Does Your Company Handle Hazardous Waste?

Posted by James Pray in December 2016 on 12/14/2016

Does Your Company Handle Hazardous Waste? (Download a PDF of this article)

2016 has seen an unprecedented number of Environmental Protection Agency (“EPA”) site inspections looking for violations of hazardous waste laws here in Iowa. The targeted businesses appear to be smaller companies that are already listed in the EPA’s database as hazardous waste generators or transporters. Most of these smaller businesses have likely never experienced a full inspection of their operation by an EPA inspector. If your business processes or manufactures any materials or chemicals, then it may be generating hazardous materials. Hazardous materials can be by-products of a process like painting or cleaning or leftover products that can no longer be used. The law that the EPA is enforcing is known as the Resource Conservation and Recovery Act (“RCRA” and pronounced “rick-ruh”). RCRA regulates both solid waste (Subtitle D) and hazardous waste (Subtitle C). The Iowa Department of Natural Resources (“IDNR”) shares jurisdiction with the EPA over solid waste issues, but the EPA is the sole agency overseeing hazardous waste enforcement.

Companies generally fall into one of three categories. Companies that generate less than 220 pounds of hazardous waste per month and store less than 2,200 pounds at any time are generally considered “Conditionally Exempt Small Quantity Generators.” These companies must still identify their waste, avoid storing hazardous waste in excess of the limit, and properly dispose of and manage the waste. The other two categories - Small Quantity Generators and Large Quantity Generators - generate more than these minimal amounts and are subject to increasingly rigorous regulatory requirements as the weight of the waste increases.

What is a hazardous waste? Subtitle C of RCRA only applies to hazardous wastes that are generated by any industrial, commercial, public or other non-residential operation.  The rules set forth several steps to assess whether a hazardous waste is involved. First, the waste must be a “solid waste” such as garbage or refuse, sludge from a wastewater treatment plant, water supply treatment plant or air pollution control facility, and other discarded material, resulting from industrial, commercial, mining and agricultural operations. However, not all solid waste is a hazardous waste and not all hazardous waste is what you might consider a solid. In the regulatory definitions that defy common sense, a solid waste includes wastes that are liquid, semi-solid or contain gaseous material. Second, the waste must contains a chemical substance that is on an EPA list of hazardous wastes. Usually the only way to know if a waste product is on the list is to conduct a “hazardous waste determination.” This may require testing the material in a laboratory. Failure to conduct this determination can be the basis for an enforcement action even if it turns out that the waste is harmless. I have actually had conversations with EPA enforcement officers as to whether a partially filled can of soda can be considered to be hazardous waste due to its extremely low pH.

Many RCRA inspectors are either retired EPA employees or independent contractors. These inspectors will present credentials when visiting a site. They are also required to inform the company being inspected whether the inspection is randomly selected or based on a complaint. It is not uncommon to receive a “Notice of Preliminary Findings” from the inspector at the conclusion of the site visit. This notice is not final, but it is a fairly reliable indication of potential enforcement actions. It is not uncommon for inspectors to find things such as spent lamps containing mercury that are improperly stored and labeled or hazardous waste containers that are not properly marked or closed. A used fluorescent light tube standing in the corner of a closet is enough to trigger an enforcement action. If your company is inspected and receives a Notice of Preliminary Findings, then you should consider retaining counsel for assistance. It is not uncommon for RCRA penalties to be fairly substantial and certainly higher than the penalties commonly issued by the IDNR.

The EPA is working hard to generate awareness among Iowa companies that the EPA is serious about hazardous waste compliance. If your company may be handling hazardous wastes and is not certain that it is in compliance then it should do everything it can to come into compliance before the EPA comes knocking at the door. If you are an Iowa company that does not have an employee dedicated to handling hazardous waste compliance, you should contact the Iowa Waste Reduction Center (“IWRC”) at the University of Northern Iowa for compliance assistance. The IWRC can provide training and assistance in making sure your Iowa company is in compliance.

If EPA does come knocking at your door, be sure to reach out to your BrownWinick attorney for assistance.

James L. Pray is a member of BrownWinick and the Chair of the Environmental Law practice group. Jim’s practice includes both consulting and litigation services to the business community with an emphasis on assisting with environmental, railroad, utility, due diligence and business workout concerns. You can reach Jim at (515) 242-2404 or