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Legal alert
Legal Alert by John H. Phillips
Lead Paint ChipsAnother Hazardous Waste Story our company, Tower Painters Inc., (Tower) operates a company that refurbishes water towers in North America. Your company contracted with Crystal Water Supply Co. (Crystal) to refurbish one of its water towers. The tank that your company was to restore is a one million-gallon capacity tank, and is used for the storage of drinking water. As is typical with paint removal projects of this magnitude, your company erects scaffolding around the tower and then systematically removes the paint from the tower prior to applying the new coatings to the tower. The tank is cleaned using water (power wash) and power tools, such as “needle guns.” These paint removal methods generate much less waste than abrasive blasting, which removes all paint down to bare metal and generates a large amount of dust and debris. Two months after the project began, a U.S. EPA inspector visited the Crystal tank project to determine compliance with state and federal regulations for management of hazardous waste. During the inspection, the U.S. EPA observed an unlabeled X-gallon drum containing rocks, soil, and paint chips from the vacuuming of paint chips from around the tank. According the U.S. EPA inspector, he observed paint chips on the ground at the facility. In responseto their inspection the U.S. EPA requested information from your company under section 3007 of RCRA, 42 U.S.C. Section 6927, relating to the paint removal, surface conditioning, and painting of the Crystal tank. You submittedto U.S. EPA analytical resultsof six soil samples and one sample of paint chips. These results showedthat the paint chip samplecontained 100milligrams per liter (mg/L) of lead, as measuredby the Toxicity Characteristic Leaching Procedure (TCLP), which level exceeds the regulatory threshold of 5.0 rng/L. 40 C.F.R. Section 261.24. The soil samples,not taken from the drums of soil and paint chips vacuumed up from the site but taken from the soil around the water tower, did not exceed that threshold. Accordingly, the paint chips would be considered a hazardous waste, but the soil would not be a hazardous waste. Your feeling is that sinceyou removed all of the paint chips that drifted away from the project, and since the soil around the property did not indicate a concentration of lead constituting a hazardous waste, you are not in any trouble. However, at the suggestionof thr: U.S. EPA inspector,and just to be safe, you submit to the 1..S. EPA a notification of hazardouswaste activity report pursuant to section 3010 of RCRA, informing the U.S. EPA that your company would generate, transport, treat, store, nr dispose of hazardous waste. Pursuantto the notice that your company submitted, YOU informed the U.S. EPA that t.he Crystal tank project
Y
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would generate between 100 and 1,000 kilograms per month of DO08 hazardouswaste, which is defined as waste containing regulated amounts of lead. 40 C.F.R. Section 261.24. In addition you agreeto ship the drums of soil and paint chips vacuumed up at the site as hazardous waste rather than submit testing results for each drum generated just to prove that the waste is not hazardous. You mostly forgot about the U.S. EPA and the inspection until yesterday when you were notified that the U.S. EPA was issuinga complaint againstyour company and seeking civil penalties basedupon the inspectionsand the information obtained from the U.S. EPA’s information requestunder Section 3007 of RCRA. A complaint was issued against your company under the authority of Section 3008 of RCRA, 42 U.S.C. Section 6928, alleging violations of RCRA and the applicable hazardouswaste regulations implemented pursuant to RCRA. The complaint chargesyour company with failing to label a container of hazardouswaste with the words “Hazardous Waste,” as required by 40 C.F.R. Section 262.34(a)(3), and failing to mark the container of hazardous waste with the date that accumulation started, as required by 40 C.F.R. Section 262.34(a)(2). For these violations the U.S. EPA proposesthat your company pay a penalty of $10,000. “This is crazy,” you think, ‘the soil samplesshowed that the soil around the facility did not contain sufficient paint levels to be hazardous.” Believing that your company hasdone nothing wrong, you immediately take the complaint to your environmental attorney ask for guidance. “It’s not the money,” you tell your attorney, “It’s the principle.” Your attorney explains that in order to establisha prima facie case of liability on the two charges being brought against your company, the U.S. EPA must come forward with evidence to show that the material in the drum was a hazardouswaste. The U.S. EPA must also establishthat the container was required to be labeled and marked in accordance with 40 C.F.R. Section 262.34 at the time of the inspection, and that your company is liable asthe generator of the hazardouswaste. You ask your attorney if the U.S. EPA has enough evidence to sustain its burden of proof and. thus, find your company guilty of the alleged violations. Your attorney explains that the U.S. EPA will most likely use the very information that you filed with the U.S. EPA to attempt compliance to find you guilty of the violations. The laboratory analysis of the paint chip sampleshowed that it contained lead in an amount exceeding the regulatory threshold. Your attorney explains that your company will have to admit that the paint chip sample analyzed was Science
Inc.
