW
determination regulations?
3. What firm characteristics influence HW generators' compliance with the HW
determination regulations?
lEc analyzed qualitative data from all 34 sources of information to understand what factors influence
generators' compliance with the HW determination regulations. These sources of information include
interviews and general discussions with states, EPA Regions, assistance providers, industry
4 lEc calculated non-compliance rates by sector for the 21 sectors with the highest overall number of hazardous waste determination violations.
Additional details on the specifics of the analysis are included with the findings in Chapter 3 of this report.
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representatives, generators and HW service providers, as well as open ended responses to a survey of
federal facilities. lEc identified 30 recurring themes that describe various obstacles, challenges, firm
characteristics, and situations that influence HW generators' compliance with HW determination
regulations. Chapter 3 discusses these findings.
To facilitate analysis, lEc assigned a weight for each theme as reflected in each data source. Weights are
based on the extent of discussion on each theme within a given data source, as follows:
• 0: Theme was not mentioned
• 1: Mentioned as an issue but not a focal point of discussion
• 2: Mentioned as an issue by multiple parties and/or focal point of some discussion
• 3: Noted as a major issue for multiple parties and focal point of a major discussion
lEc then calculated a response index for each theme by summing the weights of that theme across the 34
data sources. For example, if the theme "Generators have difficulty characterizing materials that are
subject to different regulations by multiple entities" came up as an issue but not as a focal point of
discussion (weight 1) in four data sources, and as a major issue for multiple parties (weight 3) in three
data sources, the response index for this theme would be (1 * 4) + (3 * 3) = 13.
Evaluation Question 4: How do state program activities influence HW generators' compliance with
the HW determination regulations?
lEc collected qualitative and anecdotal information during the interviews, discussion sessions, and federal
facilities survey to identify how state program activities influence HW generators' compliance. For
example, during interviews with HW generators, lEc explored the extent to which state program activities
and other factors influence their HW determination practices. In addition, lEc conducted three case
studies on states HW determination programs and the range of compliance assistance, monitoring, and
enforcement practices these states use. These findings are summarized in Chapter 3 of the evaluation.
Evaluation Question 5: How do assistance providers/HW service providers/trade associations'
activities influence HW generators compliance with the HW determination regulations?
Similar to the analysis conducted for Evaluation Questions 2 and 3, lEc analyzed qualitative responses to
the interviews, open discussions, and the survey of federal facilities to assess the influence of assistance
providers, HW service providers, and trade associations. In addition, lEc considered the results of a 2007
survey conducted by the Small Business Environmental Homepage.
Evaluation Question 6: What changes do stakeholders recommend to make the national HW
program more successful?
Drawing upon information gathered during the interviews, open discussions, the case studies, and the
federal facilities survey, lEc extracted and compiled stakeholder suggested recommended changes to
make the federal HW determination process more successful.
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LIMITATIONS OF THE EVALUATION
Throughout this study, lEc sought to use representative, objective, and robust data collection and
analytical approaches to the extent possible. However, as with all program evaluations, data collection
and analytical limitations exist, which we seek to make transparent in our findings. This study's
limitations include:
• Uncertainties associated with secondary data. Due to the inability to interview more than
nine HW generators directly (without preparing a formal Information Collection Request),
lEc primarily relied upon states, trade associations, and assistance providers to report their
perspectives about the challenges faced by individual HW generators. These reports may not
completely and accurately represent the experiences of the overall population of HW
generators.
• Data may not be representative. Given the limit on the number of interviews and open
discussions lEc was able to conduct, the qualitative data collected for this evaluation are not
comprehensive and may not fully represent the stakeholder groups of interest. However, lEc
sought to ensure the interviews, discussion sessions, and survey of federal facilities represent
a cross-section of sectors, regions of the country, and state program approaches. In addition,
the RCRAInfo data are not representative of all regulated entities, since the inspections are
often targeted, rather than conducted at a random sample of facilities.
• Inability to fully characterize state programs. It was not feasible for this evaluation to
characterize all state HW programs. Based on discussions with EPA to date, we conclude
there is no existing comprehensive categorization of state programs to draw on. Therefore,
lEc was not able to identify different types of state programs (e.g., those focused more on
enforcement vs. assistance, or those investing more or less resources in HW determination).
Given this lack of state program categorization, lEc was not able to compare non-
compliance rates for different types of state programs.
• Potential uncertainties in data on compliance rates. Quantitative data derived from the
RCRAInfo database may not be completely accurate or consistent with regard to HW
determinations. In particular, lEc understands that inspectors may code HW determination
violations differently, with some treating these violations as a "default" violation code. lEc
sought to ensure the greatest consistency in the RCRAInfo data by using only data from
EPA inspectors or their contracts (rather than data from state inspections, which might
follow different protocols).
• Potential inaccuracies in information reported by stakeholders. lEc summarized, but
did not verify, information reported by stakeholders. There were a few instances in which
EPA disagreed with stakeholders' characterizations of EPA actions or policies. lEc has
noted these instances in footnotes in the text. lEc encourages readers to understand the
qualitative findings as a summary of stakeholder perceptions. These perceptions are
important as EPA gauges how its regulations are implemented and perceived by the
regulated community.
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CHAPTER 3 | FINDINGS
This chapter describes the findings for six evaluation questions relevant to EPA's HW determination
program. The findings are based on interviews, discussions, and an analysis of compliance data at federal
and state levels, as described in the evaluation methodology. Overall, the findings suggest a number of
shared perspectives about the challenges associated with making HW determinations, and opportunities to
optimize the program, which we will consider further in the Summary of Findings and Recommendations
chapter.
QUESTION 1: WHAT IS THE NATIONAL NON-COMPLIANCE RATE WITH THE HW
DETERMINATION REGULATIONS? WHAT IS THE NON-COMPLIANCE RATE WITH
THE HW DETERMINATION REGULATIONS BY SECTOR?
To develop an overall picture of the frequency of HW determination violations, lEc analyzed data in
EPA's RCRAInfo database. As described in the evaluation methodology, the analysis is based on RCRA
262 Subpart A violations identified during Comprehensive Evaluation Inspections (CEIs) conducted by
EPA or its contractors over a ten-year period (5/27/2001 - 5/27/2011). Note that these compliance rates
are not based on a representative sample of all regulated entities.
HW Determination National Non-Compliance Rate
The analysis of non-compliance rates as determined by EPA/contractor-conducted CEIs shows a national
average non-compliance rate for RCRA Part 262 Subpart A of 34 percent.5 Exhibit 5 shows the number
of CEIs conducted, the number of CEIs with RCRA Part 262 Subpart A violations, and the resulting
national HW determination non-compliance rate.
EXHIBIT 5: National Overall HW Determination Non-Compliance Rate
COMPLIANCE INFORMATION BASED ON EPA/CONTRACTOR-CONDUCTED
INVESTIGATIONS REPORTED IN RCRAINFO
TOTAL NUMBER OF
CEIS CONDUCTED
OVER 10 YEARS
8405
NUMBER OF CEIS WITH RCRA
PART 262 SUPBART A
VIOLATIONS REPORTED
OVER 10 YEARS
2887
RATE OF NON-
COMPLIANCE
34%
What is the
non-
compliance
rate?
5 This calculation is based on the total number of CEIs with violations reported is divided by the total number of CEIs for all 57 states, territories,
and dependencies over the 10 year period analyzed. The calculation does not give equal weight to each state/territory. If the non-compliance
rate were calculated based on the percentage of CEIs in each state with violations reported, and then an average calculated across all 57 states,
territories, and dependencies, the rate would be 28 percent.
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Further analysis of non-compliance data suggests that small quantity generators (SQGs) tend to have
higher non-compliance with HW determination requirements than large quantity generators (LQGs).6
Exhibit 6 shows non-compliance rates for LQGs compared to SQGs. 7This analysis corroborates
anecdotal information gathered in this evaluation, where regulators, assistance providers, and generators
themselves suggested that larger, more sophisticated facilities with dedicated environmental staff were
more likely to understand their compliance requirements than smaller, less sophisticated facilities.
EXHIBIT 6: National HW Determination Non-Compliance Rates by Generator Class
LQG
SQG
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Percentage of federal CEIsthat reported a 262 A violation (CEIs with violation/total Federal CEIs)
What is the
non-
compliance
rate?
EPA conducted an independent analysis of overall non-compliance with RCRA regulations over the past five years, and found that there were not
substantial differences in compliance between LQGs, SQGs, or CESQGs. This difference between different classes of generators for overall non-
compliance with RCRA requirements vs. non-compliance with HW determination requirements may merit further investigation.
7 lEc also analyzed hazardous waste determination non-compliance rates for CESQGs, however, the number of inspections conducted at CESQGs was
relatively small, and definitions of CESQGs vary. For this reason, we have not included the CESQG non-compliance rate in Exhibit 6.
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In addition to information on non-compliance rates drawn from EPA's RCRAInfo database, lEc also
compiled information from states that have conducted their own inspections at statistically-based samples
of facilities in order to estimate compliance rates across a universe of facilities. The universe of facilities
was in some cases all facilities within a sector (e.g., auto body), and in other cases was all facilities within
a generator class (e.g., SQGs). lEc found data generated by 15 states related to whether regulated
facilities in the universe had identified all of their HW streams, as determined by trained inspectors or site
visitors. Exhibit 7 shows the observed percentage of facilities meeting this requirement in each state.
Overall, most states included in the analysis found that a majority of entities inspected had identified all
of their HW streams or had conducted a complete and accurate HW determination.
The results of this analysis of state data differ from the analysis of EPA's RCRAInfo data. The
differences may be due to several reasons. First, EPA inspections covered both LQGs and SQGs from a
wide variety of sectors, while the state inspections were primarily at smaller facilities (SQGs or auto body
shops). Second, the state inspections were based on random samples, while the EPA inspections were
likely targeted. Finally, the wording of the questions for the state inspections differed from the standards
for determining compliance that EPA inspectors and contractors use. Most states asked about identifying
all waste streams, but did not ask about accurate identification. The state that asked whether entities had
"conducted a complete and accurate HW determination" (Delaware) reported a much lower percentage
of entities that met this standard, compared to other states. Overall, the information from the analysis of
state data and RCRAInfo data are not directly comparable, and it is also difficult to make direct
comparisons in compliance rates between states that use different inspection questionnaires.
Non-Compliance Rates by Sector
lEc analyzed HW determination violations by sector. To conduct this analysis, lEc first identified the 21
sectors with the highest overall number of RCRA Part 262 Subpart A violations identified during CEIs
conducted by EPA or its contractors during the 10 years between 5/27/2001 and 5/27/2011 (for a full list
of these sectors, see Appendix C). Using data in RCRAInfo, lEc then worked with EPA to identify the
number of CEIs conducted in these sectors and to calculate sector-specific non-compliance rates. Based
on this analysis, Exhibit 8 shows the 10 sectors with the highest HW determination non-compliance rates
amongst the 21 sectors. These sectors include both manufacturing industries and colleges and
universities, which have long been a focus for EPA's HW determination program, as well as hospitals,
which have been a more recent focus for EPA's program.
What is the
non-
compliance
rate?
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EXHIBIT 7: Percentage of Facilities That Had Identified All HW Streams, Based on Statistical Samples
STATE
Maine
Massachusetts
New Hampshire
Colorado
Vermont
Connecticut
New York
Rhode Island
EPA Region 5 (Michigan,
Indiana, Ohio, Illinois,
Wisconsin, and Minnesota)
Washington
Delaware
SOURCE OF DATA
Common Measures Project: States collected data at random samples of SQG
facilities in eight states between October 2007 and October 2008. Inspectors
used a checklist of questions related to HW. One of these questions is relevant
to HW determination: Has the facility identified all of its HW streams?
Conformance was determined based on: review of production processes, type of
wastes generated at these processes and whether or not they have been
characterized as HW. 8
Based on ERP baseline data collected in five states in 2010. Question wording:
Have you identified all of your facility's HW (i.e., have documentation of wastes
generated or have identified in some other manner wastes that are hazardous)?9
Based on auto body ERP Baseline data collected in 2008 or 2009. Question
wording: Has the facility identified all of its HW streams?10
Based on auto body ERP baseline data collected between 2003 and 2005. As
part of its ERP, Delaware measured the percentage of auto body shops that had
conducted a complete and accurate HW determination.'1'1
GENERATOR
TYPES
SQG
SQG
SQG
SQG
SQG
SQG
SQG
SQG
Auto Body
Auto Body
Auto Body
# SAMPLED
55
54
51
57
44
38
57
22
156
296
47
OBSERVED % OF FACILITIES THAT
HAD IDENTIFIED WASTE STREAMS
100%
94%
94%
91%
91%
90%
86%
86%
81%
73%
36%
8 The States Common Measures Project, Final Report June 19, 2009, Prepared by: Steven DeGabriele, Massachusetts Department of Environmental Protection, Susan Peck, Massachusetts Department of
Environmental Protection and Tara Acker, Northeast Waste Management Officials Association.
9 Personal communication, Renee Lesjak Bashel, Policy Development and Business Specialist-Engineer, Permits and Modeling Section, Bureau of Air Management Wisconsin Department of Natural
Resources, Renee.Bashel@Wisconsin.gov. Spreadsheet "Copy ofChecklistAnswerlmport_Final9-1-11.xls", tab Round 1 All, shows that 156 shops were inspected in the baseline sample, and inspectors
marked "yes" on Question D2 (Have you identified all of your facility's HW (i.e., have documentation of wastes generated or have identified in some other manner wastes that are hazardous) for 127 of
these shops. The presentation "Baseline results R5ERP-SEC1116201 l.ppt" provides additional background on the project.
