Phillips Law Firm Blog

You are the president of Poly Painters, Inc., a polymer based metal coating facility. Your facility generates approximately two thousand 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 in writing and send it to him within thirty days. You are baffled; since when does EPA care if you have a waste minimization plan provided 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. § 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. §§ 13101, et seq.). In 42 U.S.C. § 13101(b), Congress stated again that the national policy of the United States is to prevent pollution or reduce pollution at the source whenever feasible.

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. However, no company wants to be the first reported case of an enforcement action for failure to have a waste minimization program. I recommend to my clients that they prepare a waste minimization program to comply with 42 U.S.C. §§ 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 could result in a net savings to your company.

You are the owner of Multi-Step Platers of Ohio, Inc. Your business has several plating lines where it processes materials. Three of the plating lines are in one building, and one of the plating lines is three miles away at another facility. Your company generates very little hazardous waste and what it does generate it accumulates at three different satellite accumulation areas. U.S. EPA defined satellite accumulation areas as locations where waste is initially generated and accumulated, often in small amounts, prior to consolidation at centralized accumulation areas (See 48 Fed. Reg. 118, January 3, 1983, and 49 Fed. Reg. 49568, December 20, 1984). These satellite accumulation areas allow your company to accumulate waste in containers at or near the point of generation where wastes initially are generated without a permit and without complying with the maximum storage time for hazardous wastes specified in OAC 3745-52-34. (See Legal Alert for December 1996 and April, 1997).

Your company has established three satellite accumulation areas. The first two satellite accumulation areas your company has established are from two different waste streams from the same production process. The employees place the wastes into two 55-gallon drums placed side-by-side. Each drum, as you see it, would constitute a separate satellite accumulation area. When a drum is full, it is dated, and shipped off as hazardous waste.

The third satellite accumulation area is at the company's main facility. However, it receives waste from the facility located three miles away in addition to the waste generated at the main plant. At the facility three miles away, your company generates ignitable waste in small batches. When a batch is generated, the waste is moved to your main facility. Since the waste generated three miles away is identical to the ignitable waste generated at the main facility, you combine it with the ignitable waste generated on an occasional basis at the main facility. You have constructed a locked area in a separate building approximately 20 feet away from the point of generation at the main facility for storing this ignitable waste. Previously, you had located this satellite accumulation area inside the main facility, but a forklift operator pierced the accumulation drum, causing a fire and injuring a worker. In your opinion, moving the satellite accumulation area for this ignitable waste outside is much safer than the previous location.

To remain satellite accumulation areas, U.S. EPA and the State of Ohio set the maximum accumulation limit for hazardous waste at any satellite accumulation area to be 55 gallons for hazardous wastes, the size of a common industry container. Acutely hazardous wastes are limited to one quart, but fortunately your company uses no acutely hazardous wastes. So far, you have had no problem shipping your wastes each time a 55-gallon drum is filled.

Your satellite accumulation areas are, in your opinion, "safe and legal." Yesterday, however, an Ohio EPA inspector showed up to inspect your facility and informed you otherwise. After inspecting your satellite accumulation areas, the inspector advised you that you are in violation of the hazardous waste laws and you must make immediate changes or face enforcement action. You are shocked and ask for an explanation.

The inspector explains that for an area to be considered a satellite accumulation area for hazardous wastes, and thus not subject to the more stringent requirements found in the regulations, the satellite accumulation area must be on-site, at or near the point of generation and under the control of the operator of the process generating the hazardous waste. The inspector explains that with respect to the term, "under the control of the operator," the word "operator" in this context does not refer to the definition in OAC Rule 3745-50-10(78). The definition in OAC Rule 3745-50-10 refers to the person responsible for the overall operation of a facility. The term "operator" used in OAC Rule 3745-52-34(c) with respect to a satellite accumulation area refers to the operator of the process generating the waste, i.e., the actual employee operating the production process generating the waste or the immediate supervisor.

The inspector further explains that he examines several factors when looking at the acceptability of a satellite accumulation area. Safety is the factor given the highest priority in making satellite accumulation area determinations. Normally, a satellite accumulation area must be at the point of production. However, if the waste poses a storage hazard or a danger to workers when stored directly next to the process area, then a satellite accumulation area removed from the point of production may be acceptable.

