Missing Hazardous Waste Paper Work Can Be Costly

Federal hazardous waste regulations (RCRA) have long been referred to as management from "cradle to grave."  In order meet this management principle, the regulations require detailed paper work and reporting from both small and large businesses. 

Failure to maintain the proper paper work can result in significant penalties or even change your regulatory status which will have even greater implications.  Just in 2008, Ohio EPA Division of Hazardous Waste Management (DHWM) has taken 24 formal enforcement actions that included assessment of civil penalties.  Those penalties have ranged from $4,000 to $75,000.  Many of the actions were against small to medium sized businesses.

In addition, hazardous waste enforcement cases will often be reported in the newspaper, even in the small town local newspaper.  If you want to avoid the bad publicity and a costly fine, it pays to review your company's paper work practices. 

A recent EHS blog post provided a good example of the dangers of missing paperwork. 

But in the absence of any documentation that showed the facility never generated more than 2200 lbs of waste in a calendar month, the inspector assumed incorrectly that the facility generated all the wastes that were shipped out in August of 2001 in that month. [shipped out more than 2200 lbs in the month] The reality was that the wastes in the two shipments made in August had been accumulated over the past several months.

The fact the company did not maintain good records resulted in the inspector citing them for being a Large Quantity Generator (LQG) even though in reality the company was a Small Quantity Generator (SQG).  Without the proper records, the inspector's conclusion becomes difficult to refute.

Ohio EPA has identified the most frequently cited RCRA violations in Ohio.  Reviewing the following list of frequent  categories of violations is a good place to start in determining if your company is property managing hazardous waste. 

  • Waste Determination- The regulations require all waste to be evaluated.  This is often an area overlooked by businesses. Failing to evaluate just one barrel of waste can result in a citation. Ohio EPA developed a handy fact sheet that is worth reviewing to get yourself familiar with these requirements.
  • Annual Reports-  All LQG must submit a report by March 1st for the preceding year.  Review your files to makes sure you have submitted annual reports. 
  • Container Management- Must inspect your hazardous waste storage areas at least once a week and maintain a log documenting those inspections.  Ohio EPA has provided a hazardous waste storage inspection log sheet that can be used to maintain your records.
  • Emergency Equipment Inspections- SQG and LQG must maintain a log of inspections showing all emergency equipment (fire suppression, spill containment, alarms) were inspected as recommended by the manufacturer or supplier of the equipment.  Ohio EPA also has a emergency equipment inspection log sheet you can use to maintain these required records.
  • Used Oil Storage-  All containers use to store used oil must be properly labeled with a sign that says "used oil."  Using terms like "hazardous waste" or "waste oil" is not sufficient.
  • Large Quantity Tank Systems-  All LQG's that use tanks to store hazardous waste must inspect the tank once "each operating day."  A log of inspections must be maintained. According to an Ohio EPA fact sheet, this means each day the tank is in use.  Even if workers are not on-site seven days a week.

(photo from flickr: Ashe-Villian)

Paperwork Penalties Waived for Small Business...Maybe

On June 17, 2008 Governor Strickland signed H.B. 285 which requires agencies to waive fines and penalties for paperwork violations that are first time offenses committed by a small business.  I certainly agree that that this is welcome relief for the small business owners that must navigate a myriad of federal, state and local paperwork requirements.  However, be careful if you are a small business owner, the bill doesn't give a free pass for all paperwork violations.

First, you better make sure you are considered a small business.  You may think you are, but under the bill a series of federal government regulations really decides whether you are classified as a small business.  (Isn't it somewhat ironic that a bill trying to address paperwork requires you to consult a forty-four page table of industrial classifications to determine whether your business constitutes a small business)  Small business classifications are based upon the North American Industry Classification System (NAICS) and the cutoffs are either annual revenue or the number of employees

Second, was it really a paperwork violation?  The bill says a "paperwork violation" is the violation of a law that mandates the collection of information by a state agency.  Sounds simple enough, but as a lawyer I think this is a vague definition. 

CAUTION:  I doubt a violation of permit or needed authorization is going to be considered paperwork under this definition.  As an example, the most common violation Ohio EPA takes enforcement against is for failure to provide notice of demolition or construction activities for purposes of asbestos compliance.   In 2007, Ohio EPA imposed 13 fines against companies for failure to file the notice.  Better make sure you keep filing those notices whether you are the owner of the property or a primary contractor for the project.

Third, even if you get by the first two steps, if your paperwork violations are related to environmental compliance you may still be in hot water.  The bill allows Agency's to still impose fines if, among other exceptions, the following apply to your situation:

  • The violations is considered to present a direct danger to public health or safety....or presents "the risk of severe environmental harm", as determined by the head of the state agency
  • The violation is a failure to comply with a federal requirement for a program that has been delegated to a state agency for enforcement and the state is required to impose a fine
  • Also, a fine may be reinstated if you have subsequent violations

When I was at Ohio EPA all enforcement actions had to come across my desk prior for approval.  In my experience, it was uncommon to impose a fine for purely paperwork violations if a small businesses was at fault.  In the instances we did impose a fine, it certainly could fall within one of the exceptions discussed in this post.