METAL
FINISHING
l
SEPTEMBER
1998
representative of paint material removed from the tower. Furthermore, your attorney explains that the Notification of Hazardous Waste Activity, which is a report that is required to be filed by persons generating hazardous waste, under RCRA Section 3010, as well as the hazardous waste manifest for shipments of paint chips and soil vacuumed up at the site and sent to a hazardous waste treatment facility each contained a signed certification that the information on those forms is accurate. Reports or records that are required to be filed or kept by law may be used as admissions to establish liability. Sierra Club v. Simkins Industries, Inc., 847 E2d 1109, 1115 n. 8 (4th Cir. 1988), cert. denied, 491 U.S. 904; Chesapeake Bay Foundation v Bethlehem Steel Corp., 608 F. Supp. 440. 451 (D.C. Md. 1985); Student Public Interest Research Group of New Jersey v. Monsanto Co., 600 ESupp. 1479, 1485 (D.N.J. 1985). As for the waste in the drum, your attorney explains that the inspection report of the U.S. EPA inspector stated that the 55-gallon drum was observed at the facility. The report stated that the drum contained paint chips removed from the water tower mixed with soil. The inspector was told that the chips had been removed from the grolund using a vacuum unit known to the industry as a “Billy Goat.” Your attorney further explains that there is no evidence of any samples being taken of the material in the drum to determine whether it met the threshold toxicity for lead of 5.0 mg/L, as
set forth in 40 C.F.R. Section 261.31. The evidence shows only that a sample of paint chips alone met the threshold. Your attorney explains that the regulations provide, at 40 C.F.R. Section 262.34(a)(2) and (a)(3): Except as provided in paragraphs (d), (e) and (f) of this section, a generator may accumulate hazardous waste on-site for 90 days or less without a permit or without having interim status, provided that;. . .:(2) The date upon which each period of accumulation begins is clearly marked and visible for inspection on each container; (3) While being accumulated on-site, each container and tank is labeled or marked clearly with the words, “Hazardous Waste”:. The regulation is very clear that the container must be labeled or marked during the accumulation period. However, your contention is that the waste would not have been hazardous since it was mostly rocks and dirt, just like the samples analyzed from the ground; therefore, no markings were required. Your attorney states that the U.S. EPA will rely on the hazardous waste manifest sent with the drum to a hazardous waste disposal facility to prove that the waste was hazardous. The manifest was a report required to be kept by law. 40 C.F.R. Sections 262.20 and 262.40. As such, it constitutes an admission by your company that the material in the drum was a hazardous waste. Student Public Interest Group of New Jersey v. Monsanto Co., 600 F. Supp.
Turn-Key Supplier of Aqueous Parts Cleaning Systems Midbrook, Inc., manufacturer of Hurricane parts cleaning systems, offers the best combination of Process, Chemistry and Equipment. Plus... Service & Maintenance, Spare Parts, Wastewater Treatment.
1 Midbrook’scustomerspecificequipmentselectionprocesstakes youthrouqh8 steps:1 1)Cleaning 2)
3) 4) 5) 6)
7) 8)
Process Objective Part Analysis Soil Analysis Part Orientation/Material Handling Production Volume Requirements Plant Layout/Floor Space Requirements Wastewater Management Equipment Selection
Midbrook, 2080 Brooklyn
Rd. I Jackson, MI 49203 USA Phone: (517) 787-3481 / l-800-966-9274 I Fax: (517) 787-2349 Visit our web site at: www.midbrook.com e-mail: webmaster Q midbrook.com
Circle
METAL
FINISHING
Inc.
