It would be reasonable to think that when hazardous waste is produced that there is only one hazardous waste generator, given the U.S. Environmental Protection Agency’s (EPA) definition, which states that “Generator means any person, by site, whose act or process produces hazardous waste identified or listed in [40 CFR 261] or whose act first causes a hazardous waste to become subject to regulation.”

But nothing with the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations is necessarily straightforward.

Who is a hazardous waste generator?

EPA’s mission is to ensure the safe management of hazardous waste “from cradle to grave.” As written and interpreted by the EPA, the generator definition provides the EPA with leeway to determine who the generator is in the event of a RCRA violation at the “cradle” stage. In other words, the definition makes it possible to have more than one generator in certain situations where hazardous waste is produced.

Looking into the nuts and bolts of the generator definition, “person” (also defined in the RCRA regulations) is not only an individual, as you would expect, but also a firm, federal agency, trust, corporation, partnership, association, and the like. Because the RCRA definition of “person” is all encompassing, it gives room for almost any entity “whose act or process produces hazardous waste” to qualify as a generator. “By site” just means the physical location of the waste generating site that has been assigned an EPA identification number. Each site equals one generator.

The generator definition gets a little trickier when it says “… or whose act first causes a hazardous waste to become subject to regulation.” This part of the generator definition allows the entry into the definition of an entity in addition to the generating site—a second entity “whose act first causes” the waste to be regulated as a hazardous waste. The EPA has noted that “the definition of generator … also fits the person removing the hazardous waste from a manufacturing process unit or a product or raw material storage tank, transport vehicle or vessel. Although often it is not his ‘act or process’ that produces the hazardous waste, it is his act that causes the hazardous waste to become subject to regulation.”

Over the years, the EPA has answered numerous questions as to whether specific acts make an entity a generator. In answering, the EPA has created the concept of “co-generator” (a term not found in the RCRA regulations) by stating that “anyone involved in the generation of a hazardous waste can be held jointly and severally liable for compliance with the generator regulations.”

Examples of co-generating

Here are a couple situations where more than one person can meet the definition of generator:

• Once a year, a cleaning business removes hazardous sludges, residues, or sediments from the unit (e.g., tank) of a manufacturing company that goes beyond the routine pumping out of the tank. To the EPA, the cleaning business and the manufacturer are co-generators.
• A chemical manufacturing company hires independent contractors (who hire subcontractors) to perform various services (e.g., painting, construction, industrial cleaning) that generate hazardous waste on the company’s site, which the contractors and/or subcontractors remove from the company’s site. The EPA views the company, contractors, and subcontractors as co-generators.

In each of these examples, the EPA has stated that co-generators are jointly and severally liable for any violations of the hazardous waste generator requirements. The EPA has noted that it “does not object to, and in fact prefers” that only one of the generators, by mutual agreement (e.g., a contract) perform the generator responsibilities. When this is done, the EPA typically looks to the designated party to perform the generator responsibilities. If a responsible party is not clearly designated, or if the EPA does not know which party by mutual agreement is appointed to carry out the generator duties, the Agency will initially look to the operator of the process that produces the hazardous waste to fulfill the generator duties, as it believes this person is in the best position to perform the generator responsibilities. The EPA likes to point out, however, that it “reserves the right” to hold liable “any and all persons who fit the definition of ‘generator’ in a particular case where the requirements of 40 CFR 262 are not adequately met.”

What’s a generator to do?

If you find yourself in a situation that requires involvement with those that could potentially be considered co-generators, there are a few steps that are worth considering:

• It’s always a good idea to choose potential co-generators that understand the hazardous waste regulations and have been trained to manage hazardous waste in accordance with all applicable requirements.
• While not total protection from the EPA, it’s helpful to enter into a written agreement with any potential co-generators that clearly specifies who will be primarily responsible for complying with the hazardous waste generator regulations.
• Most obviously, proper management of hazardous waste that eliminates the possibility of regulatory violations is the very best course of action to take.