Other factors are also considered when evaluating the point of production requirement. A container at or near the point of generation could force the generator to violate OSHA requirements, insurance requirements or might otherwise create a safety hazard to employees or neighbors. In such cases, allowing a satellite accumulation area away from the immediate point of production is warranted. However, if accumulating the waste farther away creates a safety problem, or if the container is out of visual range from the operator or is not secured, the issues of how would the generator prevent an accident or mismanagement of the waste must be addressed.

The physical features of the satellite accumulation area must also be considered. If the satellite accumulation area at the point of generation is less protective than an area farther away, an area farther away might be acceptable. If the area farther away has additional safety features like a secondary containment system, closer to emergency equipment or spill control equipment, a sealed floor, or out of employee traffic, it may be the preferable satellite accumulation area.

Management controls of the container to be used by the generator is also an important factor to be considered. If a 55-gallon drum is outside visual range of the operator, access to the container must be limited by some means, such as placing it in a locked enclosure or securing it with a locked bung lid. Administrative controls over the drum alone, such as a sign or a written administrative procedure, are not considered adequate. Although not required by the regulations, routine documented inspections may alleviate concerns that leaks or spills will not be detected in a reasonable time period. If waste is added frequently to the drum, this again may alleviate concerns that leaks or spills will not be detected. Although not required in OAC Rule 3745-52-34(C) for satellite accumulation areas, training employees who handle hazardous wastes may alleviate concerns that inadequately trained employees may cause an accident.

The inspector also explains that the farther away from the point of generation, the less acceptable the area will be as a satellite accumulation area. If the area is too far from the production process that generated the waste, the practicality of requiring the generator to operate the area as a 90-day (or 180-day) accumulation area will be evaluated. If the operator has a ninety day accumulation area just feet away from the satellite accumulation area, it may be more practical to require the operator to forego designating a satellite accumulation area.

The inspector also explains that previous compliance problems with the generator will be considered. A facility operator who has been out of compliance will receive less flexibility from the regulators with respect to satellite accumulation areas than will an operator who has been cooperative and compliant in the past.

Using the above guidelines, the inspector goes on to inform you that certain changes must be made to your satellite accumulation areas. With respect to your side-by-side satellite accumulation areas, the inspector informs you that the 55 gallon limit for a satellite accumulation area applies to the area itself and not to each individual waste stream accumulated in the area. Two waste streams may be stored in one satellite accumulation area in different containers as long as the drums are dated when the total quantity of waste exceeds 55 gallons and the waste in excess of 55 gallons is removed within three days of that date. When the inspector informs you of this, you propose establishing two satellite accumulation areas by moving one of the drums a couple of feet away from the other. The inspector informs you that since the only reason you are separating the drums is to avoid the 90-day accumulation area standards, and since the waste streams were generated from the same point of generation, this would not be acceptable. If wastes are generated at two distinct points in a process line, a company may be able to operate two satellite areas along one process line, but where the wastes are generated at the same point, and the wastes are then physically separated to create multiple satellite accumulation areas, the sites are treated as a single satellite accumulation area. However, since no specific distance is defined in the regulations, the distance between the point where the wastes are generated and the location of the satellite accumulation area will be left to the inspector's best professional judgment as to whether there are two distinct points of generation. Ultimately, you agree that when the cumulative total of the wastes in the two drums reaches 55 gallons, under OAC 3745-52-34(C)(2), your company will remove the excess over 55 gallons from the satellite accumulation area within three days. As a practical matter, this means that you will date and ship whichever drum first reaches the point of being half full.

As to your satellite accumulation area that receives wastes shipped to it from your facility three miles away, the inspector informs you that this does not meet the requirements of being "at or near the point of generation" or "under the control of the operator" as required by the regulations. A satellite accumulation area must be on contiguous property to the generator to meet the definition of "on-site" in OAC Rule 3745-50-10. Therefore, a satellite accumulation area must either be located at the point of generation, or the area where the waste is currently being stored must be operated as a 90-day (or 180-day) accumulation area. You agree to locate the satellite accumulation area at the point of generation.

