Editor’s note: Repairer Driven News late last year conducted an email interview with the Environmental Protection Agency on a collision repairer’s responsibility with regards to hazardous waste. Specifically, we looked at the “cradle-to-grave” risk of a shop being financially responsible for its handling even after the materials have been removed from the shop by a contractor. Here’s an excerpt from the conversation with an EPA spokeswoman, with minor formatting edits:
Q: Can you give me a general overview of the EPA’s cradle-to-grave rules and what it means for hazardous waste producers like body shops?
A: The Resource Conservation and Recovery Act (RCRA) Subtitle C establishes a federal program to manage hazardous wastes from cradle to grave. The objective of the Subtitle C program is to ensure that hazardous waste is handled in a manner that protects human health and the environment. In order to achieve this, there are Subtitle C regulations for the generation, transportation, and treatment, storage, or disposal of hazardous wastes. States become authorized to implement these regulations in lieu of the federal EPA, and are therefore largely responsible for running these programs.
Q: What kind of mitigation costs or other penalties does a waste producer face if it turns out their disposal company did something improper with their waste?
A: Mitigation costs and other penalties are case specific and based upon the type, seriousness, and duration of violations. States may be able to provide examples of costs and penalties that generators have incurred but there is a wide range in penalty amounts and in the extent of work that may be needed to come into compliance.
Q: What kind of paperwork, etc. should a waste producer look for in choosing a waste disposal company?
A: We recommend that facilities work with their states to identify options for waste disposal companies, for example, to confirm that the facility has the appropriate permits and to identify any potential compliance issues. Another resource for generators should they want to look up federal environmental compliance information on waste disposal facilities is EPA’s website: https://echo.epa.gov/.
Q: What kind of records should the waste producing business keep on hand? For how long?
A: There are specific regulatory requirements that govern recordkeeping under the RCRA hazardous waste program. There are three categories of generators (i.e., waste producers) that are subject to regulation, dependent largely upon how much hazardous waste they generate in a calendar month: Large Quantity Generators, Small Quantity Generators, and Very Small Quantity Generators (formerly known as Conditionally Exempt Small Quantity Generators (CESQGs). For more information about the generator categories, please see our website at: https://www.epa.gov/hwgenerators.
The hazardous waste generator recordkeeping requirements only apply to small and large quantity generators. These requirements can be found in 40 CFR 262.40. The regulatory text and link are below:
(a) A generator must keep a copy of each manifest signed in accordance with §262.23(a) for three years or until he receives a signed copy from the designated facility which received the waste. This signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter.
(b) A generator must keep a copy of each Biennial Report and Exception Report for a period of at least three years from the due date of the report.
(c) See §262.11(f) for recordkeeping requirements for documenting hazardous waste determinations.
(d) The periods or retention referred to in this section are extended automatically during the course of any unresolved enforcement action regarding the regulated activity or as requested by the Administrator.
Q: What is the rationale of making the waste producer liable for the waste forever? I can see why the EPA wouldn’t want producers like shops just giving their waste to anyone with a truck and a pulse. But if the shop has acted responsibly and in good faith in vetting and choosing a waste disposal company, why should the shop be responsible for the actions of their contractor potentially years later? To use an example from another industry, that’d be like blaming someone who invested in or did business with Enron in the 1970s for Enron’s actions in the 1990s and 2000s
A: Generally speaking, complying with all of the applicable RCRA regulations, as discussed above, is the best way to reduce or minimize any potential future liability. However, other environmental laws that deal with certain types of situations may apply. For example, the Superfund law (officially the Comprehensive Environmental Response, Compensation and Liability Act) imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site. Superfund liability is triggered if: 1) hazardous wastes are present at a facility, 2) there is a release (or a possibility of a release) of these hazardous substances, 3) response costs have been or will be incurred, and 4) the defendant is a liable party. There are four classes of Superfund liable parties: 1) current owners and operators of a facility, 2) past owners and operators of a facility at the time hazardous wastes were disposed, 3) generators and parties that arranged for the disposal or transport of the hazardous substances, and 4) transporters of hazardous waste that selected the site where the hazardous substances were brought. For more information on Superfund liability, please refer to this website; https://www.epa.gov/enforcement/superfund-liability
Q: Is there any bulletproof means a repairer can use to dispose of their waste and be sure the EPA won’t be contacting them about an issue years later? For example, I’ve heard references to something called a “certificate of destruction” – is waste destruction a viable option, and what happens in terms of shop liability if their hazardous waste contractor lies about the destruction?
A: The best advice for any generator of hazardous waste to minimize liability is to comply with the RCRA regulations to ensure their hazardous waste is properly managed and disposed of at appropriate facilities, maintain any required records, and maintain communication with state authorities on compliance. For more information on the types of facilities where hazardous waste can be disposed of, please refer to this website: https://www.epa.gov/hwpermitting/hazardous-waste-management-facilities-and-units
Q: Any guidance for body shops on storing waste prior to the handover to the disposal company?
A: For hazardous waste storage, there are specific regulatory requirements with which a body shop may have to comply as discussed above (as opposed to ‘guidance’). If body shops generate hazardous waste, these facilities should comply with the hazardous waste generator provisions to ensure safe management of hazardous waste before shipping the waste for disposal or recycling. More information can be found on our website at: https://www.epa.gov/hwgenerators
On our website we have available two older documents that still may be of assistance. One is the guide for vehicle maintenance shops on compliance with RCRA: https://www.epa.gov/sites/production/files/2015-01/documents/vehicle.pdf
Another is a guide for small businesses managing hazardous waste: https://www.epa.gov/sites/production/files/2014-12/documents/k01005.pdf
Also see EPA’s automotive compliance sector webpage for more environmental compliance information: https://www.epa.gov/regulatory-information-sector/automotive-sectors-naics-336-4231-8111
Featured image: An Environmental Protection Agency headquarters is shown. (krblokhin/iStock)