10 Auto Body Pilot Project Evaluation Assessing the Environmental Results Program in Washington State August 2011 Washington Department of Ecology
11 Evaluation of Three Environmental Results Programs (ERPs) Final Report, prepared by lEc for US EPA's Evaluation Support Division, August 2009
3-4
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EXHIBIT 8: HW Determination Non-Compliance Rates for the Ten Sectors with the Highest
Non-Compliance Rates
What is the
non-
compliance
rate?
Printed Circuit Board
Manufacturing
Copper Foundries
Hospitals
Colleges, Universities,
Professional Schools
Fabricated Structural Metal
Manufacturing
Paint & Coating Manufacturing
Electroplating
Wood Preservation
Iron Foundries
Miscellaneous Manufacturing
46% (42/91)
93)
29% (132/457)
28% (11/39)
27% (52/192
27% (142/53(l)
42/167)
14/57)
25%
25%
23% (18/78)
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Percentage of federal CEIs that reported a 40 CFR 262 Subpart A violation
(CEIs with violation/total federal CEIs)
3-5
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QUESTIONS 2 ft 3: WHAT OBSTACLES, CHALLENGES, AND FIRM
CHARACTERISTICS INFLUENCE HW GENERATORS' COMPLIANCE WITH THE HW
DETERMINATION REGULATIONS?
lEc analyzed qualitative data from 34 sources of information to understand what factors influence
generators' compliance with the HW determination regulations. These sources of information include
interviews and general discussions with states, EPA Regions, assistance providers, industry
representatives, generators and HW service providers, as well as open-ended responses to a survey of
federal partners.12 lEc identified 30 recurring themes that describe various obstacles, challenges, firm
characteristics, and situations that influence HW generators' compliance with HW determination
regulations. The following sections discuss these findings.
To facilitate analysis, lEc assigned a weight for each theme as reflected in each data source. Weights are
based on the extent of discussion on each theme within a given data source, as follows:
• 0: Theme was not mentioned
• 1: Mentioned as an issue but not a focal point of discussion
• 2: Mentioned as an issue by multiple parties and/or focal point of some discussion
• 3: Noted as a major issue for multiple parties and focal point of a major discussion
lEc then calculated a response index for each theme by summing the weights of that theme across the 34
data sources. For example, if the theme "Generators have difficulty characterizing materials that are
subject to different regulations by multiple entities" came up as an issue but not as a focal point of
discussion (weight 1) in four data sources, and as a major issue for multiple parties (weight 3) in three
data sources, the response index for this theme would be (1 * 4) + (3 * 3) = 13. Appendix D shows the
response index for each of the 30 themes, as well as the number of data sources with a weight of 1, 2, and
3, and the overall percentage of data sources which mentioned the theme.
Many of the themes we identified are interrelated. To organize these findings, we characterize the themes
using three overarching categories of challenges to generator compliance: (1) challenges related to the
regulations, (2) challenges related to generators, and (3) challenges related to regulatory agencies. In the
following sections, we break down each category into more detailed sub-categories, and elaborate on each
theme as described by the respondents. Within each sub-category, the themes are ordered by their
response index (which is shown in parenthesis), from highest to lowest.
Note that in some instances, stakeholders raised questions or concerns that ORCR believes it has
addressed (though stakeholders may not have been aware of this). This report includes information
on ORCR's guidance or resources in the footnotes, for general reference.
Exhibit 9 illustrates the prevalence of each overarching category of themes. The
percentage represents the sum of the response indices for all themes in the category
divided by the sum of the response indices for all themes in all categories. Wk factors
Stakeholders identified challenges related to the regulations themselves as the most ^j^jgj influence
compliance?
Collectively, we call the individuals who provided feedback as part of this evaluation "respondents" or "stakeholders.
3-6
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prevalent theme, closely followed by challenges related to generator characteristics. Challenges related to
regulatory agencies were less prevalent. The following sections consider each of these types of
challenges in turn.
EXHIBIT 9: Prevalence of Different Types of Challenges Generators Face
Complying with HW Determination Regulations*
I Challenges related to
the regulations
Challenges related to
generators
i Challenges related to
regulatory agencies
* Percentage represents the sum of the response indices for each theme in the category, as a
percentage of the sum of all response indices in all categories
Challenges Related to the Regulations
The interviews and discussions suggest two overarching types of challenges to compliance related to the
regulations themselves: (1) difficulty understanding the regulations as written, and (2) difficulty
interpreting and applying the regulations to specific circumstances. Exhibit 10 illustrates that general
difficulty in understanding the regulations is more prevalent than the difficulty in applying the regulations
to specific circumstances.
EXHIBIT 10: Prevalence of Different Types of Challenges Related to the
Regulations*
iChallenge: related to the
regulations
Challenge: related to
generators
iChallenge: related to
regulatory agencies
'Percentage represents the sum of the response indices for each theme in the
sub-category, as a percentage of the sum of all response indices in the category
i Difficulty Understanding
the Regulations as written
Difficulty Interpreting and
Applying the Regulations
to Specific Circumstances
What
factors
influence
compliance?
3-7
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Difficulty in Understanding the Regulations as Written
The following themes demonstrate the challenges generators face with the language, writing style, and
substance of the HW determination regulations and their associated guidance documents. The response
index for each theme is included in parentheses.
• (41) Industry specific guidance and outreach would be most helpful: Stakeholders frequently
noted the importance of developing guidance documents and outreach materials for specific
sectors. Stakeholders seek guidance that references specific materials and equipment used and
situations encountered, so the individuals making the waste determination can understand
precisely how the regulations apply to them. Assistance providers report that they write nearly all
of their guidance in this manner and they believe it is the most useful approach.
"EPA's convoluted and
conflicting language poses
problems for experienced
jurists, much less for lay
persons attempting to apply
them in the everyday
workplace."
-- Industry Representative
• (38) HW determination regulations are generally confusing
and difficult to follow (e.g., narrative interpretations,
references to previous sections): Many stakeholders indicated
that generators struggle with the language used in the HW
determination regulations. The regulations are not linear and
contain frequent internal references and in some cases use
narrative descriptions to identify HWs, instead of explicitly
stating them. Generators find this writing style vague and easy to
misinterpret. A generator's inability to read the regulations and
confidently make a HW determination can lead to non-
compliance.
• (37) There is a need for more interpretation/guidance/definitive answers from EPA: Given
uncertainties about how to interpret the regulations as written, generators and other stakeholders
seek direct and definitive answers to questions about regulatory interpretations by EPA. One HW
services provider indicated that the RCRA Hotline used to serve this function, but now that it is no
longer available it is much more difficult to get a direct answer to questions about HW
determinations from EPA.13
Difficulty Interpreting and Applying the Regulations to Specific Circumstances
The following themes demonstrate the difficulties generators face with specific sections of the
regulations. In addition, stakeholders discuss specific situations that frequently cause generators to make
incorrect HW determinations.
• (49) Generators have difficulty making waste determinations for listed wastes: Making
waste determinations for listed wastes is the number one challenge faced
by HW generators in the waste determination process. This theme
received the highest response index, was the most frequently mentioned
issue, and was a primary focus of interviews and discussions more often
than any other theme. Stakeholders cited all of the listed wastes as
problematic, but they mentioned difficulties with F-listed and P-listed
wastes more than any other.
Q2&3
What
factors
influence
compliance?
13 EPA points out that the Agency does not make HW determinations for generators, and that EPA staff and contractors who used to staff the RCRA
Hotline cannot tell generators whether their site-specific waste is a HW.
3-8
-------
The narrative descriptions used for the F-listings present a
major source of confusion for generators. For example,
whereas U-listed wastes are specific substances (i.e.,
Acetone - U002), F-listed wastes are not explicitly stated.
The F-listed wastes include substances derived from
specific processes (e.g., quenching bath residues from oil
baths from metal heat treating operations where cyanides
are used in the process - F010), where the resulting waste
is ambiguous. On more than one occasion, respondents
said the F006 listing is particularly confusing because the
narrative describes only those wastes which are exempt
from the regulation, not those that are subject to it.
Stakeholders attributed confusion surrounding P-listed
wastes to the logic of the regulation, as opposed to the
way it is written. For example, according to one group we
spoke with, a used nicotine patch containing 80 percent of the original nicotine is not a P-listed
waste. However, the foil wrapper that the patch came in is considered a P-listed waste because it
contains nicotine residue. Additionally, one stakeholder indicated there is frequent confusion
about characterizing wastes from experiments at academic labs as P-listed FiW.14
• (34) Generators struggle with understanding the HW recycling regulations: Generators,
assistance providers, and regulators agree that FiW determination regulations are particularly
tricky with regard to recycling. For example, one stakeholder noted that the regulations do not
clearly indicate if a retailer is considered the generator when they collect used consumer
electronics and ship them to a third party to evaluate their recycling potential. Retailers say this
lack of clarity deters them from recycling consumer electronics because they are uncertain
whether they must ship them to the third party as FiW. 15 Generators and Regional inspectors also
struggle to understand whether a material awaiting recycling must be characterized and managed
as HW until that time when it is actually recycled.
"Change F006 nomenclature
from "electroplating" to be
more descriptive of the listing
by identifying all of the
processes covered in the F006
definition (i.e., cleaning,
stripping, etching, milling,
anodizing, and
electroplating.) Change the
F006 listing description to
identify what processes were
included in the listing, not
just those that were
excluded."
-- State Regulator
(22) Generators have difficulty making waste determinations for
characteristic wastes: Although not as problematic as listed wastes,
stakeholders noted that sometimes generators have difficulty making
determinations for characteristic wastes. One example is the practicality of
conducting a TCLP test on large or bulky items (e.g., Klystrons, tubes used
for the generation and amplification of ultrahigh-frequency current, which
weigh up to 450 pounds).
Q2&3
What
factors
influence
compliance?
M EPA notes that if a chemical is used in an experiment, the resulting waste would not be P-listed since the chemical would be used and a P-listed
HW by definition is an unused commercial chemical product.
15 See Tonetti, Robert. "EPA's Regulatory Program for 'E-Waste'" Office of Solid Waste, October 2007. This EPA presentation explains used
electronics are not wastes until determined by a third party. Available online at http://www.epa.gov/osw/conserve/materials/ecycling/docs/e-
wasteregs.pdf
3-9
-------
• (19) HW generators often mischaracterize peripheral waste: Stakeholders report that
generators often accurately characterize their primary waste streams but neglect to make a
determination for supplementary waste streams that come into contact with the primary HW
stream. For example, dry cleaners often do not think to evaluate lint from the cleaning process
that is contaminated with perchloroethylene as potential HW.
• (15) Generators have difficulty knowing when to make a waste determination during the
production process: Stakeholders frequently noted that EPA's definition of "point of generation"
causes significant confusion in HW determinations. In
particular, members of the retail sector struggle to apply this
portion of the regulations to their reverse distribution
process, whereby retailers send unsold products to a central
location and receive financial credit from the manufacturer.
The retailer decides the fate of these products at a central
location and if the retailer discards or recycles the products,
the retailer must make a waste determination. However,
according to the EPA regulations, the retailer is in violation
of the HW determination regulations because the
determination was not made at the "point of generation." In
addition to this concern, one stakeholder reported that the
literal interpretation of the "point of generation" definition
means that the person present when the waste is created
must make the determination, thus potentially preventing the
appropriately trained employee (who may not be present)
from making the determination.16
"It is currently unclear which
party is considered the
'generator' if a retailer
collects used consumer
electronics and sends them to
be evaluated by a third-party
that possesses the expertise
to determine whether they
can be refurbished or
recycled. If some of the
electronics are recycled by
the third-party instead of
refurbished, retailers may
face an enforcement action
for illegally transporting
hazardous waste."
-- Industry Representative
• (15) Generators are often confused about the
rules/interpretations with regard to empty containers: A number of stakeholders reported
having difficulty interpreting EPA's definition of empty containers. Of particular concern is their
application with regard to pharmaceuticals. One generator stated that it is illogical to require that
an empty pill bottle in a hospital setting be "triple rinsed using a solvent capable of removing the
commercial chemical product or manufacturing chemical intermediate"(40 CFR 261.7). In
addition, more than one stakeholder noted difficulty applying the
empty container rules to aerosol cans, saying that often generators will
forget to depressurize cans, therefore not rendering them empty. ^^^^. What
Q2&3
factors
influence
compliance?
16 For information about who can make HW determinations, see EPA memo regarding "Hazardous Waste Generated in Laboratories," from Elizabeth
Cotsworth, Director Office of Solid Waste (name changed to Office of Resource Conservation and Recovery on January 18, 2009) to RCRA Senior
Policy Advisors, EPA Regions I-X dated August 16, 2002. Available online at: http://www.epa.gov/osw/hazard/generation/labwaste/memo-
lab.htm
3-10
-------
(13) Generators inappropriately apply RCRA
exclusions/exemptions: Stakeholders report that generators find
the rules concerning wastes that are exempt or excluded from the
definition of solid waste and HW confusing and vague. Some
generators inappropriately apply exemptions to their waste
streams, to avoid managing them as HW. Others fail to apply the
exemptions and exclusions in legitimate situations because they
don't understand the regulations.
(7) Generators don't understand how to apply the "derived-
from" rule: Stakeholders reported that generators are confused
by the "derived-from" rule which requires residues from treating
listed wastes to be classified as listed HW. One stakeholder
claimed that according to the "derived-from" rule, water considered safe under the Safe Drinking
Water Act may be considered HW.
"Large quantity generators
may have the resources but
often times use them to
interpret the laws in ways
which are economically
favorable to them. For
example, many large firms
will inappropriately use RCRA
exclusions to avoid making a
hazardous waste
determination."