Finally, with respect to the wastes generated at the main facility, but stored outside in a separate building, the inspector is willing to leave this area as a satellite accumulation area provided that a daily inspection is conducted of the container and recorded. The inspector explains that this will alleviate the agency's concern that a spill or problem with the container would not be addressed promptly. Since the facility had previously stored the drum directly at the point of generation and the forklift had run into it, causing a fire and injuring an employee, the inspector agreed that the accumulation area could be located slightly away from the point of production, but still under the control of the operator provided a recorded daily inspection occurs. After you agreed to make all of the changes recommended by the inspector, the inspector advises you that he considers your modified satellite accumulation areas "safe and legal."

The above information was derived from "Guidance on the Location of Satellite Accumulation Areas - DHWM-008," published by Ohio EPA in November of 1994. I always advise clients that satellite accumulation areas are a way of saving money, but that the agency can cause a lot of trouble for companies due to the wide degree of latitude given to the inspectors to declare a satellite inspection area inadequate. I encourage people to work with their attorneys, the agency, and the inspectors to determine what is and is not acceptable as a satellite inspection area. In the above examples, only minor modifications had to be made to accommodate the agency's regulatory intent with respect to all but one of the waste streams being generated. As to the off-site waste stream which was being combined with the waste stream at the main facility, it may seem logical, and maybe even safer, to combine identical waste streams and operate only one satellite accumulation area, but it's not legal.

You are starting your own business, Tinters, Inc. Your new business will specialize in tinting various metals, plastics and ceramics for other industries. Your process involves the application of various tints to achieve custom color combinations. You have secured several contracts for your services. With these contracts as collateral, you approach your friendly neighborhood banker for financing. After reviewing your business plan and collateral, your banker requests information on how you are handling your hazardous wastes. You ask your banker how this could affect your loan. Your banker politely answers that because of problems with the way companies have handled hazardous wastes in the past, the bank has had several companies default on their loans due to EPA enforcement activities for improper handling or disposal of hazardous wastes. You agree that before you open your doors for business, you will have a qualified attorney and environmental consultant analyze the wastes being generated by your business, and you will implement an appropriate hazardous waste management program.

Your environmental consultant and attorney inform you that under the EPA regulations, the first question that you must answer is whether you are handling any "solid waste" as defined by the Resource Conservation and Recovery Act (RCRA). Under RCRA, "Solid waste" is:

. . . any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include [1] solid or dissolved material in domestic sewage, or [2] solid or dissolved materials in irrigation return flows or [3] industrial discharges which are point sources subject to permits under section 1342 of title 33, or [4] source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) (42 U.S.C. 2011 et seq.).

42 U.S.C. § 6903(27).

Your business generates material that will be discarded; therefore, your business is generating a solid waste under the law. Since your business generates solid wastes, your business must now determine if any of the solid waste being generated is a hazardous waste. RCRA defines a "hazardous waste" as:

[A] solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may--
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.

42 U.S.C. § 6903(5). Using this definition, EPA has promulgated detailed regulations listing the chemicals and waste characteristics that are to be treated as hazardous waste. The chemicals that must be treated as hazardous waste are found at 40 C.F.R. § 261.30-33, and the "characteristics" that result in waste being classified as hazardous are found at 40 C.F.R. §§ 261.3 and 261.20-24. These characteristics are: ignitability, corrosivity, reactivity, and toxicity.

You check the list of specific chemicals to determine if you are generating a hazardous waste, and much to your disappointment, you find that a chemical in one of your tinting solutions is a listed hazardous waste. Now that you have determined that you will be generating a hazardous waste, the next question that you must answer is what program do you need for handling the hazardous waste that you generate?

The very first program requirement that you must fulfill after determining that your business is a generator of hazardous wastes is to obtain an EPA hazardous waste identification number. 40 C.F.R. § 262.12. This number tracks the waste from its generation to its disposal, in other words, from "cradle to grave." 40 C.F.R. § 262.12(c). EPA assigns identification numbers after a proposed generator submits EPA Form 8700-12. This is the same form used to notify EPA that one is engaging in hazardous waste management. 42 U.S.C. § 6930(a).

