A generator of hazardous waste is defined in the regulations of the U.S. Environmental Protection Agency (USEPA) at 40 CFR 260.10 as any person, by site, whose act or process produces hazardous waste identified or listed in Part 261 or whose act first causes a hazardous waste to become subject to regulation.

This may seem straightforward, but there are four important terms in this definition that must be properly understood.

1. “person” is defined at 40 CFR 260.10 as, an individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, or any interstate body. This is an exhaustive list and is just the governments way of saying that a “person” may be any entity involved in the process of generating a hazardous waste.
2. “by site” refers to where a hazardous waste is generated, but the regulations do not define what is meant by a “site”. EPA tracks hazardous waste generation based on a physical location, assigning the site a unique identification number. The generation of hazardous waste on a single piece of property (or contiguous parcels) under the ownership of one person would be a single generator of hazardous waste no matter the size of the site or how many different Points of Generation (POG’s) it contained.
3. “act or process produces” this could refer to the act of the person who generates the waste or the owner of the process from where the waste was produced.
4. “or whose act…become subject to regulation” this means that the generator of the waste may not be the person whose act or process actually produced the waste.

Confused? Don’t be embarrassed, it’s meant to be confusing. This is one of those regulations the EPA deliberately leaves vague in order to have someone to hold responsible in the event of a violation. RO 11005 contains a good example of a company that has many contractors and sub-contractors at its site and is asking the EPA for an answer to its question: “Who is the generator?” EPA’s answer: “anyone involved in the generation of a hazardous waste can be held jointly and severally liable for compliance with the generator regulations.” This creates the position(s) of co-generators of hazardous waste (i.e., more than one person is responsible for the generation of the hazardous waste).

If co-generation status is a possibility for you, I suggest you take the following steps to protect yourself:

1. Identify any possible waste (especially hazardous waste) that may be generated by vendors or contractors on your site.  This may include maintenance, custodial, caretaking, security, etc.
2. Ensure a contract or formal agreement between you and any potential co-generators identifies who will be primarily responsible for compliance with the applicable generator regulations.  “EPA will look first to the generator designated by a mutual agreement among co-generators (RO 14027).” But even this doesn’t let you entirely off the hook, because “in the event that a violation occurs, all persons meeting the definition of  generator could be held liable for the improper management of waste (45 FR 72024, 72026: October 30, 1980).”
3. With #2 in mind I suggest you choose your co-generators carefully. Ensure they are aware of the hazardous regulations under RCRA and their hazardous waste personnel have received the applicable level of RCRA training.

Be aware that none of the above will protect you entirely if their is a violation of the regulations. One of the goals of the Resource Conservation and Recovery Act was to create Cradle-to-Grave responsibilities for anyone who generates a hazardous waste, and the generator regulations are one way of realizing that goal. The only way to protect yourself entirely is to not generate the hazardous waste in the first place.

Good training on the applicable hazardous waste regulations, sometimes known as RCRA training or hazardous waste personnel training; is a good idea for you, your employees, and for anyone who may be a co-generator of hazardous waste at your site. I can provide this training for you. I also provide HazMat Employee training required by the Pipeline and Hazardous Materials Safety Administration within the U.S. Department of Transportation (USDOT/PHMSA). Contact me for a free consultation to identify your training needs.