-- Federal Assistance Provider
• (6) Generators don't understand how to apply the "mixture rule": The "mixture rule"
confuses generators because like the derived-from rule, substances that may not test positive for
hazardous constituents are still considered HW.
Challenges Related to Generators
The interviews and discussions suggest three overarching types of challenges to compliance related to
generators: (1) lack of accurate or complete information to apply the regulations, (2) lack of time and/or
resources, and (3) generator characteristics/organization. Exhibit 12 shows that lack of information and
generator characteristics are the most prevalent types of challenges associated with generators themselves.
EXHIBIT 11: Prevalence of Different Types of Challenges Related to the
Generators*
• Challenges related to the
regulations
Challenges related to
generators
Challenges related to
regulatory agencies
i Generators Lack Accurate or
Complete Information to Apply
the Regulations
i Lack of Time and/or Resources
Generator
Characteristics/Organization
Q2&3
What
factors
influence
compliance?
* Percentage represents the sum of the response indices for each
theme in the sub-category, as a percentage of the sum of all response
indices in the category
3-11
-------
Generators Lack Accurate or Complete Information to Apply the Regulations
The following themes demonstrate how inaccurate or incomplete information can prevent generators from
correctly interpreting and applying the regulations. This lack of information may result in generators
making uninformed decisions about HW determinations, or relying upon inaccurate information provided
by third parties.
• (44) Reliance upon third parties (HW service providers, suppliers, disposers) for
information used to make determinations can result in generator determination violations:
Stakeholders indicate that generators regularly seek information from third parties when making a
HW determination due to their own lack of understanding with regard to the regulations.
Sometimes, third parties provide inaccurate information leading to HW determination violations.
This may happen because the supplier is also uninformed about the regulations, or in some cases
it may be due to a financial incentive. For example, respondents suggested that suppliers, who sell
products containing hazardous constituents, will tell generators that their product does not have to
be treated as HW when discarded, in the hope they will be convinced to purchase from them
instead of a competitor. Stakeholders also described this situation with regard to HW service
providers, reporting that they will offer generators a lower price to manage their waste than
competitors by determining it not to be hazardous. This topic is discussed in greater detail later in
this chapter (See Question 5)
• (30) Generators are often unaware that they are generating a HW at all and therefore
subject to RCRA: Stakeholders report that when many small businesses open, the owner is
typically not aware of the environmental regulatory obligations. Businesses such as auto body
shops and dry cleaners often do not understand that the waste
they produce is hazardous and therefore do not notify as
generators, nor manage their waste as HW.
(18) Generators often use the MSDS for waste
determinations but fail to account for materials that have
been mixed or altered during the production process: A
number of stakeholders, including both generators and assistance
providers, expressed frustration over the role of the MSDS in the
HW determination process. Generators often assume that the
MSDS provides all the information needed to make an accurate
determination, and may only learn this is not the case when they fail an inspection. They often
overlook the fact that a product's hazardous constituents may be altered or become more
concentrated during the production process, thus making the information on the MSDS invalid.
"The MSDS isn't the end point.
If a product constituent is less
than 1 percent, it's not listed
on the MSDS. When you point
out that the MSDS isn't the
answer, people get very
frustrated."
-- State Regulator
Q2&3
What
factors
influence
compliance?
3-12
-------
• (14) Generators do not understand when a waste should be
analyzed in order to make a HW determination vs. when
process knowledge is sufficient: Stakeholders report that the
lack of clear guidance as to what constitutes "generator
knowledge" leads to non-compliance, since generators and
inspectors sometimes disagree about when generator
knowledge is sufficient to make a determination.
• (12) Generators have difficulty understanding and/or
applying the analytical results of sampled waste streams:
Generators with little knowledge of their waste streams and/or
the HW determination regulations may not know what tests to
ask the lab to perform on their sample. In addition, the lab may
report the results of a sample in units not consistent with those
used in the regulations, requiring the generator to convert the
results into the appropriate units before making a determination.
"Sometimes when a company
has something tested, test
results come back but
companies don't know what it
means. The test results don't
say explicitly that it is
hazardous or not. Generators
wait for us to tell them, or
their vendor. Sometimes
vendors use invalid tests for
making decisions (or partially
valid, like total metals)
without explaining their
reasoning to the generator."
-- State Regulator
Generator Characteristics/Organization
A firm's characteristics, including its organizational structure can influence its compliance with HW
determination regulations. The following themes describe this relationship.
• (43) Lack of training/staff turnover: As many generators do not have staff focused on
environmental issues, staff who are not trained or specifically focused on HW management often
end up conducting HW determinations. Stakeholders reported that fewer generators have
dedicated environmental staff than in the past. Also, staff turnover, particularly during trying
economic times, leads to unqualified employees making HW determinations.
• (28) The size and/or sophistication of a firm may play a role in its ability to make accurate
determinations: Some stakeholders suggested that the size of the firm correlates to their
compliance with HW determination regulations because they are more likely to have the staff and
resources needed to be sophisticated about their waste streams
and the regulations. Other stakeholders disagree, and say that
small businesses that take the time and make the effort to
understand the regulations can do very well on compliance.
Thus size and/or sophistication of a firm may play a role in the
ability to make accurate determinations, but it may depend
greatly on the individual facility.
"We don't have big brother
who is going to come and
show us how to do it. Frankly,
a lot of us don't care until we
get into trouble."
-- HW Generator
(23) Generators are not concerned with HW determination
unless they are fined for non-compliance: On a few occasions generators
and other stakeholders stated that unless they are fined for non-compliance,
generators simply do not concern themselves with the management of their
HW streams, including proper waste determination.
Q2&3
What
factors
influence
compliance?
3-13
-------
• (16) Generators do not have procedures in place to ensure proper waste determination:
Generators without set procedures in place to make waste determinations may fail to catch
hazardous constituents that are introduced to the waste stream when the generator changes the
production process.
• (6) Facilities that have varying waste streams have difficulty with waste determination
compliance: Some generators report that they produce highly variable waste streams throughout
their business cycle, causing their generator status to fluctuate. This leads to general confusion
about the regulations and potential compliance violations because the generator must adhere to
different standards depending on their monthly generator status. While the stakeholders did not
say so explicitly, it appears likely that these fluctuations in waste streams cause difficulty for
making proper HW determinations because the constituents, as well as volumes, of waste are
subject to change. According to stakeholders, this issue is most prevalent amongst CESQGs that
generate quantities of HW which render them SQGs.
Quantitative information from the federal facilities survey also supports the idea that generator
characteristics and organization influence generators' likelihood of making accurate HW determinations.
The survey identified the factors that help federal facilities make more accurate HW determinations.
• As shown in Exhibit 12, survey respondents report that having processes and procedures in place
at the facility are top contributors to accurate HW determinations.
• Further, federal facilities indicated that knowing which analytical test to request was a strong
contributor to making accurate HW determinations.
EXHIBIT 12: Top 5 Factors That Help Federal Facilities Make More Accurate HW
Determinations
CONTRIBUTING FACTOR
Processes & procedures in place to help
characterize wastes
Knew which analytical test to request
when testing waste
Considered waste streams besides those
associated with production processes
Waste streams generated are easy to
characterize
Production process is straightforward
% STRONGLY AGREE OR AGREE
79%
71%
59%
56%
54%
Lack of Time and/or Resources
Many generators have difficulty making HW determinations because they lack the
time and/or resources to apply the regulations effectively to their business
operations. The following themes discuss these difficulties.
Q2&3
What factors
influence
compliance?
3-14
-------
"Analytical testing is very
expensive. Often times,
customers don't want to pay
for that, so you have to rely
on customer knowledge."
-- HW Service Provider
Representative
(29) Cost constraints can lead to HW determination
violations: Generators sometimes avoid having a waste
stream analyzed or fail to characterize something as
hazardous due to the high cost associated with testing a waste
sample, and transporting and disposing of HW.
(14) Generators are too busy or overwhelmed to keep up
with compliance requirements: Generators must be diligent
in managing their waste streams to avoid falling into non-
compliance. Many generators simply do not find the time to do this, resulting in incorrect HW
determinations. This situation is more prevalent amongst small businesses where the employee
responsible for making HW determinations often has many other duties to fulfill. Producing
multiple waste streams further complicates the issue, since the generator must characterize each
of these waste streams individually. As a result of this situation, many generators hire HW service
providers to characterize, manage, transport, and dispose of their HW. While hiring these
contractors does not necessarily lead to inaccurate HW determinations, this can be the outcome
when generators do not have the capacity to give service providers correct information about their
waste streams.
Challenges Related to the Structure and Limitations of Regulatory Agencies
The interviews and discussions suggest two overarching types of challenges to compliance related to
regulatory agencies: (1) lack of resources/presence/attention and (2) lack coordination/consistency.
Exhibit 13 shows that both issues are common, but that lack of regulator resources/presence is a slightly
more prevalent concern.
EXHIBIT 13: Prevalence of Different Types of Challenges Related to Regulatory
Agencies*
i Challenge: related to the
regulation;
Challenges related to
generator:
I Challenge: related to
regulator/ agende:
Lack of
Reso urc es,1' P res enc e; Atte nti on
Lack of
Coordination/Consistency
* Percentage represents the sum of the response indices for each theme in the
sub-category, as a percentage of the sum of all response indices in the category
Q2&3
What
factors
influence
compliance?
3-15
-------
Lack of Regulator Resources/Presence/Attention
The following themes illustrate how regulating agencies' lack of resources, presence, and attention
devoted to the HW determination process can influence generators' compliance with the regulations.
• (23) Reduced funding at the federal, state, and county level has eliminated many generator
outreach and training programs: Several stakeholders indicated that budget cuts have
eliminated programs designed to aid generators' compliance with RCRA both at the state and
federal level. Most notable of these is the EPA RCRA Hotline, which generators, assistance
providers, and EPA representatives praised as being an effective tool for increasing compliance.
• (18) RCRA does not keep up with changes to products and/or technology: Stakeholders
report that industry technology advances more rapidly than the regulations which govern the
management of their wastes. Some of these advances
eliminate the hazardous constituents traditionally generated
by industrial processes. However, the narrative descriptions
of F-listed wastes require the byproducts of certain processes
to be characterized as hazardous, regardless of the presence
of hazardous constituents. This confuses and frustrates
generators, as changes to cleaner and safer technology do not
translate to less stringent waste regulations. Adding to this
confusion is the fact that some wastes, which industry
representatives believe are hazardous and should be regulated
as such, are not regulated as HW. For example, several
people who deal with the pharmaceutical industry expressed frustration that certain chemotherapy
drugs are not regulated as HW, despite the fact that these substances are harmful to the
environment and human health.
"EPA should be nimble enough
to handle wastes that are
likely to damage the
environment but are not
covered under federal
hazardous waste laws. EPA
should take the lead on
emerging wastes."
-- State Regulator
• (14) A lack of presence by regulating entities dissuades generators from being attentive to
waste determinations: Some generators are willing to risk that they will not be inspected rather
than make the necessary effort to make an accurate HW determination. The fact that state and
EPA inspectors rarely or never visit some generators exacerbates this situation.
• (3) Regulators lack the expertise needed to make effective interpretations of HW
determination regulations: Several respondents to the federal facilities survey raised concern
that their local or state regulators need additional training on how to make HW determinations,
and that their interpretations of the requirements are inconsistent or incorrect. Others point out
the need for EPA staff to have both broad and deep experience in industry when writing the
regulations and answering questions from generators.
Lack of Coordination/Consistency
The following themes describe the challenges generators face making HW
determinations due to a lack of coordination and consistency amongst regulations
and regulatory agencies.
What
factors
influence
compliance?
3-16
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(39) Lack of consistency of the regulations and how to interpret them at the different levels
of government is confusing to generators, leading to HW determination violations: Some
generators do not realize that they not only have to comply with federal regulations and guidance,
but also with their state waste determination regulations and regulatory interpretations that may
be more stringent or broader in scope. Those generators who are aware of this responsibility may
have difficulty, in part because they must reference multiple sources (state/federal) in order to
make a HW determination. In some states (e.g., Minnesota), local regulations that are more
stringent than those of the state confound the issue. Businesses that operate in multiple states
face the greatest challenge since they must comply with multiple states' regulations. This
situation makes it more difficult for these generators from
setting unified waste determination guidelines throughout
their company.
(14) Generators have difficulty characterizing materials
that are regulated by multiple authorities (e.g., EPA,
DOT, FDA, OSHA): Materials that are regulated by
multiple authorities cause confusion among generators. For
instance, although a fire department may tell an auto body
shop that a rag previously containing a solvent can be dried
and thrown out, EPA requires the rag to be managed as an
F-listed FPvV and kept in a covered, labeled container.
"The FDA requires us to
maintain an explanted
product [i.e., an implanted
medical device that has been
removed] for 10 years... It's a
hazardous waste that we must
dispose of according to the
EPA, but the FDA doesn't
allow us dispose of it. Who do
we listen to, EPA or FDA?"
-- HW Generator
QUESTION 4: HOW DO STATE PROGRAM ACTIVITIES INFLUENCE HW
GENERATORS' COMPLIANCE WITH THE HW DETERMINATION REGULATIONS?
This section examines the experience of a few states to explore how their program activities influence
HW determination, and to identify whether there are particular state program approaches that are effective
at increasing compliance. Three states ~ Minnesota, Texas, and Colorado ~ volunteered to assist EPA
with the evaluation by convening a group of generators and a group of state inspectors to provide their
perspectives on the HW determination regulations and how the programs in their state operate. The
diversity of state program features lends insight into the different ways that the federal HW determination
regulations are implemented at the state level. This section begins by summarizing the characteristics of
the three state programs, and then provides more detailed descriptions of each state's program .