EPA developed regulations that provide cradle to grave control of hazardous wastes "to protect human health and the environment," as mandated by Congress. 42 U.S.C. § 6922(a). These cradle to grave regulations include record keeping on the quantity and disposition of hazardous wastes, 42 U.S.C. § 6922(a)(1); labeling and container standards for the storage, transport, or disposal of hazardous wastes, 42 U.S.C. § 6922(a)(2)-(a)(3); furnishing of waste characterization information to transporters and treatment, storage and disposal facilities (TSDFs), 42 U.S.C. § 6922(a)(4); manifesting requirements (the paperwork required to be kept whenever a hazardous waste is shipped, 42 U.S.C. § 6922(a)(5); and biennial submission of data on waste quantities, dispositions, and waste minimization efforts, 42 U.S.C. § 6922(a)(6). In addition, since 1984, 42 U.S.C. § 6922(b) requires each generator to certify, on each shipment of hazardous waste, (1) that the generator has a program in place to minimize waste generation as much as economically practicable and (2) that the proposed method of treatment, storage, or disposal of the waste "minimizes the present and future threat to human health and the environment." (See Legal Alert, "Waste Minimization Plans -- A Regulatory Requirement" in the November 1996 issue of Metal Finishing Magazine.).

Your environmental consultant recommends that you ship your hazardous waste off-site for disposal. Therefore, you must comply with the manifest system requirements found at 40 C.F.R. § 262.20-.23. Most importantly, you must designate an authorized facility on the manifest to accept the waste for treatment, storage, or disposal. 40 C.F.R. § 262.20(b). Generally, only a facility that has a RCRA TSDF permit may accept hazardous wastes generated off-site. 40 C.F.R. § 260.10. You must sign the manifest, retain a copy, and give the manifest to the transporter. 40 C.F.R. § 262.23. Each transporter or intermediate storage facility along the way signs the manifest, thereby creating a paper trail of your hazardous waste's cradle to grave history. You must also properly package, label, and mark the waste according to Department of Transportation requirements. 40 C.F.R. § 262.30-.33. The Department of Transportation's regulations regarding the shipment of hazardous wastes are found at 49 C.F.R. parts 172, 173, 178, and 179.

Your environmental consultant also informs you that generally, provided your hazardous wastes are stored in containers or tanks that meet RCRA standards, you may accumulate and store your hazardous wastes on site for up to 90 days before transporting. 40 C.F.R. § 262.34(a). As with practically every environmental law, you must comply with certain reporting and record keeping requirements. 40 C.F.R. § 260.40-.43.

As you dig deeper into the regulations, you learn that EPA has imposed relaxed requirements on facilities that generate and accumulate only small quantities of hazardous wastes. Under the current regulations, any hazardous waste generator who generates more than one hundred, but less than one thousand kilograms per month of hazardous waste is designated a "small quantity generator." 40 C.F.R. §260.10. After reading the requirements for small quantity generators, you realize that virtually all the part 262 standards applicable to generators of large quantities of hazardous wastes are applicable to small quantity generators. See 51 Fed. Reg. 10146 (Mar. 24, 1986). Only certain reporting and record keeping requirements for small quantity generators have been relaxed. 40 C.F.R. § 262.44. The only other benefit to being a small quantity generator is being allowed to accumulate hazardous wastes for up to 180, rather than 90 days. 40 C.F.R. § 262.34(d).

After evaluating your production program, implementing certain recycling programs, and agreeing on a cost effective hazardous waste minimization program, you and your environmental consultant agree that your new business will generate less than one hundred kilograms of hazardous waste each month. As a generator of less than one hundred kilograms of hazardous waste per month, your facility will be designated a "conditionally exempt small quantity generator." Conditionally exempt small quantity generators managing less than one hundred kilograms per month of hazardous waste are exempt from RCRA's cradle to grave regulations 40 C.F.R. § 261.5(b). However, just because your business is a conditionally exempt small quantity generator does not mean that you can throw your waste down the drain or out the back door. The conditionally exempt small quantity generator must still make the initial determination whether the waste is hazardous (40 C.F.R. § 261.5(g)(1)) and must ensure that disposal will be either properly handled on site or sent to an off-site facility authorized under state law to accept the waste. 40 C.F.R. § 261.5(g)(2).

Your environmental consultant and attorney warn you that a conditionally exempt small-quantity generator may unknowingly become subject to the more stringent regulations for small-quantity generators if it does not monitor its waste inventory carefully. When the conditionally exempt small-quantity generator accumulates over 1,000 kilograms of hazardous waste on site, or if it accumulates hazardous waste on site for more than 180 days, it automatically, by operation of law, loses its conditionally exempt small quantity generator status. As a practical matter, your environmental consultant advises you to monitor your waste production and inventory very closely if you want to remain a conditionally exempt small quantity generator.

