Q. Our company is a 3rd party warehouse company. We have various customers and each one holds their own EPA ID number at our site. One customer is a Large Quantity Generator (LQG). Are there any regulations that specify that both us and our customer must submit the biennial report?
|
A. There are no federal regulations that address your question. EPA has addressed similar questions by citing Agency policy. In your situation, the applicable EPA policy is regarding “co-generator” status.
40 CFR 261.10 defines a generator as “any person, by site, whose act or process produces hazardous waste identified or listed in 40 CFR Part 261 or whose act first causes a hazardous waste to become subject to regulation.” In a situation where a company (“Company A”) leased space within its facility to another company (“Company B”), EPA held that both the owner of the space, Company A, and the operator of the leased space, Company B, were jointly and severally liable as co-generators in connection with who was responsible for filling out the hazardous waste manifest for hazardous waste sent offsite for disposal. In this scenario, you, as the owner of the warehouse in which your lessee (the LQG you mention) has his/her hazardous waste generating operation would be the equivalent of Company A.
The fact that your scenario involves the question as to who is responsible for submitting your customer’s (the LQG’s) biennial report would probably not affect EPA’s interpretation of you and the LQG being co-generators and, therefore, being both responsible for submitting a biennial report.
However, EPA allows “co-generators” to designate one party to take primary responsibility for carrying out a generator’s duties on behalf of both parties. EPA prefers and encourages, where two or more parties are involved, that all parties agree to have one party perform the generator duties. Where this is done, EPA typically looks to the designated party to perform the generator responsibilities. If a responsible party is not clearly designated, or 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’s duties. In your scenario, one could easily conclude that the LQG is “the operator of the process” and would therefore be the person EPA would expect to submit the biennial report. EPA believes that this person is in the best position to perform the generator responsibilities. EPA likes to point out, however, that it reserves the right to bring enforcement actions against any person who fits the definition of “generator” if generator duties are not being fulfilled.
Since EPA’s “co-generator” policy is a federal policy, it is best to contact your state hazardous waste agency to verify that the state also follows the same or a similar policy.