Legal alert

Legal Alert by John H. Phillips

Waste Minimization PlansA Regulatory Requirement

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ou are the president of Poly Painters Inc., a polymerbased metal-coating facility. Your facility generates approximately 2,000 kilograms of hazardous waste per month that you properly handle and send out for disposal. Your business operates profitably, but as with so many industries, you would like to reduce your hazardous waste disposal costs. Recently, an EPA representative visited your site to evaluate your waste disposal practices. Regarding hazardous wastes, the EPA representative evaluated your record keeping, your storage area, and your emergency plan. The EPA representative found no violations with the law in these areas; however, the EPA representative then asked to see your “waste minimization plan.” You informed the EPA representative that you did not know what he was talking about, but you assured him that your company does not generate more waste than any other similarly situated business. at least not intentionally. The EPA representative then informed you that he would not issue you a violation for not having a written “waste minimization plan,” but he would like you to put your waste minimization plan into writing and send it to him within 30 days. You are baffled; since when does EPA care if you have a waste minimization plan, so long as you are properly handling the waste you generate? You call your environmental consultant and your environmental attorney and ask if EPA can force you to have a waste minimization plan. Much to your surprise, the answer is yes, and every time you sign a hazardous waste manifest, you are certifying that your waste minimization plan is in place. Your attorney explains that with the passage of the Hazardous and Solid Waste Amendments of 1984 (HSWA), Congress established a significant new policy concerning hazardous waste management. Specifically, Congress declared that the reduction or elimination of hazardous waste generation at the source should take priority over the management of hazardous wastes after they are generated. Congress codified this requirement in the Resource Conservation and Recovery Act (RCRA) in which Congress declares it to be the national policy of the United States that wherever feasible, the generation of hazardous waste is to be expeditiously reduced or eliminated [42 U.S.C. section 6902(b)]. In 1990, Congress further clarified the role of pollution prevention in the nation’s environmental protection scheme by passing the Pollution Prevention Act (PPA) (42 U.S.C. sections 13101, et seq.). In 42 U.S.C. section 13 101(b), Congress stated again that the national policy of the United States is to prevent pollution or reduce pollution at the source whenever feasible. METAL FINISHING

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To enforce the waste minimization policy, Congress passed the certification requirements found at sections 3002(b) and 3005(h) of RCRA, as amended by HSWA [42 U.S.C. sections 6922(b) and 6925(h)]. Section 3002(b) requires hazardous waste generators who transport their wastes off-site to certify on their hazardous waste manifests that they have programs in place to reduce the volume or quantity, and toxicity of hazardous waste generated to the extent “economically practicable” for those who generate more than 1,000 kilograms of hazardous waste per month. Those who generate between 100 and 1,000 kilograms of hazardous waste per month certify that they had “made a good faith effort to minimize” their waste generation. (See item number 16 of the Uniform Hazardous Waste Manifest, EPA Form 8700-22.) Certification of waste minimization is also required as a condition of any permit issued under section 3005(h) for the treatment, storage, or disposal of hazardous waste at facilities that generate and manage hazardous wastes on-site. For many companies, certification was a rather unnerving experience, since EPA never defined what was necessary in a waste minimization program to assure compliance, nor defined the term “economically practicable.” Finally, on May 28, 1993, EPA published its guidance on what basic elements of a waste minimization program will allow persons to certify properly that they have implemented a program to reduce the volume and toxicity of hazardous waste to the extent “economically practicable.” In the guidance document published by EPA at 58 Federal Register 31114 on May 28, 1993, EPA lists many general elements that hazardous waste generators should include in a waste minimization program. EPA does not list any required elements, and it recognizes that companies may implement any of the elements in any number of different and unique ways. EPA also recommends, but does not require, that the generator or treatment, storage, or disposal facility document its program in writing. EPA also believes, but does not require, that the waste minimization program be signed by that corporate officer who is responsible for ensuring RCRA compliance. According to EPA, a proper waste minimization program includes top management support. According to EPA, this means making waste minimization a part of the organization policy and setting explicit goals for reduction of volume and toxicity of waste streams that are achievable within a reasonable period, and implementing recommendations identified through assessments, evaluations, and waste minimization teams. EPA also recommends designating a waste minimization coordinator who is responsible for facilitating

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effective implementation, monitoring, and evaluation of the program. EPA believes that companies should publicize success stories by establishing a forum where creative ideas can be heard and tried, and where individual and collective accomplishments can be recognized and rewarded. EPA also believes that training should be a part of the waste minimization plan to ensure that employees understand how waste generating affects the environment. EPA also believes that a proper waste minimization plan should include the characterization of wastewaste-management generation and costs. EPA believes that a company should maintain a waste accounting system to track the types and amounts of wastes, as well as the types and amounts of the hazardous constituents in wastes, including the rates and dates of generation. EPA believes that a waste generator should determine the true costs associated with waste management and cleanup as part of its waste minimization plan. EPA believes that the costs of regulatory oversight compliance, paperwork and reporting requirements, loss of production potential, costs of materials found in the waste stream, and potential environmental liability costs should be included in this calculation. Another element that EPA considers important in a waste minimization plan is periodic waste minimization assessments. EPA believes that periodic waste minimization assessments will identify sources of waste and will help determine the true costs of waste generation and management as part of a waste minimization plan. The assessment should also identify every opportunity in a process to prevent hazardous waste generation. As a part of this

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effort, EPA believes that waste minimization opportunities must be analyzed based on the true costs associated with waste management and cleanup, focusing especially on the true costs of treatment, storage, and disposal. Accounting and cost allocations are also important to EPA’s ideal waste minimization plan. EPA believes that where practical and implementable, organizations should appropriately allocate the true costs of waste management to the activities responsible for generating the waste. According to EPA, cost allocation can properly highlight the parts of the organization where the greatest opportunities for waste minimization exist. EPA also believes that companies should encourage the exchange of technical information on waste minimization from other parts of the organization, from other companies, from trade associations, from professional consultants, and from university or government technical assistance programs. Accordingly, EPA expects to find such items in an approvable waste minimization program. EPA also believes that a company forum should be provided to respond to hazardous waste issues and to identify potential areas for improvement. EPA also expects each organization to implement identified recommendations both within and outside the organization. You thus prepare, with the assistance of your attorney and your environmental consultant, a waste minimization program that meets the requirements of EPA. In so doing, you discover that you can reduce the amount of hazardous waste that your company generates by 11%. After submitting the completed waste minimiza-

tion program to EPA, both you and EPA are happy with the result. My recommendation to clients is to put together a waste minimization program that meets the minimum EPA expectations. To date, I know of no enforcement efforts by EPA against any company for failure to have a waste minimization program, even though each hazardous waste manifest signed for the last several years requires certification that one exists. No company, however, wants to be the first reported case of an enforcement action for failure to have a waste minimization program, and thus, I recommend to my clients that they prepare a waste minimization program to comply with 42 U.S.C. sections 6922(b) and 6922(h). The scope of the program need not include all the elements in EPA’s wish-list, but it should be written, and it should make a good-faith effort at determining areas in the facility where waste can be minimized and money can be saved. If you do not have such a plan, but you are signing hazardous waste manifests that certify such a plan exists, not only are you subjecting your company to potential liability, but you are potentially incurring personal liability for something with which it is not difficult to comply, and with which compliance a net savings to your company could result. As with any legal matter, you should always consult with your attorney. The above information, while deemed accurate by the author, should not he relied upon. Each set of,facts and circumstances will he di&erent and may lead to a different legal conclusion. John H. Phillips is a general partner in the law firm of Sanders and Phillips, Cincinnati. MF

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