You present your hazardous waste plan to your banker who is impressed that you will be able to achieve the conditionally exempt small quantity generator status. Your loan is approved, and by following the advice of your environmental consultant and attorney, your hazardous waste program is one less thing that you have to worry about.

This article does not cover every detail of an effective hazardous waste program. Where a company can achieve generating less than one hundred kilograms of hazardous waste per month, the company need not worry about many of the hazardous waste laws. I recommend that all of my clients minimize the generation of hazardous waste. A few of the more fortunate ones have been able to achieve conditionally exempt small quantity generator status. Generally, being a conditionally exempt small quantity generator will increase your profitability by minimizing your hazardous waste disposal costs through waste minimization, and by eliminating most of the man hours needed for regulatory compliance.

You are the plant manager of Widgets, Inc. Your company produces painted widgets in a patented two step process. The first step produces the widget and the second step paints it. Producing the widget generates a dry solid waste which looks a lot like sand. This dry solid waste is collected in dumpsters and stored on site pending disposal as non-hazardous waste. Your paint facility uses a degreasing solvent consisting mainly of toluene prior to painting. The spent solvent is collected in an on-site underground storage tank and then shipped off site as an F005 hazardous waste for recycling. You have had analytical tests performed on the waste streams and you are confident that the waste is being handled properly.

Today, as you are walking toward the plant from your car, you observe a tractor trailer loading the spent solvent to take away for recycling. You think little about it until your pager goes off and an employee informs you that a loose coupling at the loading dock caused several gallons of the spent solvent to leak onto the concrete floor. The employee informs you that several buckets of the dry solid waste were taken out of a dumpster and were poured on the spill to absorb the spilled hazardous waste. The employee informs you that he and another employee shoveled the material. that absorbed the spill back into the dumpsters which are filled with the sand-like material.

Your first reaction is that you are thankful that no one was hurt. You go to the loading dock to investigate the situation. Your environmental manager is already there and together you look at the material shoveled into the dumpster which absorbed the solvent spill. Your environmental manager quietly takes you aside and indicates that you could have a problem. He believes that by shoveling the mixture of solid waste and hazardous waste into the dumpster, your employees may have caused the entire dumpster of solid waste to become regulated as a hazardous waste, thus requiring disposal as a hazardous waste. You realize that if your company is required to dispose of all the solid waste in the two dumpsters as hazardous waste, your cleanup costs for this single incident will be enormous. You contact your company's environmental attorney and ask him if the solid waste contaminated with the hazardous waste must be handled and disposed of as a hazardous waste. Your environmental attorney researches the question and informs you as follows.

To become subject to RCRA's comprehensive regulatory system, a material must be a hazardous waste, which RCRA defines, in part, as a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5) (1976).

In determining what would be a hazardous waste and what would not be a hazardous waste, EPA relied almost exclusively on the dangers that such wastes pose. 45 Fed. Reg. 33,121 (40 C.F.R. §§ 261.10 and 261.11). EPA compiled a list of toxic constituents as a starting point and required that a waste be listed as hazardous if it (1) exhibits one of the four characteristics of hazardous waste identified in Subpart C of the regulations ("hazardous characteristics"), (2) meets certain toxicity criteria, or (3) contains any of the toxic constituents listed in Appendix VIII of 40 C. F. R. Part 261, unless EPA determines that the waste is not capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed. (40 C.F.R. § 261.11(a)(1)-(3)).

A waste under the third criteria above is a listed hazardous waste. A listed hazardous has specifically been designated by EPA in the regulations as hazardous. Often times, testing of the waste is not required since the waste is, by definition, a hazardous waste. The listed hazardous wastes are grouped into certain categories. For example, the spent solvents are "F" listed wastes. The waste being handled in this example was an F005 listed waste due to its toluene content. EPA takes the position that once wastes are listed as hazardous they are presumed to remain hazardous forever, even if mixed with other non-hazardous substances. EPA's rationale for this rule is to prevent industry from using the "Dilution is the solution to pollution" philosophy that occurred within certain industries prior to the promulgation of the hazardous waste regulations. EPA specifically stated its intent to continue to classify mixtures of hazardous and non-hazardous wastes as hazardous wastes, regardless of the ratio of hazardous to non-hazardous material, in 45 Fed. Reg. 33095-96 (1980); and the courts have upheld this determination. Chemical Waste Management, Inc. v. U.S. EPA, 869 F.2d 1526, 1538-40, (D.C. Cir. 1989).