Summary of State Approaches
The three state case studies suggest there is a wide range of state approaches to implementing the federal
HW determination requirements. For example, Texas has state requirements that match the federal
requirements, while Colorado and Minnesota have requirements beyond the federal
rules (e.g., Minnesota regulates wastes that meet the definition of its lethality
characteristic). Minnesota's program emphasizes both assistance (through an ^^^^ influence
extensive array of online fact sheets) and compliance monitoring (through m of state
inspections at the state and county level). Colorado's program emphasizes integrated ^^ programs.
compliance assistance and enforcement, whereby, for certain sectors, generators are
required to complete a self-certification questionnaire designed to raise awareness of
the requirements. Generators that do not return the questionnaire are subject to inspections and
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enforcement. Colorado also offers extensive training, on-site assistance, and a customer assistance
hotline. Texas' program conducts audits of waste profiles generators submit as a way to extend its
coverage, since the state is only able to inspect a small percentage of the regulated universe each year.
Like Colorado, Texas provides a hotline and training, and offers compliance assistance to help generators
understand their compliance requirements.
Common challenges across all three states include: (1) raising awareness of HW determination
requirements, particularly among small businesses and new businesses that may be completely unaware
of their obligations, and (2) maintaining sufficient inspection "coverage" to motivate facilities to make the
effort to comply. All three states described here have made efforts to translate the federal and state
requirements into "plain language," and two of the three states have undertaken sector-specific initiatives
to focus on translating the requirements as they apply to specific waste streams and industries.
Minnesota
The following section describes the Minnesota HW determination program, including the relationship of
the state to the EPA Region and local regulators, compliance monitoring and enforcement activities,
assistance activities, and information on compliance.
Relationship between State and Co-Regulators
The Minnesota Pollution Control Agency (MPCA) regulates HW generators in Minnesota, in cooperation
with EPA and county level regulators in the Minneapolis/St. Paul metropolitan area. Minnesota has
delegated authority for the RCRA HW program. MPCA holds monthly conference calls with EPA
Region 5 to share information, such as the status and outcomes of inspections. MPCA also meets with the
Region at the end of each year. The Regional EPA Criminal Investigation Division coordinates with the
MPCA and counties through quarterly meetings; MCPA also coordinates with the EPA Superfund
Regional representative. MPCA and the Region do coordinate to some extent on sector-specific
initiatives, though recent coordination has been less formalized than in past years, and in some cases
MPCA undertakes initiatives independently (e.g., the plater initiative). MPCA staff do not typically
accompany EPA Regional staff on inspections or enforcement actions, since this is seen as an inefficient
use of resources; however, county staff do typically accompany EPA staff. EPA Region 5 has not
coordinated with MPCA on compliance assistance efforts. The state reports that in some cases Regional
assistance has been based on federal requirements, which led to inaccuracies since the state's HW
regulations are sometimes different than the federal requirements.
MPCA regulations go beyond the federal requirements. In particular, MPCA has created an additional
class of characteristic wastes (i.e., the lethality characteristic), which are
defined as those that can cause severe health effects when ingested, inhaled,
or absorbed through the skin. Examples include wastes containing bulk
chemotherapy wastes and used solutions containing more than 20 percent KA 0" J^06
formaldehyde.17 The state-only lethality characteristic regulates more wastes ||flF Pr°srams?
as HW than the federal requirements. In addition, MPCA regulates very
small quantity generators (VSQGs) that generate 220 pounds or less of HW
17 For more information see the Lethality Characteristic factsheet (Waste/Hazardous Waste #2.05 • May 2009) available online at
http://www. pea.state, mn. us/index. php/view-document.html?gid=4002
3-18
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per month
18
When adopting federal requirements, MPCA has traditionally transcribed the full language of the
requirements into the state rules. This means that any changes in federal rules do not take effect
automatically in Minnesota. More recently, the state has begun adopting some federal rules by reference;
in particular MPCA has adopted the federal universal waste rules. This has benefits in that any changes at
the federal level are adopted more quickly into the state regulations; however, MPCA has had to weigh
the efficiency of adopting federal rules by reference with the implications for state regulations. For
example, when MPCA adopted the federal universal waste rules, the existing state storage requirements
for lead-acid batteries as well as fluorescent and high-intensity discharge lamp management requirements
were no longer in effect. In general, the MPCA is hesitant to adopt federal rules by reference where
doing so would preempt existing state-specific requirements. Therefore the state prefers to have some
flexibility in adopting the federal requirements.
Minnesota is unusual in the degree of county involvement in HW regulation. The state legislature
enacted a statute that requires the seven counties in the Minneapolis/St. Paul metropolitan area to operate
HW regulatory programs, while the MPCA's HW program covers the 76 counties in the rest of the state.
The county programs were authorized by the state of Minnesota in 1980, prior to the start of the state
RCRA program. Each county has its own HW ordinance; these are at least as stringent as the state
regulations (and in a few cases, they are more stringent). For example, in some cases counties regulate
Freon as HW, which is not regulated as HW at the state level. The counties regulate all sizes of
businesses (LQGs, SQGs, and VSQGs), licensed treatment storage and disposal facilities (TSDFs), and
facilities that are processing appliances and electronics. The counties conduct joint enforcement with the
state, and most counties can write criminal citations.
In Minnesota, the seven Minneapolis/St. Paul metropolitan counties generally have more resources than
the state. Most of the counties' programs are self-funded (e.g., through fees and fines paid by generators)
for a majority of their program costs. In contrast, MPCA relies primarily on state funding. In part as a
result of state budget cuts, the MPCA staff devoted to HW has declined, the state has fewer inspectors and
permitting engineers, and the state no longer has staff devoted to technical assistance.
The counties and MPCA coordinate closely with each other to ensure consistency in their interpretation of
the regulations. However, there are some differences in interpretation between the counties and the state.
For example, regarding recycling parts washers, MPCA and some counties differ on the appropriate
approach to evaluating the solvent in the upper basin of parts washers (the state says this solvent should
be counted as HW, whereas certain counties do not count the parts washer solvent toward generator size
or charge any HW fees for this waste in order to encourage recycling). MPCA and the metropolitan
counties participate in monthly meetings to identify and seek to resolve any
potential differences in interpretation.
.^^^
Influence
Compliance Monitoring and Enforcement Approach
MPCA points out that generators who have never had contact with regulatory ^IflF Pr°srams?
authorities do not always think to identify their wastes. While this was
especially true during the 1980s, it still happens today. MPCA reports that
18 For information on MPCA's requirements for VSQGs, see the factsheet for Minimal Quantity Generators of Hazardous Waste (Waste/Hazardous
waste #1.50 • May 2011) available online at http://www.pea.state.mn.us/index.php/component/option,com_docman/task,doc_view/gid,9006
3-19
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inspectors are often the driver for generators to evaluate their wastes. Thus, MPCA and its co-regulators
in the metropolitan counties place particular emphasis on reaching out to as many generators as possible
through inspections.
As a general rule, EPA expects states to inspect at least 50 percent of non-government TSDFs and at least
20 percent of LQGs in their jurisdictions each year.19 In addition to its commitments to inspect TSDFs
and LQGs, MPCA also seeks to inspect each SQG every five years when the state has the resources to do
so. MPCA also responds to complaints outside the metro area, while county inspectors respond to
complaints within the metro area. When possible, MPCA prefers to focus on risk-based initiatives (e.g.,
targeted inspections of health care facilities). MPCA reports that it is sometimes able to pursue these
initiatives under a "flex plan" with EPA (e.g., conducting an inspection at a health care facility instead of
an LQG), but that EPA does not always allow this flexibility, and the Agency is generally "driven by the
numbers."
The metropolitan counties vary in their compliance monitoring approaches, though all seven counties
report that they undertake initiatives focused on perceived risk. The counties with the largest number of
generators, Hennepin and Ramsey, report that they assign risk factors to companies, and that each
category of risk is inspected on a specified frequency. For example, Hennepin County assigns a risk factor
between one and nine to each company, based on company size, types of wastes generated, and
compliance history. Higher risk facilities get inspected once per year, lower risk once every five years,
and minimal generators20 may be inspected every seven years or less often (some are never inspected).
Hennepin County has conducted sector initiatives targeting scrap yards, healthcare, retail stores and
wholesalers, drycleaners, metal finishers. Ramsey County takes a similar approach to applying risk
factors, with a focus on the industry type and amount and types of wastes generated. Ramsey County has
identified drycleaners, metal finishers, health care, scrap yards, and auto body shops as relatively risky
sectors for HW. The county inspects each risk category at a specified frequency: high risk generators are
inspected once per year, medium risk generators every 18 months, and low risk generators every three
years. Dakota County also bases its
Influence
of state
programs?
19 U.S. Environmental Protection Agency, Office of Enforcement and Compliance Assurance Compliance Monitoring Strategy for the RCRA Subtitle C
Program, January 2010, page 26. http://www.epa.gov/compliance/resources/policies/monitoring/rcra/rcracms.pdf
20 Minimal generators are a subset of VSQGs generating less than 100 pounds per year of non-acute HW and no acute HW. Although minimal
generators are regulated as such by the MPCA, not all counties recognize this classification. See http://www.pca.state.mn.us/publications/w-
hw1-50.pdf
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inspection frequency on generator risk and size. In the metropolitan counties with smaller numbers of
generators (Washington, Carver, and Dakota), county inspectors seek to attain a certain coverage (e.g.,
inspecting SQGs and LQGs every year in Carver and Scott Counties, and inspecting all generators every
year in Washington County).
All counties take active approaches to identify all generators in their jurisdictions. For example,
Hennepin County uses a self-audit program, whereby the county purchases lists of companies from
vendors, follows up with phone calls to see which of these companies may be HW generators, and then
mails out a self-audit form to potential generators to alert them of their regulatory requirements. If a
facility does not return the self-audit form, the county will follow up. This approach allows the county to
identify companies that are avoiding the regulatory system altogether. The smaller counties also focus on
identifying new generators through means such as reviewing HW manifests, gathering referrals from
other businesses, getting a list of businesses applying for new EPA ID numbers each month, coordinating
with city planning departments that require HW licenses, purchasing software with a list of all businesses
in the county, and just driving around looking for new businesses.
Exhibit 14 shows the number of generators and inspectors in each of the six metropolitan counties that
participated in a discussion as part of this evaluation, along with the number of inspections that these
counties conduct per year. (One metropolitan county, Anoka County, was not available to participate in
this discussion.)
EXHIBIT 14: Generators and Inspectors in Minnesota Metropolitan Counties
COUNTY
Hennepin
Ramsey
Dakota
Washington
Carver
Scott
NUMBER OF
COUNTY
INSPECTORS
6
5
3
3
1
1
NUMBER OF
LICENSED
GENERATORS
5,000
1,900
1,500
475
400
400
NUMBER OF
INSPECTIONS
PER YEAR
1,000
1,600
450-500
475
125-130
100-120
PERCENTAGE OF
LICENSED GENERATORS
INSPECTED PER YEAR
20%
84%
30% - 33%
100%
31% -33%
25% - 30%
Influence
of state
programs?
3-21
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Influence
of state
programs?
MPCA notes that enforcement is one of the most powerful tools to motivate
compliance, but that it is one of the weaker aspects of its program. MPCA
points out that the Agency is currently limited to a 30-day window for
requiring corrective actions (a state-specific requirement), which is often
difficult to meet given the time needed to get lab results back. Moreover,
Administrative Penalty Orders are limited to $10,000 (another state-specific
limitation), which does not provide sufficient deterrence according to MPCA. The state can negotiate
settlements or take violators to court, but MPCA is limited by resources (e.g., the state is losing attorney
staff). MPCA would consider putting together a legislative
package to strengthen its enforcement tools, but the Agency
worries that this could result in unintended consequences (e.g.,
lower penalty amounts) if the issue is opened up for debate in the
legislature. MPCA believes that depending on the industry,
enforcement can be more effective than outreach, but that the
Agency needs better enforcement tools and support from EPA. For
example, it would be helpful from MPCA's point of view if EPA
would over-file in enforcement cases, to demonstrate the
seriousness of the violation.
"When MPCA takes action, it
has reverberations, and the
counties see deterrence. We
know that the 'gorilla in the
room' is EPA Region 5 or the
MPCA. That's hard to measure
but it's there."
-- State regulator
Assistance Approach
MPCA has invested considerable effort in providing fact sheets for generators covering a range of topics
(e.g., general requirements, guidelines on HW identification, sector-specific guidelines, and waste-
specific information).21 MPCA lists over 140 fact sheets and resources on its webpage, which serves as a
resource for the metropolitan counties as well as the state. MPCA will often refer generators with
questions to the fact sheets, but will make staff available for phone consultations to respond to questions
that the fact sheets do not address.. MPCA previously provided substantial outreach and training (e.g., up
to nine full-day workshops each year), but as resources have
dwindled, the state has focused its efforts on providing a
comprehensive set of fact sheets in lieu of other outreach. MPCA
points out that while the state has provided considerable outreach in
the past, in times of reduced budgets, the agency has had to limit
compliance assistance, monitoring, and enforcement activities
focused on generators that are not aware of their obligations or are
seeking to evade them.
The metropolitan counties do offer generator training, as well as
sector-specific outreach (e.g., in the health care sector and in scrap
yards). Ramsey County offers at least two or three sector-specific
trainings in high-risk sectors each year (e.g., metal finishers, health
care, drycleaners, and auto parts). Ramsey County also offers a
general training twice per year, as well as onsite training.
