The State of Oregon Department of Environmental Quality has determined that if Conditionally Exempt Small Quantity Generator Hazardous Waste is not shipped directly to a type of facility listed at 40 CFR 261.5(g)(3)(i)-(vii) that the waste loses its exemption from 40 CFR Part 263 Subpart B (Compliance with the Manifest System and Record-keeping).  The requirement for “direct delivery” is an informal interpretation of the term “ensure delivery” actually used in the federal rule.  Moreover, the Department has determined that “directly” precludes storage of CESQG waste at a transfer facility for more than the 10 days allowed under 40 CFR 263.12 for other hazardous wastes.  If there are no limits on how long an intermediary transporter can store the CESQG HW, the ODEQ reasons, then the generator cannot have ensured delivery of the waste to an authorized TSDF no matter how reputable the transporter may be.  USEPA declined to define the term “ensure delivery” when it adopted new rules for Small Quantity Generators on March 24, 1986 at 51 FR 10174 (and thereby creating the new category of CESQG).  Subsequently, in 1996, given the opportunity to address the issue, USEPA deferred (letter opinion dated May 1, 1996) and has not, to our knowledge, come back around to that issue.

Thus, if a licensed transporter stores CESQG waste at its transfer facility for more than 10 days, the condition imposed by 40 CFR 261.5(g) that the generator “ensure delivery” to an authorized Treatment Storage or Disposal Facility (“TSDF”) has not been met and – because the HW is no longer “conditionally exempt” – the generator may be found (retroactively) to have violated the rules of 40 CFR Part 262 Standards Applicable to Generators of Hazardous Waste.  This circumstance generally arises when a transporter consolidates or aggregates CESQG HW from several different generators (over a period exceeding 10 days) in order to minimize shipping and disposal costs to an authorized TSDF.

On the other hand, if a transporter’s 10-day (hazardous waste) transfer facility also operates as a non-hazardous (“solid”) waste “transfer station” under authority of a Solid Waste Disposal Facility Permit, ODEQ has determined that the facility is a type of facility listed at 40 CFR 261.5(g)(3)(i)-(vii), meaning that shipment to that facility for aggregation satisfies the “ensure delivery” requirement for exemption from the federal manifesting and storage rules.

Most professionals agree that aggregation / consolidation of CESQG HW from multiple generators to lower the costs of transportation and disposal makes perfect sense if done responsibly.  Conditionally exempt small quantity (hazardous waste) generators in Oregon who want to take advantage of these lower costs should  only use a transporter who operates out of a solid waste disposal facility (“transfer station”) permitted by ODEQ.