. SEPTEMBER
1998
118 on reader
information
card
63
at 1485; 4 Wigmore, Evidence Sections 1058 and 1059. YOU explain to your attorney that the manifest was submitted after the U.S. EPA inspections. YOUsimply desired to COoperate with the U.S. EPA and to follow the inspector’s suggestionor guidance. It would seemunfair if you were strictly held to such information, and could not subsequently contest it. Your attorney agreesand statesthat you may contest the admissionif you have credible evidence indicating that a material previously designatedas hazardous in fact was not hazardous. See, In re U.S. Aluminum, Docket No. II EPCRA-89-0124 (Ruling on Motion for Partial Accelerated Decision, November 26, 1991), slip op. at 6-7; In re Pitt-Des Moines Inc., Docket No. EPCRA-VIII89-06 (Initial Decision, July 24, 1991); In re American Desk Manufacturing Co. Inc., EPCRA Docket NO. VI-449s (Ruling Granting Complainant’s Motion for Partial Accelerated Decision, October 3 1, 1995), slip op. at 8. Nevertheless,your attorney explains that your company is responsiblefor rebutting the presumption of hazardous waste. The waste you shippedin the drum is now gone, and at this point there is no evidence to contest the admissionon the manifest. Your company was required to determine whether the waste was hazardous and to keep records supporting that determination for three years after disposal pursuant to 40 C.F.R. Sections 262.1I and 262.40. If the waste is hazardous the regulations require the generator to prepare a hazardous waste manifest before transporting it for disposalpursuant 40 C.F.R. Section 262.20. Your attorney explains that your company’s inability to produce any evidence on the contents of the drum, particularly in view of theseregulatory requirements,leadsto the conclusion that the information on the manifest is correct. The evidence againstyour company is sufficient to establish
that the material in the %-gallon drum washazardouswaste and that it was not marked and labeled as required by 40 C.F.R. Sections 26234(a)(2) and 26234(a)(3); therefore, absentevidence to the contrary, your company’s identification of the waste as hazardouson the manifest is sufficient to establish that the material in the drum was hazardous waste, and your company is likely to be found guilty of failing to designatethe drum as hazardous waste. You ask your attorney what he recommends.Since the U.S. EPA can present a prima facie case of violating the hazardouswaste laws, and since no evidence exists to rebut the presumption, his responseis quick and simple, “pay the fine.” Believe it or not, the above facts are taken from an actual case.Following the U.S. EPA suggestionsmay not always be the least likely way to avoid liability. Although no ill intent was shown regarding the motive of the inspector in this example, the company clearly thought that it had been “set up.” I recommendthat any company that is given free advice from the U.S. EPA inspectors verify the wisdom of the advice by checking with an attorney. There is an old saying in the legal profession, “Free advice is not worth what it costs you.” The free advice given by the U.S. EPA inspector in this case only cost this company $10,000 in civil penalties. As with uny legal mutteel;you should always consult with your attorney. The ubove information, while deemedaccurate by the authol; should not be relied upon. Each set of fcxts and circumstanceswill be diRerent und may lead to a different legul conclusion. JohnH. Phillipsis ownerandgeneralmanagerof PhillipsLaw Firm, Cincinnati. MF
l
l
l
Economic system Comzpacl aksign Rugged, all stainless steelwnstructtbn hcuso;ncustomer serviceandquaMy l
Aaueozcs Cleaner Recvcle GSEfJ’licentTreatme& The SeproKleensystemaddresses the high cost of alkaline cleaners by recycling the solutions continuouslyallowing maximum utilization of expensivechemicals.
sizes are no problem Schaffner also offers a wrde variety of interleafmg. spacing and slashing All Schaffner coated abrasrve FLAPWHEELS are produced in a SPC environment to assure quallty
l
Phone or Fax /or our free catalog.