MPCA points out that a strength of its program is efforts, such as
"Generators do a better job
of evaluating wastes now than
they did 20 years ago, but
[HW determination] is still a
common violation, even at
generators that have been
visited repeatedly over the
years by inspectors. Some
generators don't get it at all
and will not evaluate their
wastes until they are visited.
The more sophisticated the
generator, the fewer
evaluation problems."
-- County regulator
21 See MPCA's Hazardous Waste Publication page for a complete listing of fact sheets: http://www.pca.state.mn.us/index.php/waste/waste-
permits-and-rules/waste-permits-and-forms/hazardous-waste-publications.html
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the health care initiative, that focus on emerging RCRA issues. In that effort,
the state and counties coordinated to focus first on education before following
up with enforcement. MPCA viewed the initiative as very successful. The state ^^L
has also had success with initiatives in the plating industry. In both of these M^^IB of state
cases the state conducted meetings with sector representatives. EPA helped mJ programs?
support these outreach programs through grants. MPCA and the counties
report there are more initiatives they would like to pursue (e.g., with the retail
sector) if they had sufficient resources.
Information on Compliance
MPCA reports that the most common HW violations are labeling violations, lack of weekly inspections,
and manifest violations, and that all of these categories of violations are more common than HW
determination violations. However, HW determination violations do still occur, particularly for less
obvious wastes (e.g., peripheral wastes) or for new processes.
MPCA rarely cites generators for failing to evaluate their wastes within 60 days of generation (a state
specific requirement that is largely ignored), unless they are disposing a large quantity of HW.
When MPCA places new emphasis on a sector (e.g., health care), generators are typically resistant at first.
But with persistent outreach, generators eventually accept their compliance requirements.
Texas
The following section describes the Texas HW determination program, including the relationship of the
state to the EPA Region, compliance monitoring and enforcement activities, assistance activities, and
information on compliance.
Relationship between State and Co-Regulators
Texas is located within EPA Region 6, and the state and Region cooperate to conduct inspections. The
Region and the state share responsibility for training inspectors, while the state takes primary
responsibility for conducting outreach to generators. The Region offers guidance to state inspectors as
needed with regard to HW determinations and RCRA applicability. Typically, Texas Commission on
Environmental Quality (TCEQ) staff will accompany the Region on EPA inspections, and the Region will
sometimes accompany TCEQ on state inspections (however, the Region is limited by the number of
inspectors it has: a total of eight for the five-state Region). The Region conducts a limited number of
inspections each year (48 in 2010, 20 in 2011) focused on LQGs and more complex operations like
centralized HW treatment facilities (TSDFs).
Among the Region 6 states, Texas has the largest volume of HW "lf you look at the numbers>
+ i .+. i , u fr r\ +•+ r> + /Q-7Q there are nearly 300,000
generated, and the largest number or Large Quantity Generators (878 '
• T j* T>r>- T •• no- r»nu no- business entities in Texas.
in Texas, compared to 329 in Louisiana, 138 in Oklahoma, 123 in
. , ,-,! • -KT n,r • x22 And how many enforcement
Arkansas, and 31 in New Mexico).
The TCEQ headquarters in Austin, Texas charges fees to generators,
writes permits, takes enforcement actions, issues regulations, and
provides guidance, while TCEQ field offices around the state conduct
investigations for compliance with HW permits and regulations.
agents [are there]? So if
you're off the radar screen,
no one will ever find you."
-- HW Generator
22 This information was provided during an interview with EPA Region 6 staff.
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TCEQ requirements are generally consistent with federal requirements.
TCEQ has a small business assistance program that reports directly to the
Executive Director of the Commission (rather than to the program office) of t t
to ensure confidentiality of assistance. The Small Business ^•97 programs?
Environmental Assistance Division (SBEA) provides statewide
compliance assistance services and has staff in most TCEQ field offices.
Compliance Monitoring and Enforcement Approach
TCEQ inspects approximately 400 generators each year. TCEQ's goal has been to inspect at least 20
percent of Large Quantity Generators a year (which would equal 175 LQGs), although TCEQ reports that
Region 6 recently approved an alternative plan, whereby the state will inspect 10 percent of LQGs and
conduct the remainder of its inspections at a combination of SQGs
and CESQGs. The state acknowledges that there are so many
generators in the state that TCEQ does not get to some of the
smaller generators very often, if at all. Given this limitation in
coverage, the state also conducts paper audits of waste
"It's not hard to find free
help if you know to look;
generators are grateful when
the state helps them."
characterizations that generators submit. Generators in Texas are
. , , . _, .,..,..,, --HW Generator
required to submit a profile of their individual waste streams.
TCEQ then randomly picks 560 of these profiles to audit each
year.
In fiscal years 2009, 2010, and 2011, TCEQ piloted an EPA-approved three-year risk-based inspection
strategy approach to identify the highest risk facilities to inspect (this pilot program was implemented in
Air, Water and Waste compliance monitoring programs at TCEQ). However, as of fiscal year 2012,
TCEQ's inspection targeting strategy for HW is based upon the "Compliance Monitoring Strategy for the
Resource Conservation and Recovery Act Subtitle C Program" (RCRA CMS), issued by EPA in 2010.
The RCRA CMS calls for states to inspect at least 50 percent of
non-government operating TSDFs and at least 20 percent of
LQGs in their jurisdictions each year. After TCEQ
headquarters provides each field office with a list of registered
generators in their jurisdiction, the field offices select generators
for inspection based on the date of the most recent inspection, " Generator
compliance history, and other factors.
"We've heard some peers say,
'I just keep my head down and
hope [the inspectors] don't
come by.'"
When TCEQ finds a violation, the state will issue either a Notice of Violation (for less serious violations)
or a Notice of Enforcement (for more serious violations). TCEQ has developed a guidance document that
categorizes violations according to their severity and provides field office inspectors with criteria for
initiating enforcement actions.
The Small Business Advisory Committees (SBACs) are made up of small business representatives, trade
associations and environmental professionals and provide feedback to the TCEQ on regulatory issues
facing small businesses. SBACs report that often small businesses are unaware of the RCRA regulations
until an investigator goes out to the site. For this reason, it is important for regulators to get out into the
23
U.S. Environmental Protection Agency, Office of Enforcement and Compliance Assurance Compliance Monitoring Strategy for the RCRA Subtitle C
Program, January 2010, page 26. http://www.epa.gov/compliance/resources/policies/monitoring/rcra/rcracms.pdf
3-24
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field to as many small businesses as possible. TCEQ's SBEA Division KB of state
conducts outreach to registered businesses and trade associations to try to V programs?
educate them about environmental regulations, but acknowledges that
facilities that have not registered with the state and do not belong to a
trade association are hard to find. These businesses tend to occur in rural areas (though they can be in
urban areas as well), and while they are required to identify their HW, they are often unaware of these
requirements and assume regulators will alert them of what they need to do. Businesses do alert each
other when inspectors are active in an area. Businesses also know who is registered and who is not
among their peers. Sometimes they will turn each other in through a complaint process.
Assistance Approach
TCEQ's SBEA Division, Field Operations and Waste Permits Divisions provide several resources to HW
generators to assist in making HW determinations, including one-on-one compliance assistance from
SBEA staff, assistance resources, and a range of assistance programs. For example, one resource is an
electronic checklist that provides a yes/no decision tree to assist generators in identifying if they have a
HW. EPA Region 6 reports that the checklist is helpful, provided that generators provide correct
information to answer the questions. SBEA also has prepared a booklet on HW geared toward Small
Quantity Generators.24 The TCEQ's Waste Permits Division has created a guidance document for
generators to assist them in classifying HW. This 53-page document offers an explanation of the
regulations, though it is not sector-specific or focused on particular waste streams.25 TCEQ does translate
some of its outreach material into Spanish but does not have the resources to translate all its outreach
documents into Spanish or other languages. TCEQ also offers a Compliance Commitment (C2) program,
which involves a multi-media audit (including HW management requirements) conducted by a third-party
contractor using industry-specific checklists. At the conclusion of
the audit, the contractor provides the regulated entity with a copy of
the completed checklist indicating where they are in compliance,
where they are deficient, and actions necessary to correct any
deficiencies and achieve compliance. Approximately 300 site visit
audits are completed each year. In addition, through the
EnvirMentor Program (EM), regulated entities who demonstrate a
financial need may be matched with a HW service provider willing
to provide services for free.
SBEA offers a toll-free confidential hotline through which regulated
entities can speak directly with a compliance assistance specialist
without fear of enforcement. SBEA receives questions ranging from
schools dealing with lab chemicals to complex questions regarding
waste management. SBEA receives about 7,000 calls a year on their
hotline (though this figure covers all topics relevant to TCEQ, not
just HW).
"Most of the time it's
industrial facilities that
don't have the staff person
to deal with hazardous
waste that are in violation;
it's small businesses more
than anything else, schools
universities and hospitals,
[who have problems with
HW determination.] They
are not as aware that
they're subject to
regulations [as large
businesses]."
-- State regulator
24 Texas Commission on Environmental Quality, Small Business and Environmental Assistance Division, Industrial and Hazardous Waste: Rules and
Regulations for Small-Quantity Generators. July 2009.
25 Texas Commission on Environmental Quality, Waste Permits Division, Guidelines for the Classification and Coding of Industrial and Hazardous
Wastes, February 2005. http://www.tceq.texas.gov/publications/rg/rg-022.html/at_download/file
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TCEQ also hosts an annual trade fair each year to which generators and enforcement agencies are invited.
The two-day conference offers an opportunity for education and information sharing. The HW program
provides information on waste classification at the conference and offers an opportunity for generators to
get to know state contacts with whom they can follow up if they need help.
Every three to four years SBEA conducts RCRA Recordkeeping and Reporting workshops across the
state. Small businesses are the workshops' primary intended audience. TCEQ also offers abbreviated
training on demand. For example, TCEQ provided such training to metal finishers. The state reports that
while there is always high demand for training, it is sometimes hard for generators to get to the training.
SBEA coordinates with field inspectors to provide offers of assistance following inspections. SBAC staff
tries to build relationships with investigators, so that when they are aware that an issue came up during an
inspection, they can proactively follow-up with the generator to offer help. SBAC generally provides
multi-media assistance that gives small businesses an overall picture of their environmental compliance
requirements. SBEA also provides templates to assist generators in compiling needed
information.26SBEA has, on occasion, offered inspector checklists to generators, but will always provide
them upon request to help generators understand what inspectors are looking for.
SBEA has tried in the past to do mailings to all facilities in particular industry sectors, using lists of
businesses from the state Comptroller's office. However, SBEA got a very low response rate. SBEA
does believe that training needs to be sector specific, and presented in plain language.
EPA Region 6 reports that Texas has a more active assistance program than any of the other states in the
Region.
Information on Compliance
TCEQ reports that violations regarding HW determinations are fairly common, as are problems with lack
of documentation (e.g., missing laboratory reports). In TCEQ's experience, smaller, less sophisticated
facilities are more likely to have violations. Small facilities generally do not have a good understanding
of terms like "hazardous" or "toxic." These generators commonly use hazardous products and do not
perceive them to be dangerous; they also expect someone to tell them if they are not allowed to throw
something away. However, sometimes even larger facilities will miss an aspect of the analysis or their
process knowledge will be incomplete, leading to inaccurate determinations. Overall, TCEQ finds that the
most competent firms are those that have been investigated and are (therefore) educated about the rules.
Texas currently has 5,237 active generators. During fiscal years 2007
through 2011, TCEQ conducted 1,170 generator inspections, resulting in
125 enforcement actions. (In other words, approximately 11 percent of ^ Influence
inspections resulted in enforcement actions.) The most common programs?
violations during this period pertain to accumulation time, notification
requirements, record keeping and annual reporting, and HW
determination.
26 These forms include a blank waste stream profile, HW generation chart, HW management unit form, HW management unit inspection log, daily
drum inspection log, emergency plan, emergency responder notification form, emergency site plan, facility site plan, transporter profile, and
disposal facility profile.
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Colorado
Colorado has developed a self-certification approach to addressing HW compliance, integrating
assistance, compliance monitoring, and enforcement. Therefore, this section begins by discussing the
relationship between Colorado and the EPA Region, and then goes on to describe the self-certification
program. The section also describes additional compliance monitoring, enforcement, and assistance
activities aside from the self-certification program. The section concludes with a discussion of HW
determination compliance in the state.
Relationship between State and Co-Regulators
Colorado is located in EPA Region 8, and the Colorado
Department of Public Health and the Environment
(CDPHE) has a fully delegated RCRA HW program.
The state and Region have a good working relationship.
Colorado's HW regulations, implemented through the
state rulemaking commission, are consistent with but in
some cases more stringent than the federal regulations.
CDPHE has staff focused on corrective action,
inspections, enforcement, technical assistance, data
management, and permitting. CDPHE HW staff are all
located at its central office in Denver, which is in close
proximity to 80 percent of the state's population and its
HW generators. CDPHE staff travel to sites outside of
the Denver Region frequently. Enforcement and
compliance assistance staff from two media programs
(Hazardous Material and Waste Management Division
and the Air Pollution Control Division) partner to
improve environmental compliance throughout the
state. This integrated enforcement/assistance and multi-
media approach allows the staff to be more efficient and effective.
CDPHE's HW program is funded primarily by state HW fees, though EPA
provides a quarter of the program's budget through the Performance
Partnership Grant. Even though the state legislature authorizes CDPHE to
spend its funding, the Department does not depend on the legislature for
funding from the state's general fund.