Holding that a mixture of a non-hazardous waste and a hazardous waste is a hazardous waste, regardless of the quantity of hazardous waste in the mixture is known as EPA's so called "mixture rule." It was originally adopted in 1980 as part of EPA's first regulation defining hazardous wastes. In Shell Oil Co. v. Environmental Protection Agency, 950 F.2d 741, (D.C. Cir. 1991, as amended 1992), the rule was struck down due to a problem with how the rule was originally enacted, and then immediately reenacted by EPA on March 3, 1992. The new mixture rule, which for purposes of its effect on the regulated community today is identical to the old mixture rule was published in 57 Fed. Reg. 7628 (Mar. 3, 1992), and continues to have the same inequities and harsh effects on the regulated community as the original rule.

In this case, when the spent solvent, an F005 hazardous waste, spilled at the loading dock, the employees used the sand-like material, a non-hazardous waste, to clean it up. The effect of the spill was to convert the non-hazardous waste used to perform the clean up into a hazardous waste under EPA's mixture rule. The effect of shoveling the material into the dumpster converted all of the non-hazardous waste in the dumpster into hazardous waste. If the dumpster were taken to the landfill, arguably, everything in the landfill would be a hazardous waste since it is mixed with a hazardous waste. And your company could be liable for the clean up and disposal of everything in the landfill as a hazardous waste if EPA chose to take the mixture rule to its extreme. Although this may seem ridiculous, there are examples where companies have excavated and hauled waste from landfills to hazardous waste disposal sites because of the mixture rule in examples no more serious than this one. This result is neither logical, nor equitable, nor does it protect human health or the environment. However, until EPA comes up with a better way of preventing the less scrupulous people in industry from diluting hazardous wastes to avoid disposing of hazardous wastes properly, industry is stuck with the mixture rule.

My advice to clients is to be aware of the mixture rule. Never put anything which contains a hazardous waste or could even arguably contain a hazardous waste into a dumpster destined for a landfill. Make sure that your employees are properly trained in cleanup procedures for hazardous waste spills and make certain that your employees understand that no chemical spill is disposed of until the environmental manager or your outside consultant or environmental attorney has determined if the material should be treated as a hazardous waste. If you are faced with a situation that involves a spill, I recommend treating the material initially as a hazardous waste, isolated from all other wastes. If it is determined later that the material is not hazardous, you have lost nothing, but if you treat it as a non-hazardous waste and later find out you were wrong, you could find yourself paying to dispose of large amounts of harmless waste as hazardous waste, or you could even find that you are required to clean up a landfill.

After years of saving your hard earned cash, you finally achieved one of the great American dreams; you bought your own business. With your experience in the metal finishing industry, you financed and purchased a business called Platers and Coaters. Platers and Coaters has been owned and operated as a sole proprietorship by the same person for 15 years at the same location. The financial data on the company looks good. The previous owner is able to make a fantastic profit while undercutting his competitors' prices substantially. The previous owner told you, "If you know how to work the business, you can make a lot of money."

After the purchase, the previous owner agrees to teach you how to run the business by working with you for a few weeks. During this time, you notice that the previous owner dumps what you suspect to be hazardous waste out the back door into a ditch. You ask the previous owner if this is legal. His reply is, "You want to make money, don't you?" You immediately contact an environmental consultant to determine if what the previous owner was doing was legal. Unfortunately for your cash flow, the environmental consultant informs you that you must cease these illegal disposal practices. You immediately contract with a waste disposal company to dispose of your hazardous waste. The previous owner learns of your decision to handle your waste properly and informs you that by doing so you will never make a profit unless you substantially raise your prices, which will drive away business.

The previous owner is right, given what you paid for the business and the cost of waste disposal, you can barely make the payments on the purchase of the business and the waste disposal with the business that you keep after raising your prices. Your analysis of the business was based on a net profit which did not include waste disposal, mainly because the previous owner neglected to mention that his waste disposal practices were illegal.