l l l
l
Phone Circle
METAL
(412) 089
761-99020r on reader
FINISHING
Fax, (412)
761-8998
information
card
. SEPTEMBER
Extendsbath life Reduceschemicaluse Reduceswasteeffluent volume Improves parts washing - quality Immediatebenefit and fast payback Circle 120 on reader
1998
‘+rotech Svstems lncomorated -,_ ..__ ark .____ 2378 Holly Lane. Ottawa, Ontario, CANADA KIV 7Pl Phone: 613 523-1641 FAX: 613 731-0851 Internet: http:l/www.seprotech corn Y’k
information
card
65
Lead Paint ChipsAnother Hazardous Waste Story our company, Tower Painters Inc., (Tower) operates a company that refurbishes water towers in North America. Your company contracted with Crystal Water Supply Co. (Crystal) to refurbish one of its water towers. The tank that your company was to restore is a one million-gallon capacity tank, and is used for the storage of drinking water. As is typical with paint removal projects of this magnitude, your company erects scaffolding around the tower and then systematically removes the paint from the tower prior to applying the new coatings to the tower. The tank is cleaned using water (power wash) and power tools, such as “needle guns.” These paint removal methods generate much less waste than abrasive blasting, which removes all paint down to bare metal and generates a large amount of dust and debris. Two months after the project began, a U.S. EPA inspector visited the Crystal tank project to determine compliance with state and federal regulations for management of hazardous waste. During the inspection, the U.S. EPA observed an unlabeled X-gallon drum containing rocks, soil, and paint chips from the vacuuming of paint chips from around the tank. According the U.S. EPA inspector, he observed paint chips on the ground at the facility. In responseto their inspection the U.S. EPA requested information from your company under section 3007 of RCRA, 42 U.S.C. Section 6927, relating to the paint removal, surface conditioning, and painting of the Crystal tank. You submittedto U.S. EPA analytical resultsof six soil samples and one sample of paint chips. These results showedthat the paint chip samplecontained 100milligrams per liter (mg/L) of lead, as measuredby the Toxicity Characteristic Leaching Procedure (TCLP), which level exceeds the regulatory threshold of 5.0 rng/L. 40 C.F.R. Section 261.24. The soil samples,not taken from the drums of soil and paint chips vacuumed up from the site but taken from the soil around the water tower, did not exceed that threshold. Accordingly, the paint chips would be considered a hazardous waste, but the soil would not be a hazardous waste. Your feeling is that sinceyou removed all of the paint chips that drifted away from the project, and since the soil around the property did not indicate a concentration of lead constituting a hazardous waste, you are not in any trouble. However, at the suggestionof thr: U.S. EPA inspector,and just to be safe, you submit to the 1..S. EPA a notification of hazardouswaste activity report pursuant to section 3010 of RCRA, informing the U.S. EPA that your company would generate, transport, treat, store, nr dispose of hazardous waste. Pursuantto the notice that your company submitted, YOU informed the U.S. EPA that t.he Crystal tank project
Y
62
0 Copyright
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would generate between 100 and 1,000 kilograms per month of DO08 hazardouswaste, which is defined as waste containing regulated amounts of lead. 40 C.F.R. Section 261.24. In addition you agreeto ship the drums of soil and paint chips vacuumed up at the site as hazardous waste rather than submit testing results for each drum generated just to prove that the waste is not hazardous. You mostly forgot about the U.S. EPA and the inspection until yesterday when you were notified that the U.S. EPA was issuinga complaint againstyour company and seeking civil penalties basedupon the inspectionsand the information obtained from the U.S. EPA’s information requestunder Section 3007 of RCRA. A complaint was issued against your company under the authority of Section 3008 of RCRA, 42 U.S.C. Section 6928, alleging violations of RCRA and the applicable hazardouswaste regulations implemented pursuant to RCRA. The complaint chargesyour company with failing to label a container of hazardouswaste with the words “Hazardous Waste,” as required by 40 C.F.R. Section 262.34(a)(3), and failing to mark the container of hazardous waste with the date that accumulation started, as required by 40 C.F.R. Section 262.34(a)(2). For these violations the U.S. EPA proposesthat your company pay a penalty of $10,000. “This is crazy,” you think, ‘the soil samplesshowed that the soil around the facility did not contain sufficient paint levels to be hazardous.” Believing that your company hasdone nothing wrong, you immediately take the complaint to your environmental attorney ask for guidance. “It’s not the money,” you tell your attorney, “It’s the principle.” Your attorney explains that in order to establisha prima facie case of liability on the two charges being brought against your company, the U.S. EPA must come forward with evidence to show that the material in the drum was a hazardouswaste. The U.S. EPA must also establishthat the container was required to be labeled and marked in accordance with 40 C.F.R. Section 262.34 at the time of the inspection, and that your company is liable asthe generator of the hazardouswaste. You ask your attorney if the U.S. EPA has enough evidence to sustain its burden of proof and. thus, find your company guilty of the alleged violations. Your attorney explains that the U.S. EPA will most likely use the very information that you filed with the U.S. EPA to attempt compliance to find you guilty of the violations. The laboratory analysis of the paint chip sampleshowed that it contained lead in an amount exceeding the regulatory threshold. Your attorney explains that your company will have to admit that the paint chip sample analyzed was Science
Inc.