The Environmental Results Program (ERP) is an
integrated system of (1) Plain-language compliance
assistance that promotes pollution prevention, (2)
Facility self-assessment and self-certification, (3)
Agency inspections to verify certifications and assess
performance, and (4) Statistically-based
performance measurement.
ERP combines these tools in a repeating process to
improve or sustain overall sector performance.
Compliance assistance materials explain what
facilities need to do, facility certifications state that
they are doing it, and agency inspections of a
representative sample of facilities document and
verify overall sector performance. Performance
data, in turn, inform and help states improve the
next round of compliance assistance and better
target enforcement actions.
Source: States ERP Consortium (www.erpstates.org)
Influence
of state
programs?
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Self-Certification Approach
Colorado uses a self-certification approach, modeled after the Environmental Results Program developed
in Massachusetts, to address environmental compliance among HW generators.27 CDPHE sees self-
certification as an important tool to leverage limited resources and maintain contact with facilities that
notify the state they are generating HW. CDPHE requires certain sectors (e.g., dry cleaners and SQGS,
including surface coaters and healthcare facilities) to participate in a self-certification initiative each year.
For each target sector, the state mails all known generators a brief questionnaire listing the requirements
the generators must follow. The SQG questionnaire is broadly applicable and includes questions such as
"Have you determined what HW you generate at your facility?" and "Do you label your HW drums?"
Sector-specific questionnaires address issues unique to generators in the target sector. For example, the
drycleaner questionnaire alerts generators of issues such as, "Typical HWs at dry cleaners include: muck,
separator water, vacuum water, used filters and lint from the perc [perchloroethylene] machines."28 The
questionnaires are included in sector-specific booklets, calendars and other compliance assistance and
guidance materials. Some of the questionnaires are translated into languages other than English to assist
businesses in understanding their requirements. For example, the dry cleaner questionnaire is translated
into Korean to assist the many Korean dry cleaners in Colorado. Generators are supposed to be able to
complete the questionnaires in approximately 30 minutes. Generators are then required to send the
questionnaire back to the state. Colorado encourages generators to submit the questionnaire
electronically, though it can also be submitted in hard copy.29
CDPHE does not view the questionnaires as an accurate measure of compliance (nearly all generators
report they are in compliance). Rather, the questionnaires are designed as a way to raise awareness of the
requirements and encourage facilities with questions to seek assistance. CDPHE follows up with
statistically-based inspections to project actual compliance rates for the overall sector. Compliance rates
are compared over time.
Generators that do not return the self-certification form in a timely manner are issued an informal
enforcement action known as a compliance advisory to prompt participation. If there is still no response,
CDPHE proceeds with a formal enforcement action with a penalty.
CDPHE believes the self-certification approach has many benefits. The most important of these is the
partnership the program has created between the businesses and the state. In the wake of the self-
certification program, generators are more likely to call the state with questions. CDPHE views the self-
certification form as an avenue to build trust with generators, while achieving better coverage of the target
sectors.
In addition, the program has allowed the state to better characterize its ^^^^ influence
universe of generators. Before undertaking self-certification, the state of state
thought it had more than 1,000 SGQs, along with 115 LQGs and 8 TSDs. ^0^ programs?
After reaching out to these entities through the self-certification program,
the state found it only had 650 SQGs. The state also tracks the most
27 For more information on ERP, see http://erpstates.org/
28 Source: CDPHE 2012 Dry Cleaners Regulations 6t Best Management Practices Self Certification Checklist, available online at
https://www.formrouter.net/forms01@CODPH/dccert.pdf
29 For more information see the CDPHE Hazardous Materials and Waste Management Division Self-Certification Checklists webpage at
http://www.cdphe.state.co.us/hm/certify/index.htm
3-28
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common violations based on statistically representative inspections. For example, for SQGs, the four top
types of HW violations were related to requirements for training, labeling, open containers, and
emergency response. CDPHE and then uses this information to focus the content of its workshops and
other outreach initiatives.
CDPHE staff in the Hazardous Material and Waste Management Division and the Small Business
Assistance Program in the Air Pollution Control Division work together to provide outreach not only to
businesses but also to trade associations and suppliers. For example, in the surface coating sector, the
compliance assistance programs conducted train-the-trainer workshops and created a multi-media
questionnaire that suppliers distribute to their clients. CDPHE found this approach to be very successful
because it generated many calls to the state from businesses that had been contacted by their suppliers.
CDPHE found it was resource intensive to initiate the self-certification program, but once the program
was established it has been easier to maintain. EPA Region 8 supported the launch of Colorado's self-
certification programs. EPA Headquarters has supported similar programs in other states in the past.30
Additional Compliance Monitoring and Enforcement
In addition to conducting statistically-based inspections as part of its self-certification program, Colorado
conducts regular, targeted inspections in accordance with EPA's requirements. One of the greatest
compliance monitoring challenges CDPHE reports is identifying new businesses. As with other states,
Colorado has found it is difficult and time intensive to locate all generators in the state. CDPHE uses a
database of all businesses that have applied for a business license in the state in order to develop the
mailing lists for its self-certification program. CDPHE is developing a checklist for new businesses that it
is distributing to planning departments, chambers of commerce, fire departments, the Small Business
Administration, and the Secretary of State and other outreach partners. The checklist outlines general
environmental requirements new businesses should be aware of, and provides agency contacts.
CDPHE reports that some of the state's enforcement actions with regard to HW determination come from
non-notifiers. These businesses are typically SQGs who fail to notify the state they are generating HW.
CDPHE may identify these non-notifiers through complaints, but it is difficult to systematically identify
them. CDPHE does review HW manifests to look for generators who have not notified the state;
however, CDPHE does not view this method as optimal because it takes considerable resources, and it
does not address all non-notifiers.
Additional Assistance
Colorado offers training, direct assistance, and guidance materials to educate generators about their
requirements.
CDPHE offers multi-media training. For example, CDPHE has offered training with health care workers
to increase awareness of HW issues regarding proper disposal of
medications. The state has also worked with suppliers in the health care
industry, such as pharmaceutical companies, on improving environmental ^ Influence
compliance. In addition to sector-specific training, CDPHE offers an all- ^^1 programs?
day training session once per quarter focused on HW. The state provides
training in all regions of the state. CDPHE reports the training is
For more information on EPA's past support of ERP, see http://www.epa.gov/erp/
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extremely popular and receives excellent reviews from participants. The training is relatively inexpensive
and represents a cost-effective approach to generator outreach.
CDPHE has developed general guidance documents addressing HW identifications31 and exclusions.32 In
addition, the state has developed fact sheets for HW in specific sectors, such as surface coating, auto
body, printing, plating, and healthcare.
CDPHE supports a Generator Assistance Program (GAP) that provides businesses with free on-site
technical assistance and information on the state's HW regulations. GAP partners with the Small
Business Assistance Program to provide multi-media outreach and assistance. Any compliance
deficiencies noted during the GAP site visit will not result in any enforcement action (unless they are
deemed as imminent and a substantial endangerment to public health or the environment).
CDPHE also runs a hazardous and solid waste technical assistance hotline. One staff person answers the
hotline six hours a day, receiving about 10 to 15 calls a day from facilities, HW service provider and
members of the public. Callers can remain anonymous.
Information on Compliance
CDPHE reports that for the decade from 2000 - 2009, HW determination violations were the fifth most
common type of violations for both LQGs and SQGs, and both groups had an average 87 percent
compliance rate with HW determination violations over the ten year period (this is equivalent to a 13
percent non-compliance rate). In any given year, the compliance rate might be higher or lower (for
example in 2009, CDPHE reports that SQGs had 75 percent compliance rate with waste determination
requirements, and LQGs had a 95 percent compliance rate). As noted earlier, for SQGs, the four top
types of HW violations were related to requirements for training, labeling, open containers, and
emergency response. (CDPHE did not report the top four types of violations for LQGs.)
CDPHE has found compliance rates vary by sector. For example, drycleaners tend to have lower
compliance rates with HW determination violations than the cross-sector average. While the compliance
rate has improved considerably over the years, drycleaners continue to have problems.
QUESTION 5: HOW DO ASSISTANCE PROVIDERS/HW SERVICE PROVIDERS/TRADE
ASSOCIATIONS' ACTIVITIES INFLUENCE HW GENERATORS' COMPLIANCE WITH
THE HW DETERMINATION REGULATIONS?
To determine how assistance providers, HW service providers, and trade
, . .. . , vutnir "Generators will say, 'I had no
associations activities influence HW generators compliance with HW . , ,
TTn . . , . ,. . . ., idea where to get any
determination regulations, ILc participated in discussion sessions with . , . , , .
information. I got my business
16 assistance providers (most of whom participated in a single workshop ,. .,.,., .. , ^ ^ ,
F v F F & F license and that's all I thought I
discussion with Small Business Environmental Assistance Providers and , , .... . ,
to find out I needed to do
something else?'"
-SBEAP Representative
Small Business Ombudsman), interviewed three HW service providers,
and interviewed eight trade association representatives. The following
31 See the CDPHE Hazardous Waste Identification Guidance Document, October 2008 available online at
http://www.cdphe.state.co.us/hm/hwid.pdf
32 See the CDPHE Hazardous Waste Exclusions Guidance Document, April 2009, available online at http://www.cdphe.state.co.us/hm/hwexcl.pdf
3-30
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section describes our findings from these interviews and discussion sessions.
Small Business Assistance Providers
lEc spoke with assistance providers who are beneficiaries of state funded programs mandated by the 1990
Clean Air Act. These state funded programs comprise Small Business Ombudsmen (SBO), Small
Business Environmental Assistance Providers (SBEAP), and a Compliance Advisory Panel (CAP). All of
the state funded providers work exclusively with small businesses.33 lEc also spoke with the EPA
Asbestos and Small Business Ombudsmen, a representative from the EPA Office of Enforcement and
Compliance Assurance (OECA), two EPA Regional assistance providers (Regions 4 and 10), and a
representative from an environmental and energy services firm that works with EPA to audit federal
facilities, small businesses, and hospitals. lEc also reviewed the results of a 2007 survey conducted by the
Small Business Environmental Homepage.34 These discussions and survey results suggest that small
business assistance providers influence generators' HW determination compliance in several ways:
• Assistance providers are often the first line of information about HW management for
generators: Assistance providers reported many small businesses are not aware they produce HW
subject to regulation. Many of them first learn of their responsibilities when they meet with an
assistance provider. Understanding this, assistance providers actively seek out small businesses
that are likely violating HW management regulations. Some assistance providers work with state
and municipal officials to identify new businesses and inform them of their HW management
obligations.
• Assistance providers operate at the sector level: Several assistance providers mentioned they
develop guidance materials specific to situations that arise in a particular industry. They create fact
sheets that translate regulatory language into laymen terms and assist generators with HW
determination issues common to specific industries and materials. For example, the SBEAP for the
Minnesota Pollution Control Agency devotes a section of their website to "Industry Specific
Waste Management Information." The site provides links to guidance documents and fact sheets
for different industries, including the transportation services industry, where one can find
information on how to properly manage oil and filters, aerosols, batteries, solvents, and other
hazardous materials frequently used in the industry.
• Assistance providers find resources for generators to get further HW management
assistance: The Small Business Environmental Homepage survey
showed that 92.5 percent of the surveyed assistance providers who
offer HW assistance provide referrals to generators, where referrals ^^^ influence
is defined as: providing your client with contact names and phone fitM °f •
numbers outside your SBAP/SBO (Small Business Assistance j^r providers?
Provider/Small Business Ombudsman) program.
The definition of a small business varies depending on industry, number of employees, and annual revenue.
34 http://www.smallbiz-enviroweb.ors/Sharinslnformation/surveys/multimedia07.aspx- The Small Business Environmental Homepage - responses
from an online survey conducted in January-February 2007
3-31
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Assistance providers will seek information from outside
sources to assist generators: The Small Business
Environmental Homepage survey showed 82.5 percent of the
surveyed assistance providers who offer HW assistance
provide personal contact to generators, where personal contact
is defined as: making contact with resources outside your
"A small number of companies
can monopolize small business
assistance providers' time.
Getting to them early on
means they can monopolize
SBAP/SBO program and getting back to your client for further my time" We need a lot more
,. . _ , ,, , help if we're going to provide
discussion or arrangements, for example, some or the
., .,., 11-4. * -j T-T.A j assistance to everyone."
assistance providers said they regularly interact with EPA and
state offices, facilitating communication between small -SBEAP Representative
businesses and the regulators. Generators often avoid asking
regulators compliance questions due to a fear of enforcement,
so the assistance providers, whom generators are more comfortable speaking with, help bridge the
communication gap by reaching out to regulators on the generators' behalf.
• Assistance providers offer expertise on HW management: The Small Business Environmental
Homepage survey showed 70 percent of the surveyed assistance providers who offer HW
assistance provide expertise to generators, where expertise is defined as: providing your client
with expertise (answers to questions, fact sheets, site visits, hands-on technical assistance, etc.)
from within your SBAP/SBO program. For example, through the Small Business Technical
Assistance Program, the New Hampshire Small Business Ombudsman conducts site visits for
small businesses, helping them to come into compliance with various environmental regulations,
including HW determination.
• Assistance providers' influence on HW determination compliance is limited by their ability
to reach generators: Many of the assistance providers who provided input for this evaluation said
their efforts are limited by the ability to reach small businesses. Despite working with state and
municipal organizations to identify HW generators, many small businesses remain "off the radar"
to assistance providers as well as state and federal inspectors. The sheer volume of small
businesses prevents assistance providers from identifying all those who need help. Furthermore,
they do not have the personnel or budgetary capacity to assist everyone.
