Hazardous Hauntings: Waste Beyond the "Grave"
Under RCRA, sites that generate hazardous waste are required to properly manage that waste from "cradle to grave." Hazardous waste is subject to regulation, in other words, from the moment it is generated until it reaches a final disposition via disposal, incineration, recycling, or otherwise.
Between the "cradle" and "grave," hazardous waste must be managed properly every step of the way. For generators, that responsibility entails correctly identifying and characterizing the waste, storing it in authorized containers, inspecting storage areas, training personnel, planning for emergencies, observing time and quantity limits, documenting off-site shipments, and more.
On Halloween, when ghosts and graveyards are already top-of-mind for many, the time is right to consider one way that hazardous waste can haunt US companies from "beyond the grave" years, decades, and even generations after a waste has shuffled off its RCRA coils.
How CERCLA Liability Goes "Beyond the Grave"
Cradle-to-grave is a useful way to describe the RCRA hazardous waste rules for on site management and disposal, but generators should not misinterpret the phrase to mean that responsibility ends at "the grave." In fact, a site that generates a hazardous waste is responsible for that waste forever.
Commonly referred to simply as “Superfund,” the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) was enacted by Congress to address contamination from hazardous substances—including hazardous wastes—that are abandoned or unintentionally released to the environment.
When environmental contamination is discovered, the law authorizes the EPA to seek out "potentially responsible parties" or PRPs to fund and/or perform cleanup and remediation. Even a generator that fully complies with every applicable RCRA requirement may be held liable if their waste enters the environment, and even if it happens decades after disposal.
Halloween "Tricks" to Limit CERCLA Liability
CERCLA liability has no statute of limitation that can shield a business after a certain amount of time has passed. To head off a hazardous waste haunting, generators should consider the long-term effects of procedures and decisions about how waste is managed, stored, recycled, transported, and/or disposed of.
Here are three quick Halloween "tricks" for ensuring your site's hazardous waste is properly transported, treated, and disposed of.
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.
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. (Why Your Choice of TSDF Matters)
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. FMCSA tracks and displays some motor carrier performance and safety data online in a database searchable by carrier name or DOT registration number: FMCSA Safety Measurement System (SMS).
One last "trick" for generators this Halloween (and all year round) is to keep accurate and complete records of hazardous waste determinations and the waste ID process, and of efforts to meet Land Disposal Restrictions (LDRs). These are crucial to demonstrate that the waste was managed, treated, and disposed of in compliance with RCRA.
CERCLA Responsibility and De Minimis Party Liability
When CERCLA identifies a cleanup site, they will also identify one or more potentially responsible parties (PRPs). This may result in one organization being held wholly responsible, or in hundreds of organizations sharing liability costs of activities like:
- 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).
In May 2020, for example, the EPA reached a multi-million-dollar settlement with 145 parties to clean up contaminated groundwater around the former site of a chemical recycling facility that ceased operations thirty years earlier. In May 2021, authorities settled with twenty-six additional “de minimis parties," who had each sent waste to the now-contaminated site for recycling or disposal.
The US EPA sometimes conducts response or cleanup and seeks to recover costs from PRPs. In other cases, the responsible parties are required to arrange for cleanup or perform it themselves.
Year Round Help with Hazardous Waste Compliance
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 Lion.com/RCRA today for hazardous waste compliance training and expertise trusted since 1977.
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