METAL
FINISHING
l
SEPTEMBER
1998
representative of paint material removed from the tower. Furthermore, your attorney explains that the Notification of Hazardous Waste Activity, which is a report that is required to be filed by persons generating hazardous waste, under RCRA Section 3010, as well as the hazardous waste manifest for shipments of paint chips and soil vacuumed up at the site and sent to a hazardous waste treatment facility each contained a signed certification that the information on those forms is accurate. Reports or records that are required to be filed or kept by law may be used as admissions to establish liability. Sierra Club v. Simkins Industries, Inc., 847 E2d 1109, 1115 n. 8 (4th Cir. 1988), cert. denied, 491 U.S. 904; Chesapeake Bay Foundation v Bethlehem Steel Corp., 608 F. Supp. 440. 451 (D.C. Md. 1985); Student Public Interest Research Group of New Jersey v. Monsanto Co., 600 ESupp. 1479, 1485 (D.N.J. 1985). As for the waste in the drum, your attorney explains that the inspection report of the U.S. EPA inspector stated that the 55-gallon drum was observed at the facility. The report stated that the drum contained paint chips removed from the water tower mixed with soil. The inspector was told that the chips had been removed from the grolund using a vacuum unit known to the industry as a “Billy Goat.” Your attorney further explains that there is no evidence of any samples being taken of the material in the drum to determine whether it met the threshold toxicity for lead of 5.0 mg/L, as
set forth in 40 C.F.R. Section 261.31. The evidence shows only that a sample of paint chips alone met the threshold. Your attorney explains that the regulations provide, at 40 C.F.R. Section 262.34(a)(2) and (a)(3): Except as provided in paragraphs (d), (e) and (f) of this section, a generator may accumulate hazardous waste on-site for 90 days or less without a permit or without having interim status, provided that;. . .:(2) The date upon which each period of accumulation begins is clearly marked and visible for inspection on each container; (3) While being accumulated on-site, each container and tank is labeled or marked clearly with the words, “Hazardous Waste”:. The regulation is very clear that the container must be labeled or marked during the accumulation period. However, your contention is that the waste would not have been hazardous since it was mostly rocks and dirt, just like the samples analyzed from the ground; therefore, no markings were required. Your attorney states that the U.S. EPA will rely on the hazardous waste manifest sent with the drum to a hazardous waste disposal facility to prove that the waste was hazardous. The manifest was a report required to be kept by law. 40 C.F.R. Sections 262.20 and 262.40. As such, it constitutes an admission by your company that the material in the drum was a hazardous waste. Student Public Interest Group of New Jersey v. Monsanto Co., 600 F. Supp.
Turn-Key Supplier of Aqueous Parts Cleaning Systems Midbrook, Inc., manufacturer of Hurricane parts cleaning systems, offers the best combination of Process, Chemistry and Equipment. Plus... Service & Maintenance, Spare Parts, Wastewater Treatment.
1 Midbrook’scustomerspecificequipmentselectionprocesstakes youthrouqh8 steps:1 1)Cleaning 2)
3) 4) 5) 6)
7) 8)
Process Objective Part Analysis Soil Analysis Part Orientation/Material Handling Production Volume Requirements Plant Layout/Floor Space Requirements Wastewater Management Equipment Selection
Midbrook, 2080 Brooklyn
Rd. I Jackson, MI 49203 USA Phone: (517) 787-3481 / l-800-966-9274 I Fax: (517) 787-2349 Visit our web site at: www.midbrook.com e-mail: webmaster Q midbrook.com
Circle
METAL
FINISHING
Inc.
