Environmental compliance can be a complex business. In fact, in certain situations, the Resource Conservation and Recovery Act (RCRA), and other legislation, may actually deter use of innovative waste management technologies and best practices. Here are three questions to ask about your organization:
Does your organization generate any wastes regulated as hazardous waste under hazardous waste management laws – RCRA or its state counterparts?
Has your organization ever been forced to pay site cleanup liability at a site contaminated by hazardous substances – the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA; also known as Superfund) or its state counterparts?
How much do you believe your organization realizes the close link between the first two – let alone that steps taken to ensure RCRA compliance can decrease or increase the risk of eventual CERCLA liability?
RCRA – managing today’s wastes
Most professionals realize that RCRA requires companies that generate hazardous wastes to ensure their safe management, from the point and time of generation to the point and time where the wastes are rendered harmless to human health and the environment. Folks like to call this “Cradle to Grave” management. Wastes may end up being recycled to squeeze out more value, treated or incinerated to neutralize their hazardous characteristics, and/or eventually buried at specially designed landfills. RCRA provides a variety of permitting schemes for these destination “treatment storage and disposal (TSD)” facilities and recyclers.
These days, most organizations know it’s relatively easy to confirm whether a destination facility has appropriate permitting, so it’s also relatively easy to avoid violating requirements to send wastes to one of these facilities. Some organizations even have the resources and contacts to evaluate permitted facilities, to try to pick the well run ones that seem less likely to break down at some point and leaving the generators with cleanup liability. Generators can readily investigate facilities’ compliance history and status (how many violations and how severe are they), and may have access to credit ratings and insurance information. Generators who do so may then stick with facilities with good operating records, drop those with worse records, and/or look for new ones.
CERCLA – paying for yesterday’s wastes today … or today’s wastes tomorrow
When the Superfund law was first enacted in 1980, the public was just becoming aware that tens of thousands of locations around the country had been contaminated by chemical disposal. As its name explains, CERCLA was designed to create a comprehensive national scheme for response to contamination, and compensation and liability for the costs of cleanups. Under this scheme, cleanup costs at a contaminated site might be assigned to the present or past owners of the land and/or facility, operators of the facility, and/or “arrangers-for” who arranged for the disposal of the materials or wastes that ended up causing the contamination. A hazardous waste generator that arranges for its waste to be sent to a RCRA-permitted destination facility can be liable under CERCLA if that facility eventually closes with site contamination that exceeds its financial resources. Potentially liability is “strict,” meaning that full compliance with all applicable requirements (including those under RCRA) does nothing to protect a generator from CERCLA liability at a dirty site.
When RCRA and CERCLA combine to deter innovative waste management
Cleanup liability under CERCLA is site-specific, so an alert hazardous waste generator knows to evaluate each potential destination facility separately. Really alert generators also know some additional details:
once you’ve sent waste to a facility, you’ll remain a potentially responsible party (PRP) there even after you stop sending additional waste. It’s not quite “in for a penny, in for a pound,” but if your total contribution to a particular facility is small, your potential liability won’t change much if you send that 100th shipment of waste there for management.
therefore, redirecting that 100th drum away from a facility where you’ve already sent 99 drums and to an entirely new facility means you could be a PRP at two facilities instead of just one.
So an organization that evaluates its hazardous waste recyclers and TSD facilities periodically may consider the probabilities and decide to continue sending waste to a problematic facility rather than switching to one that seems to be “cleaner.” Years ago I worked with an innovative new waste management company that eventually failed because nobody was willing to be that first large “deep pocket” customer, because they already sent lots of waste to traditional landfills. My innovative friends eventually went bankrupt – as did several of the landfills, leaving those liability conscious generators with the PRP liability they'd been trying to minimize.
I suggest that organizations that take steps to understand and manage the potential RCRA and CERCLA liability associated with offsite destination facilities think hard about the patterns of costs, benefits and probabilities they face. The following checklist provides some ways to begin to organize that thinking.
Does my organization identify each offsite destination facility where its regulated hazardous wastes are sent for recycling, treatment, storage and/or disposal? Y/N
- current facilities, and associated waste types and volumes
- historical facilities, and associated waste types and volumes
Has my organization evaluated the regulatory and financial status of each destination facility? Y/N
- Is/Was each such facility fully permitted to perform the assigned management activities? Y/N
- Has each facility’s compliance record/status been evaluated to look for possible patterns of violations? Y/N
- Has each facility’s insurance been evaluated, to evaluate whether insurance would be available to pay for cleanup? Y/N
- Has each facility’s financial status been evaluated (facility-specific, or as one facility within a larger organizational structure)? Y/N
Has my organization incorporated the potential that RCRA, CERCLA or comparable state law liability may apply to my organization based on conditions at destination facilities? Y/N
- if so, is there a formal policy addressing these issues? Y/N
- if so, does that policy include explicit consideration of when to discontinue using an existing/historical destination facility? Y/N
- if so, does that policy include explicit consideration of when to begin to use an additional destination facility? Y/N
Has my organization ever changed destination facilities based on the potential that RCRA, CERCLA or comparable state law liability may apply to my organization based on conditions at destination facilities? Y/N
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Hazardous Materials Program Commentary: California and Greenhouse Gas Auditing of Supply Chains.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org.