HW Service Providers
For this evaluation, lEc interviewed three HW services firms of varying sizes. All of the firms service
generators of all classes, with one serving primarily SQGs and LQGs and one serving primarily CESQGs.
Two of the firms make HW determinations on behalf of their clients. The other focuses on hauling and
disposing their clients' waste, rarely making determinations; however, this firm is utilized by many small
businesses and as such, is uniquely attuned to HW service providers' influence on small generators' HW
determinations. HW service providers influence HW determination compliance in the following roles:
• HW service providers are integral to the HW determination
process for many generators: A large number of generators
• i- TTTTT • -i 11- ^^ Influence
indicated they rely upon HW service providers to make their A of
determinations because they do not have the time or expertise to ^ assistance
comply with the HW determination regulations. In addition, seven
of the eight trade association representatives said their members
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utilize HW services companies. Many businesses do not have dedicated environmental
management staff, leaving the HW determination process to employees with many other
responsibilities. Rather than risk improper HW management and the associated penalties, many
businesses subcontract with HW service providers to handle their HW management, including
making HW determinations, transportation, and disposal.
• HW service providers are better positioned to make accurate HW determinations than many
generators: All three of the HW services representatives mentioned various technical resources
they can access to make HW determinations for their clients. For example, one company maintains
its own chemical database, housing approximately 50,000 records of appropriate HW
characterizations for various chemicals and chemical mixtures. All three of the firms interviewed
noted they train their employees in making HW determinations. In addition, employees of these
firms have access to colleagues with technical expertise and years of experience managing HW.
Generators that choose to make their own HW determinations generally do not have access to such
resources.
HW service providers over-characterize waste streams
as hazardous: Two of the three HW service providers "Analytical [testing] is very
indicated that in some cases they will err on the side of expensive. Often times,
i i- rmr j * • *• »* * customers don't want to pay
caution when making a HW determination. Many generators
j . .. ,, . , .. ,. .. ... for that, so we have to rely
do not want to pay tor expensive analytical testing on their
. , , . •, , , on customer knowledge. I'm
waste streams. As a result, the service providers have to rely . ... .
, . . „, sure we over-classify in
on generator knowledge to make the determination. If they . . . •,., u •
order to be sure it s being
cannot confidently make an accurate determination based , „
upon this knowledge, they will characterize the waste as
hazardous to ensure that it is managed safely.
-Hazardous Waste Services
Representative
There is a perception that financial incentives lead HW
service providers to mischaracterize waste streams:
Some of the stakeholders suggest HW service providers over-characterize waste as hazardous so
they can collect higher fees for managing a larger volume of HW. Stakeholders also report that
HW service providers have an incentive to under-characterize HW. They suggest service
providers will not classify waste as hazardous so they can offer clients a lower price to manage
their waste, leaving the unsuspecting generator vulnerable to fines due to incorrect determinations.
Trade Associations
lEc interviewed eight trade association representatives for this evaluation. The selection of trade
associations was based on information from the RCRAInfo queries about which sectors appear to have
particular compliance issues, as well as trade associations specifically requested by EPA ORCR and
OECA. Trade associations influence generator compliance with HW determination regulations through
several pathways:
• Trade associations serve the role of assistance provider to their ^^^ influence
members: All of the trade association representatives stated their fitM °f •
members seek HW determination guidance from their organization. ^|Sr providers?
Many of them provide guidance documents, training materials, and
personal expertise with regard to making HW determinations. In
3-33
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addition, trade associations will set up educational conferences for their members that often have a
HW management component. For example, the Printing Industries of America maintains an
Environment, Health, and Safety division, which offers members access to industry-specific
environmental compliance fact sheets, training programs, staff trained in EHS, and a consulting
service that audits facilities to ensure regulatory compliance.
• Trade associations work with regulators to assist their members with HW determination
compliance: A number of the trade associations stated they previously collaborated with EPA to
develop guidance documents and training materials geared towards their industry. This includes
working together to develop regulatory interpretations and translating the regulations into layman
terms. In some cases, trade associations invite EPA representatives to speak at industry
conferences about specific HW issues. A few of the trade associations employ consultants or other
HW experts to offer direct guidance about HW issues to their members.
• Trade associations lobby for HW regulations favorable to their industry: Some of the trade
association representatives mentioned they work to protect their industry's interests in Washington,
suggesting lobbying for favorable environmental regulations is part of their service to members.
For example, the American Coatings Association has a Government Affairs Committee which
oversees the Paint Council Network, described as "a network of grassroots organizations
representing the association in its efforts to promote the interests of the paint and coatings industry
at the state level. ACA's Paint Councils provide a forum for companies doing business in those
states to interact with each other and their elected officials."35 In addition, the association also runs
its own Political Action Committee called PaintPAC. PaintPAC makes monetary contributions to
political candidates and advises elected officials on issues of interest to the industry.
• Trade associations seek more cooperation with EPA: Several trade association representatives
stated they would like more interaction with EPA when it comes to developing and interpreting
HW regulations. A few individuals noted the relationship between industry and EPA has faded in
recent years as some industry outreach programs have been cut. For example, one industry
representative noted EPA no longer employs a sector outreach specialist to work directly with
specific industries in order to help businesses come into compliance.
• Trade associations' influence on generators is generally limited to their members: A number
of stakeholders indicated that while the trade associations are an excellent resource for generators,
only a small portion of businesses belong to one. Due to membership fees, many small businesses
forego joining trade associations and do not have access to the HW determination assistance they
provide.
QUESTION 6: WHAT CHANGES DO STAKEHOLDERS RECOMMEND TO MAKE THE
NATIONAL HW DETERMINATION PROCESS MORE SUCCESSFUL?
Drawing on the comments provided by stakeholders during the interviews, discussions, and survey of
federal partners, lEc identified 180 stakeholder recommendations to improve the national HW
determination process. lEc organized these recommendations into 13 categories, as shown in Exhibit 15.
The most common types of recommendation, by far, related to enhancing or expanding guidance
available for making HW determinations. The following section describes each category of
' http://www.paint.org/programs/paint-council-network.html
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recommendation in more detail. In addition, Appendix E lists all of the recommendations identified
during this evaluation organized by recommendation category.
EXHIBIT 15: Recommendations to Improve the National HW Determination Process
RANK
1
2
3
4
5
6
7
8
9
10
11
12
13
RECOMMENDATION CATEGORY
Provide, improve, and/or increase the guidance available for making
HW determinations
Other (see Appendix E for more detail)
Simplify the regulations in general
Define and clearly interpret specific sections of the regulations
Address situations where applying the regulations is not practical
Increase collaboration with the regulated industries
Specific waste stream issues
Revisit listed wastes
Improve consistency between regulating agencies as well as the
regulations themselves
Address unregulated waste streams known to be harmful to the
environment
Increase enforcement
Require manufacturers to provide more product information to
generators via the MSDS or other means
Require more documentation of the waste determination procedures
TOTAL RECOMMENDATIONS
COUNT OF
RECOMMENDATIONS IN
THE CATEGORY
52
29
17
15
14
10
9
8
8
5
5
4
4
180
Recom-
mended
Changes?
3-35
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Provide, improve and/or increase the guidance available for
making HW determinations: Many of the requests for
guidance focused on providing industry-specific
information. For example, multiple people requested
EPA develop a document that calls out the most
common waste streams generated by specific industries
and provides their associated waste codes. They also
recommended definitive guidance on specific products
"When a business is registered,
provide a fact sheet that says
'these are what your typical waste
streams will be.'"
-State Agency Representative
that are notoriously difficult for generators to characterize, such
as aerosols and solvents, improving the accessibility of
existing assistance resources, and reinstating the RCRA
Hotline.
Other: Stakeholders provided many recommendations
that stand on their own and do not fit well into the other
categories. These recommendations cover a wide range
of topics including: creating alternative methods for
calculating generator status; providing generators with a
list of labs certified to sample waste streams; increasing
the budget of state agencies; switching the determination
responsibility from generators to the EPA; and creating
economic incentives for correct determinations.
Appendix E provides a full listing of these
recommendations.
Simplify the regulations in general: Many
recommendations suggested that EPA simplify the
language and writing style of the HW determination
regulations. For example, stakeholders frequently
remarked that EPA should make the regulations linear to
eliminate the constant referencing of previous sections
and write them in "plain English," to enable generators
to understand them. Some stakeholders requested more
fundamental changes such as eliminating listed wastes
and making the HW determination irrespective of how
the waste is used (e.g., recycled or reused).
Define and clearly interpret specific sections of the
regulations: A number of respondents recommended
EPA make clear and definitive interpretations for
sections of the regulations they consider vague. For
example several people suggested EPA better define the
terms "generator knowledge" and "point of generation."
They also recommend EPA disseminate these definitions
to the regulated parties and be more accessible to
"Back when EPA ran the 1-800
hotline to answer questions, I used
it pretty often. That was a good
thing. Those old answers are posted
on an EPA web site but it is almost
impossible to find the site."
-Federal Facility Representative
"Simplify regulatory determination
requirements. There are far too
many intricacies in determining
whether a solid waste is a
hazardous waste, many of which
have no bearing on whether they
are potentially harmful to the
environment if improperly
disposed."
-Federal Facility Representative
"Provide consumer product relief
under the Universal Waste rules
allowing consumer product waste
determinations to be made at a
consolidation or returns processing
facility or provide a specific ruling
on when waste determination must
be made in the retail returns
process."
-Industry Representative
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provide interpretations for generators that have questions about
the regulations.
Address situations where applying the regulations is not
practical: Generators and other stakeholders regularly discussed
the need for EPA to address the impracticality of the regulations
when applied to certain situations and industries. Specifically,
they recommend EPA take action to ease the regulatory
burden of the HW determination regulations as they
pertain to pharmaceuticals and consumer products. We
heard on multiple occasions that the classification of these
waste streams as universal waste would be an effective
measure in this regard. Respondents also noted that due to
the outstanding concerns of this regulatory burden, there is
a need for EPA to provide prompt responses to questions
from people making HW determinations for these
products.
Recom-
mended
Changes?
"Eliminate outdated and
unnecessary hazardous waste
listings. If hazardous wastes
were determined solely on
objective analytical criteria,
most problems could be
avoided."
-Industry Representative
Increase collaboration with the regulated industries:
Generators, regulators, and assistance providers said EPA should work more closely with industry
when developing regulations, issuing interpretations, and providing guidance. They expressed
concern that EPA sometimes fails to adequately engage the industries they regulate, thus missing
out on opportunities to coordinate efforts to increase
generator compliance.
"The fire department says one
thing and allows material to be
thrown away but RCRA says
differently, such as the
evaporation of solvents used on
rag, which could be an F-listed
waste. I recommend outreach on
every level, [including] talking
with the fire department.
- State Regulator
• Specific waste stream issues: A number of individuals
recommended improving the regulations for specific
waste streams. Those waste streams mentioned on more
than one occasion include acetone, aerosol cans, and
pharmaceuticals.
• Revisit listed wastes: Several stakeholders recommended
EPA make changes to the listed waste regulations. In
particular, they suggest that EPA remove outdated
listings, base the listings on the presence of toxic
constituents as opposed to a narrative description of the waste generation process used for the F-
listed wastes, and clean up and streamline the regulatory language in general.
• Improve consistency between regulating agencies as well as the regulations themselves: A
number of stakeholders recommend that all states develop consistent HW determination
regulations to eliminate the difficulties generators experience trying to comply with different
regulations for each state. (Given the delegated nature of the program, implementing this
recommendation would be outside of EPA's control.) Stakeholders also recommend EPA and the
states develop consistent guidance on specific issues such as satellite accumulation. Furthermore,
they recommend coordination with other agencies that regulate the same materials, so they do not
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give generators conflicting guidance. For example, EPA and the local fire department regulate
some of the same materials for different purposes. However, the compliance requirements differ
between agencies.
Address unregulated waste streams known to be harmful to the environment: Stakeholders
recommend EPA take the lead on regulating wastes known or suspected to be environmentally
damaging but not currently regulated, such as nanoparticles and certain pharmaceuticals. In
addition, they recommend adding new chemicals to the listed wastes.
Increase enforcement: A few stakeholders recommend „»..*. ,- ., •i. ,- ,-
Audit our facilities & enforce
that EPA increase its enforcement efforts to help ,. ,,
^ non-compliance occasionally.
encourage greater compliance with the HW
Management doesn't recognize
increasing the number of inspections and having them
determination regulations. They also recommend non-compliance as a problem!"
conducted on a routine basis, so generators are less -Federal Facility Representative
willing to risk non-compliance because they are unlikely
to be inspected. One person said that EPA should create a penalty for "over coding," where
generators classify non-HW as hazardous when they are uncertain of the correct determination.
Require manufacturers to provide more product information to generators via the MSDS
or other means: Stakeholders recommend EPA encourage manufacturers to provide more
product disposal information to generators. Specifically, they ask that RCRA waste codes and end
of life disposal information be included on the MSDS. In addition, one person requested that the
information on the MSDS be tailored for the specific industry using the product.36
Require more documentation of the waste determination procedures: Stakeholders
recommend EPA require generators to document their HW determination process, including the
names of individuals who make the determination.
In addition to suggestions raised through the interviews and open discussions, EPA gathered
recommendations through the federal facilities survey. Exhibit 16 shows responses to the federal
facilities survey question: If you had an opportunity, what would you want EPA or your state to do to
help facilities like yours make HW determinations more effectively?
The recommendations are in accord with those provided during the interviews and discussion sessions. In
both cases, improving guidance and assistance for generators is the most
frequent recommendation and clarifying the content and language of the
regulations is highly recommended. However, the responses are not directly ^^P^ Recom-
comparable because respondents to the federal facilities survey ranked a list
of pre-established answers as opposed to offering independent
recommendations, as respondents in interviews and discussion sessions did.
