When Haz Waste Haunts Us from Beyond the Grave

Posted on 10/25/2021 by Roseanne Bottone and Roger Marks

The Resource Conservation and Recovery Act (RCRA) is a comprehensive management system that regulates hazardous waste from “cradle to grave.” In other words, your waste is subject to regulation from the moment it’s born until its final disposition.

Let's say your site generates hazardous waste. You identify the waste, count it properly, and store it in compliant containers. You comply with all of RCRA’s quantity and time limits and you date, mark, and label the containers properly at every step. You provide required hazardous waste training and refresher training for all personnel within the timeframe required. 

Lastly, you correctly prepare the Uniform Hazardous Waste Manifest to ship the waste offsite for treatment and disposal. After the drums are loaded and the truck pulls away, you can finally forget about that hazardous waste forever. Right?

Not quite. Even after disposal, a hazardous waste can haunt you—weeks, years, and even decades later.

What is CERCLA?

Commonly referred to simply as “Superfund,” the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) was created to address hazardous substances—including hazardous wastes—that are abandoned or unintentionally released to the environment.

Today the law mandates that every facility that uses, stores, or manufactures hazardous chemicals make its inventory public and report every release of a hazardous chemical to public officials and health personnel.
hazardous waste drum ghosts

CERCLA Potentially Responsible Parties (PRPs)

When CERCLA identifies a cleanup site, they will also identify potentially responsible parties (PRPs). The financial liability of PRPs can include payment for:
  • Sampling and monitoring to assess contamination;
  • Detecting, identifying, controlling, and disposing of hazardous substances;
  • Assessing extent of danger to public;
  • Administration and overhead; and
  • Enforcement (i.e., civil and criminal penalties).
US EPA may conduct the response and seek to recover costs from PRPs, or the PRP(s) may be required to arrange for cleanup or perform it themselves.
CERCLA’s implementing regulations are found in the National Contingency Plan (NCP).

3 Tips to Limit Future Liability

Here are three Halloween tips for ensuring your site's hazardous waste is properly transported, treated, and disposed of. 

1. Use reliable, proven waste haulers or transporters. Whenever possible, check your carrier's record of motor vehicle violations before you allow them to accept your waste. 

The Federal Motor Carrier Safety Administration (FMCSA) tracks and displays some motor carrier performance and safety data through its Safety Measurement System (SMS). Stakeholders that use the system can search carriers by name or DOT registration number to view motor carrier safety ratings. The Better Business Bureau can be helpful here too.

More: FMCSA's Compliance + Safety + Accountability (CSA) initiative 
2. Conduct a careful and critical examination of the processing and recycling services you use, as well as the TSDF that will be responsible for your waste. More: Why Your Choice of TSDF Matters
3. Consider environmental compliance history of all potential partners and vendors that will handle your hazardous waste. 

EPA’s Enforcement and Compliance History Online (ECHO). can provide insight into the environmental compliance record of a transporter or TSDF. 

The Long Arm of CERCLA

The designation of a PRP can be extensive and go far back into the past. Here's an example of just how far and wide CERCLA can reach to find parties to hold responsible for environmental contamination:

A refrigerant and solvent recycling facility that operated between 1976 and 1991 became a Superfund site. The company processed drums and bulk loads of industrial waste solvents and chemicals to form commercial chemical products.

Subsurface soil and groundwater at and around the site were discovered to have high concentrations of trichloroethylene (TCE), perchloroethylene (PCE), Freons and other contaminants. Long-term exposure to high levels of TCE and PCE can damage the nervous system, liver, and lungs, as well as increase the risk of cancer. EPA has designated both chemicals as high priorities for TSCA chemical risk evaluations in recent years.

In May 2020, EPA reached a $6.5 million settlement with 145 parties to clean up the contaminated ground water. One year later, authorities settled with twenty-six additional “De Minimis Parties," each of which had sent waste to the facility to be recycled and/or disposed of. The de minimis parties shared responsibility for $1.2 million in clean up costs (or about $46,000 each). 

These 26 companies shipped small quantities of hazardous waste to the facility for recycling, and they’re being held liable for some of the cleanup cost? For that matter, what did the original 145 companies that sent larger quantities do wrong? Presumably, they all did nothing wrong!

CERCLA legally adheres to a policy of “strict liability.” The EPA does not have to show that a person did anything wrong to be held liable. The 160+ responsible parties in this case each sent waste to the facility to be recycled or disposed of. Because the substances originated with them and later contributed to contamination, CERCLA can hold them liable for cleanup costs. 

Eternal Responsibility

There is no statute of limitation for CERCLA liability Once you create a hazardous waste and arrange for its disposal, you are responsible for it forever. Your waste management policies and procedures should always consider long-term implications for your business—in this lifetime and beyond.

Who You Gonna Call? 

For training and regulatory support to expertly identify, manage, and ship hazardous waste, generators nationwide rely on Lion Technology.

Need RCRA training before the end of the year? Fear not! Train online at your own pace with the RCRA Hazardous Waste Management online course or join a credentialed instructor for a live RCRA webinar. Don't be afraid—visit today for hazardous waste compliance training and expertise trusted since 1977. 

Happy Halloween! 

Tags: CERCLA, hazardous waste management

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