. SEPTEMBER
1998
118 on reader
information
card
63
at 1485; 4 Wigmore, Evidence Sections 1058 and 1059. YOU explain to your attorney that the manifest was submitted after the U.S. EPA inspections. YOUsimply desired to COoperate with the U.S. EPA and to follow the inspector’s suggestionor guidance. It would seemunfair if you were strictly held to such information, and could not subsequently contest it. Your attorney agreesand statesthat you may contest the admissionif you have credible evidence indicating that a material previously designatedas hazardous in fact was not hazardous. See, In re U.S. Aluminum, Docket No. II EPCRA-89-0124 (Ruling on Motion for Partial Accelerated Decision, November 26, 1991), slip op. at 6-7; In re Pitt-Des Moines Inc., Docket No. EPCRA-VIII89-06 (Initial Decision, July 24, 1991); In re American Desk Manufacturing Co. Inc., EPCRA Docket NO. VI-449s (Ruling Granting Complainant’s Motion for Partial Accelerated Decision, October 3 1, 1995), slip op. at 8. Nevertheless,your attorney explains that your company is responsiblefor rebutting the presumption of hazardous waste. The waste you shippedin the drum is now gone, and at this point there is no evidence to contest the admissionon the manifest. Your company was required to determine whether the waste was hazardous and to keep records supporting that determination for three years after disposal pursuant to 40 C.F.R. Sections 262.1I and 262.40. If the waste is hazardous the regulations require the generator to prepare a hazardous waste manifest before transporting it for disposalpursuant 40 C.F.R. Section 262.20. Your attorney explains that your company’s inability to produce any evidence on the contents of the drum, particularly in view of theseregulatory requirements,leadsto the conclusion that the information on the manifest is correct. The evidence againstyour company is sufficient to establish
that the material in the %-gallon drum washazardouswaste and that it was not marked and labeled as required by 40 C.F.R. Sections 26234(a)(2) and 26234(a)(3); therefore, absentevidence to the contrary, your company’s identification of the waste as hazardouson the manifest is sufficient to establish that the material in the drum was hazardous waste, and your company is likely to be found guilty of failing to designatethe drum as hazardous waste. You ask your attorney what he recommends.Since the U.S. EPA can present a prima facie case of violating the hazardouswaste laws, and since no evidence exists to rebut the presumption, his responseis quick and simple, “pay the fine.” Believe it or not, the above facts are taken from an actual case.Following the U.S. EPA suggestionsmay not always be the least likely way to avoid liability. Although no ill intent was shown regarding the motive of the inspector in this example, the company clearly thought that it had been “set up.” I recommendthat any company that is given free advice from the U.S. EPA inspectors verify the wisdom of the advice by checking with an attorney. There is an old saying in the legal profession, “Free advice is not worth what it costs you.” The free advice given by the U.S. EPA inspector in this case only cost this company $10,000 in civil penalties. As with uny legal mutteel;you should always consult with your attorney. The ubove information, while deemedaccurate by the authol; should not be relied upon. Each set of fcxts and circumstanceswill be diRerent und may lead to a different legul conclusion. JohnH. Phillipsis ownerandgeneralmanagerof PhillipsLaw Firm, Cincinnati. MF
l
l
l
Economic system Comzpacl aksign Rugged, all stainless steelwnstructtbn hcuso;ncustomer serviceandquaMy l
Aaueozcs Cleaner Recvcle GSEfJ’licentTreatme& The SeproKleensystemaddresses the high cost of alkaline cleaners by recycling the solutions continuouslyallowing maximum utilization of expensivechemicals.
sizes are no problem Schaffner also offers a wrde variety of interleafmg. spacing and slashing All Schaffner coated abrasrve FLAPWHEELS are produced in a SPC environment to assure quallty
l
Phone or Fax /or our free catalog.
l l l
l
Phone Circle
METAL
(412) 089
761-99020r on reader
FINISHING
Fax, (412)
761-8998
information
card
. SEPTEMBER
Extendsbath life Reduceschemicaluse Reduceswasteeffluent volume Improves parts washing - quality Immediatebenefit and fast payback Circle 120 on reader
1998
‘+rotech Svstems lncomorated -,_ ..__ ark .____ 2378 Holly Lane. Ottawa, Ontario, CANADA KIV 7Pl Phone: 613 523-1641 FAX: 613 731-0851 Internet: http:l/www.seprotech corn Y’k
information
card
65