Who’s Responsible for Contractors’ Hazardous Waste Under RCRA?

Posted on 12/27/2016 by Roseanne Bottone

The situation is this: At your site, you have a tank. The tank stores a hazardous chemical created by a manufacturing process. Once a month, a third-party contractor visits your site to clean out the tank.

Once the contractor’s workers clean out the tank, you are left with residue, sediments, and sludge that meet EPA’s definition of a hazardous waste. So—who’s responsible for this hazardous waste?

If a contractor provides services at an industrial or commercial site, the site is actually the generator of that hazardous waste. To understand why, we can look to US EPA’s definition of the term “generator.” 

What Is a RCRA Hazardous Waste Generator?

Under RCRA, generator “means any person, by site, whose act or process produces hazardous waste… or whose act first causes a hazardous waste to become subject to regulation." (40 CFR 260.10)

Because both the company and the contractor contribute to the generation of hazardous waste, the Environmental Protection Agency (EPA) generally considers them to be jointly and severally liable as generators (See 45 FR 72026, October 30, 1980). 

This means both parties can be fully responsible for restitution for a violation. The EPA will then leave it to the owner-operator of the site and the contractor to wrangle with each other later.

EPA Hazardous Waste Enforcement

RCRA Hazardous Waste storage and managementThe EPA reserves the right to take enforcement action against any “person” (e.g., individual, firm, corporation, partnership, association, State, or municipality) who is a generator if the hazardous waste management requirements of 40 CFR 262 are not adequately met. These requirements include such things as on-site management, preparation for off-site shipment, and manifesting.

The EPA prefers that one of the parties assumes and performs the duties of the generator. It’s best that this agreement is specified in writing. This may include waste identification and documentation; counting the waste; managing it under the satellite/90-day/180-day rules as applicable; preparing it for off-site shipment; manifesting the waste; and following training, recordkeeping, reporting, and other administrative requirements.

Since the EPA can fine either the site or the contractor for violations, both parties may want to put into place some checks and balances to ensure that the other party is following their stipulated agreements.

What About Off-site Hazardous Waste Shipments?

Of particular concern is responsibility for off-site shipments. Contractors are often asked to remove from the site the hazardous waste generated from their activities. Generators may not transport hazardous waste or offer hazardous waste to a transporter without an EPA ID number, unless they are a conditionally exempt small quantity generator (CESQG)

Therefore, if the hazardous waste is generated at a small or large quantity generator facility, the contractor must have an EPA ID number as a transporter if he or she wishes to transport the waste themselves (40 CFR 261.5(b) and 262.12).

US DOT Hazmat Training and the Hazardous Waste Manifest

In addition, if the hazardous waste meets the definition of a DOT hazardous material at 49 CFR 171.8, whoever prepares the package for off-site shipment or fills out and signs a manifest must have full DOT training. If the hazardous waste requires a manifest for shipment, it will automatically be a DOT hazmat.

Loading hazardous waste DOT hazmat trainingIf the waste does not require a manifest (e.g., for universal waste or CESQG hazardous waste), it may or may not be a DOT hazardous material. Even if it is a hazmat, under certain circumstances as specified in 49 CFR 173.6, contractors may carry this waste in their own vehicles as a “material of trade." (See 49 CFR 171.8)

Typically, hazardous waste is not eligible for the US DOT's materials of trade exemption. However, in cases where the Federal hazardous waste regulations do not require the use of a Hazardous Waste Manifest, the material does not meet US DOT's definition of a "hazardous waste." Therefore, the waste may qualify as a material of trade, provided the other eligibility requirements at 49 CFR 173.6 are met. If you are not sure about whether your waste would qualify as a material of trade, check 49 CFR 173.6 for the hazard class and quantity limitations, and specific packaging requirements that apply. 

However, even with CESQG waste, it must be delivered to an appropriate destination facility.

The bottom line is that neither a site/company nor outside contractors may point a finger at the other party for violations in order to absolve themselves from potential liability. If you rely on a contractor to manage and dispose of hazardous waste, it is still critical that you understand the regulations that apply. Without that knowledge, you are not equipped to spot red flags, question noncompliant practices, or protect your site from costly EPA fines.

Ready for US EPA’s Generator Improvements Rule? 

This landmark EPA rulemaking will have a MAJOR impact on the way your site manages hazardous waste next year. The new rules take effect in May 2017, and understanding the changes is crucial to keep your site in compliance.

Get a clear view of what’s changing—from re-organized RCRA rules and changing definitions to new reliefs that could save you time and money—at the RCRA Hazardous Waste Management Workshop near you in January.

Get expert-led training trusted nationwide, and take home updated resource materials that make navigating the updated RCRA 40 CFR regulations as straightforward as possible.

First RCRA Workshops of 2017!

Cleveland, January 9–10  
Cincinnati, January 12–13 
Chicago, January 23–24 
St. Louis, January 26–27 
Indianapolis, January 30–31


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