36 EPA points out that it does not have authority over MSDSs, and that the specifications for MSDSs are set by OSHA. EPA could, however, advocate
for such changes with OSHA.
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EXHIBIT 16: Recommendations for EPA or States to Help Facilities Make HW
Determinations More Effectively
RECOMMENDATION CATEGORY
Provide user-friendly guidance
Improve the clarity of the regulations and guidance
Improve the readability of the regulations and
guidance
Provide a hotline dedicated to helping generators
make more accurate determinations
Other
Provide on-site technical assistance upon request
Offer periodic webinar training
PERCENT RANKING
RECOMMENDATION AS
MOST IMPORTANT
34%
23%
16%
12%
11%
8%
8%
Recom-
mended
Changes?
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CHAPTER 4 | OVERARCHING THEMES AND RECOMMENDATIONS
This evaluation compiled information from a wide range of stakeholders along with analysis of available
data in order to assess the effectiveness of EPA's HW determination program. The evaluation suggests
that there are many inter-related factors influencing compliance with HW determination regulations, and
that aside from the regulations themselves, many of the greatest influences on generator compliance are
beyond EPA's direct control. Nevertheless, EPA has the opportunity to make some direct changes to
improve its program. In addition, EPA can use its influence with states, assistance providers, trade
associations, and other stakeholders to increase communication, resources, and attention to the issue in
order to maximize compliance.
OVERARCHING THEMES
Several overarching themes emerge from this evaluation:
• Many stakeholders would like EPA to simplify and improve the HW determination
regulations. Stakeholders indicated that the regulatory language sacrifices clarity in an attempt to
cover all possible scenarios where the regulations apply. This degree of detail complicates the
regulations, making them difficult for generators to interpret and apply. In addition, stakeholders
express concern that listed wastes may not cover important types of waste that may be hazardous
(e.g., chemotherapy drugs). Stakeholders also suggested that EPA reclassify some HW as
universal waste.
• Certain stakeholders expressed frustration with the non-intuitive, complex process of
making HW determinations. Stakeholders suggested that if people without experience or
training in making HW determinations perceive the regulations to be overly complicated, not
logical, or overly time consuming they may become discouraged and give up on their efforts to
ensure proper waste determination. Stakeholders who are well trained and have years of
experience with waste determinations are not as likely to raise this concern, though they also seek
improvements to the regulations.
• Generators seek greater clarity about how to apply the existing regulations to their
operations. Stakeholders said that it would be very helpful to have sector-specific guidance for
typical waste streams, paired with an opportunity to ask detailed questions and get prompt
feedback from EPA for non-typical waste streams. While EPA cannot make HW determinations
for generators and requirements vary depending on state regulations, there appears to be an
opportunity for EPA to share assistance materials and tools to supplement state resources.
• In practice many generators have essentially "outsourced" the HW determination process
(even though by law generators themselves must make HW determinations). For a number of
reasons, including financial constraints, time constraints, and the complexity of the regulations,
many generators hire HW service providers to manage their HW or rely on information from other
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third parties (e.g., suppliers) to make their determinations. Some HW service providers make HW
determinations on behalf of their clients, while others simply offer information as to whether a
waste stream is hazardous or not. HW service providers often have particular expertise and
resources that enable them to make accurate HW determinations. However, if they are relying on
incomplete or incorrect information from generators, or if they are motivated by financial
incentives to under-or over- classify waste as hazardous, HW service providers may contribute to
inaccurate HW determinations.
• Stakeholders report that a combination of compliance monitoring and enforcement and
compliance assistance is an effective approach to improving compliance with HW
determination regulations. This evaluation finds that many HW generators do not recognize
their HW determination regulatory obligations until they have been contacted by EPA, the state, or
an assistance provider. However, reduced funding at the state and federal level has prevented
regulating agencies from expanding their compliance monitoring efforts and assistance providers
from expanding their outreach and guidance efforts.
• Current compliance data do not facilitate calculation of non-compliance rates pertaining to
HW determination regulations. Inspections tracked in RCRAInfo do not reflect representative
samples of facilities and may therefore provide inaccurate indications of compliance rates.
Moreover, inspectors apparently may use 262.11 as a default violation during an inspection of a
facility with numerous violations. Use of this code does not reflect the severity of the violation.
lEC'S RECOMMENDATIONS TO EPA
Based on the lessons gathered during this evaluation, lEc has developed nine recommendations for EPA,
which we group into two categories: (1) improvements EPA can make directly to its own program; and 2)
opportunities to work with other stakeholders to influence generators. We summarize each of these
recommendations below.
Overall, lEc suggests changes to the HW determination process to address the interrelated challenges that
lead to non-compliance with the HW determination regulations. For example, in addition to providing
regulatory interpretations that clarify sections of the regulations, EPA should also disseminate the new
information to the generators, ideally through assistance providers, HW service providers, and/or trade
associations who already have relationships with generators.
1. To the Extent Possible, Simplify and Improve the Regulations, and Provide Sector-
Specific Guidance
The evaluators suggest EPA look for opportunities to simplify the regulatory language and revise it to
include fewer references to previous sections and more focus on addressing the majority of applicable
situations. Where it is not possible to simplify the regulations, lEc suggests that EPA provide more
sector-specific plain language guidance, to help generators and stakeholders interpret the regulatory
language.
The evaluators suggest that EPA also consider whether the listed wastes capture the appropriate wastes.
We recommend that EPA consider incorporating newer chemicals on to the P- and U-lists, e.g.,
chemotherapy drugs. We suggest EPA consider making some wastes universal wastes (e.g., aerosol cans,
Pharmaceuticals, and expired or returned retail products). Further, EPA should consider clarifying the F-
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and P/U-listed wastes. In addition to clarifying the narrative process descriptions that result in an F-listed
waste, lEc suggests EPA consider explicitly stating the common constituents regulated under each F-
listing. We recommend that EPA consider addressing the confusion around the applicability of the P- and
U-listings only to products in which the listed chemical is the sole active ingredient. (In other words, we
suggest EPA consider clarifying why a commercial chemical product is not a U- or P-listed HW if it has
two or more active ingredients, even if all the ingredients are listed on the U- or P- list.).
2. Establish a Direct Line of Communication between EPA and HW Stakeholders
Stakeholders indicated that opportunities for communication with EPA have decreased in recent years,
contributing to the challenges generators face in complying with the HW determination regulations. They
noted difficulty getting responses to HW determination questions from EPA and said that written
inquiries often go unanswered. This perceived lack of communication seems to contribute to the distrust
of the Agency some stakeholders harbor. We recommend the Agency consider creating avenues to
facilitate better communication between EPA and stakeholders. Reinstituting the RCRA Hotline in one
form or another is one potential mechanism.37 Throughout this evaluation, stakeholders referred to the
Hotline as an invaluable resource to the regulated community that enabled stakeholders to discuss
difficult questions that inevitably arise when generators apply the regulations. Stakeholders experienced
in making HW determinations lamented the loss of the RCRA Hotline, saying it was a vital resource,
even for people who have been making accurate HW determinations for years. The Hotline's ability to
connect stakeholders with another person to discuss questions about applying the RCRA regulations
facilitated an interpersonal connection between the Agency and the regulated community that cannot be
replicated by providing regulatory assistance documents and interpretations online.
3. Make Guidance Documents Easily Accessible via RCRA Online and Make the Generator
Website More User-Friendly
During the course of this evaluation, several stakeholders said that although RCRA Online contains some
useful information it is often difficult to locate and the system is generally confusing to navigate. We
recommend that EPA improve the visibility of guidance documents and interpretations on the site. For
example, a generator visiting the site would likely be interested in specific pieces of information that are
currently spread across four separate links on the front page:
• Sector specific guidance documents are available under the RCRA in Focus section, which is
reached by clicking the Laws & Regulations link.
• Fact sheets about specific hazardous materials are located under the Publications section within
the Information Resources link.
• The Educational Materials link provides access to the RCRA Orientation Manual and RCRA
Training Modules.
• The RCRA Frequent Questions Database is accessed by a separate link in the text of the front
page (see Exhibit 17).
The Agency should consider making resources for generators more accessible, including generator
guidance information and links to state and assistance provider websites.
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EXHIBIT 17: EPA's Current RCRA Online Website
ips On Using RCRA Online
ou can download the RCRA Online Brochure I'PDF) f;
I The RCRA Online database is designed to enable users to locate documents, including publications and other outreach materials, that cover a wide range of RCRA issues
I and topics,
| While EPA makes every effort to keep this information timely and accurate, EPA makes no expressed or implied guarantees as to the accuracy or timeliness of the
nformation contained in this database, the documents referenced in this database, or the choice of documents referenced in this database, EPA will, however, make an
I effort to correct errors brought to its attention.
In addition, since EPA cannot guarantee protection from potential alteration of or tampering with the materials on this server by outside parties, these materials do not
constitute 'official' versions, and they are not intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with the United States,
:f you have any questions or comments concerning the functionality or use of this database, please direct them to trtRCRA Frequent 'jjeE.':io is L atabase.J
I If you want more information on the RCRA program, please visit the Contact Us page. This page provides links to EPA's Reg^r^*ft*«e»*tai»^^^flrimenta offices and the
RCRA Frequent Questions Database.
4. Improve Tracking of Compliance Rates for HW Determination
We recommend that EPA revise RCRAInfo to facilitate tracking of violations specifically related to 40
CFR 262.11 and encourage EPA inspectors to consistently use this code to track HW determination
violations. EPA may also wish to consider tracking the severity of HW determination violations. In
addition, we recommend that EPA consider flagging targeted inspections vs. regularly scheduled
inspections, so as to enable improved data analysis. Ideally, if tracking compliance with HW
determination regulations is a high priority for the Agency, EPA would support representative sampling
of facilities to accurately measure compliance rates, either at the state or federal level. For example, EPA
Regions could work with states to gather representative data on compliance, and track this information
periodically to gauge progress. Overall, we recommend that EPA consider improving RCRAInfo and the
compliance monitoring data it stores to facilitate accurate, comparable, and consistent tracking of non-
compliance rates overtime.
Opportunities to Work with Other Stakeholders
5. Identify Opportunities to Improve Communications with State Agencies to Inform
Regulatory Interpretations
By communicating with the states, EPA's interpretations are more likely to reflect actual situations
generators face since communication is greater between generators and the state than between generators
and EPA. For example, Minnesota praised EPA ORCR for recently pre-emptively seeking comments to a
regulatory interpretation, noting that in its opinion EPA interpretations are usually issued without state
input.
6. Improve Coordination with Other Agencies whose Regulations Overlap with Those of
EPA
On more than one occasion, stakeholders discussed specific situations where another agency's regulatory
guidelines conflict with EPA's. For example, sometimes the local fire department will inform a generator
that they can dispose of an item as solid waste (likely based on regulations from OSHA or DOT).
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However, the HW determination regulations may require this item to be characterized and handled as
HW. To address these inconsistencies, we recommend that the Agency investigate the claims described in
this evaluation and coordinate with the respective agencies to avoid distributing guidance to generators
that conflicts with guidance from other agencies. EPA should also seek input from states, assistance
providers, and generators about other instances of conflicting regulations and resolve these situations.
7. En co urage Best Practices am ong States
State agencies conduct a wide range of compliance monitoring and assistance activities. For example,
generator self-certification programs, like those in Colorado, Massachusetts and other states have the
potential to increase generators' awareness of compliance requirements while also providing better
compliance information to regulators. Hotlines devoted to answering generators' questions facilitate
communication between industry and regulators and help generators apply the regulations to make
accurate HW determinations. Coordination across state agencies can help inspectors identify new
businesses subject to HW regulations. We recommend EPA facilitate communication between the states
so they can learn from each other's approaches. We recognize that EPA provides competitive grants to
fund the sector-based compliance assistance centers, and that these are good clearinghouses for
compliance assistance materials. However, we also encourage EPA to help states learn from each other
with regard to best practices, such as approaches to targeting state inspections and making new generators
aware of their obligations.
8. Promote Best Practices from Federal Facilities
EPA should use the federal facilities survey information, collected for this evaluation, to encourage HW
determination best practices amongst generators. For example, EPA could issue a memo to assistance
providers, trade associations, and other stakeholders that frequently interact with generators, stating that
EPA's review of federal facilities revealed that federal HW generators that implement processes for
making HW determinations are more likely to make accurate HW determinations. The memo could point
to resources that could assist facilities in developing appropriate waste determination processes (e.g., a
decision-tree, such as Texas has developed or example procedures developed by federal facilities
themselves). The memo could also include other federal HW generator best practices the Agency has
identified. This would help generators understand the actions they can take to improve HW determination
compliance.
9. Develop a Communications Strategy to Increase Awareness of Compliance Monitoring
Presence and Enforcement Actions Related to HW Determination
This evaluation revealed that the perception that they "will not get caught" lulls some generators into a
sense of complacency, instead of taking the time and effort to make accurate HW determinations. Where
possible, EPA and the states should increase their field presence and inspection frequency. In addition,
the Agency should consider taking steps to increase awareness of its compliance monitoring and
enforcement actions when they occur. EPA could alert trade associations and assistance providers about
recent compliance and enforcement actions, so that awareness of EPA's presence would be magnified. In
addition, EPA could provide information about the most common types of violations, what generators can
do to prevent them, and where they can get further compliance assistance. This communications strategy
would broadcast EPA's compliance monitoring presence to an audience much larger than can be reached
through inspections alone and would motivate generators to take steps to come into compliance.
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