In addition to disposing of your hazardous wastes legally, your environmental consultant recommends a soil and groundwater analysis to determine if any of the previous owner's activities have affected the property you bought as part of the business. After installing a single groundwater well, you learn that the soil and groundwater are severely polluted, and will costs up to two million dollars to cleanup. You now realize that your great American dream has become a great American nightmare. Faced with certain bankruptcy, you approach the previous owner and ask him to take back the business. The previous owner refuses and states that you bought the business and property "as is" without any warranty.

Distraught, you seek the assistance of an attorney who practices environmental law. You explain to the attorney that you really do not care if the property gets cleaned up provided the attorney can force the previous owner to pay for your losses and take back the business. Your attorney explains that while that may seem like good logic, and you may not think you have any interest in getting the property cleaned up, this in fact should be your biggest worry. The previous owner operated the facility for 15 years, which caused significant pollution to the soils and the groundwater. You have owned and operated the facility for less than one year. Under the Superfund laws, since you are the owner of a facility from which a release of a hazardous substance has occurred, you are jointly and severally liable for the cleanup even though the waste was deposited by the previous owner. Since the previous owner is now an elderly man, if he were to die, and his estate were to be settled prior to the property being cleaned up, you could be forced to pay for the entire cleanup. Therefore, your attorney advises that you do something quickly to force the previous owner to pay for the cleanup while he is still alive and still has the money from your purchase of the business to pay for the cleanup.

Your attorney advises you that your best approach is to proceed with a citizens suit against the previous owner pursuant to the Resource Conservation and Recovery Act (RCRA) under 42 U.S.C. § 6972 (a)(1)(b). You cringe at the thought of a citizens suit action and ask if these are the same types of actions pursued by overzealous environmental groups for technical violations of the law just to generate fees for lawyers. Your attorney explains that these citizens suit laws do get abused sometimes, but occasionally, someone like yourself needs help with enforcing the law against someone, and the only economical way to do it is to pursue a citizens suit against the wrong-doer.

You ask your attorney how a citizens suit works, and he explains. RCRA § 7002(a)(1)(B), authorizes suit against any person including any past or present generator of hazardous waste who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. Essentially, as your attorney explains, congress intended the citizens suit provision of RCRA to be analogous to the common law tort of public nuisance.

To be entitled to relief, your attorney explains that you must be able to prove (1) the existence of "discarded material," hazardous waste in this case, ; (2) that the previous owner contributed to the disposal of the waste; and (3) that the situation may present an eventual, significant risk to public health or the environment.

With respect to the requirement that the situation may present an eventual, significant risk to public health or the environment, your attorney explains that the courts have interpreted this requirement to mean a threatened or potential harm and does not require proof of actual harm. When one is endangered, harm is threatened; no actual injury need ever occur. Furthermore, a finding of "imminence" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present. Finally, the word "substantial" does not require quantification of the risk if there is some cause for concern that someone may be exposed to risk. Since your facility has severely contaminated groundwater, your attorney explains that you should have no problem meeting this requirement, especially after you inform him that here are drinking water wells in the area that may already be impacted.

You tell your attorney that as a result of paying hazardous waste disposal fees, you are financially impaired and cannot afford to finance a major lawsuit. Your attorney smiles sheepishly and states that the beauty of forcing someone to do a cleanup under the RCRA citizens suit provision is that they have to pay your legal fees. Therefore, you risk very little in allowing the attorney to pursue the case for you.

You ask your attorney what you are likely to get if you win your case. Your attorney informs you that, as is generally the case in citizen enforcement lawsuits under antipollution laws, RCRA authorizes awards of litigation costs, including attorneys fees and expert witness fees, to the substantially prevailing party. The court is also empowered to issue orders against anyone who has illegally disposed of hazardous waste to take such other action as may be necessary o abate the imminent hazard created thereby. Therefore, since your attorney considers your case a sure winner, he is willing to be somewhat forgiving on the requiring you to pay your legal fees up front, since he will recoup all of the legal fees reasonably necessary in pursuing your claim from the previous owner at the end of the litigation.

With respect to your other damages, your attorney explains that he will add claims for violations of state environmental laws, as well as claims for fraud , nuisance, trespass, negligence, and whatever else he can thick of prior to filing the complaint to try and recoup your losses. However, even if you lose on these claims, at least you will be getting the real estate cleaned up by the person who caused the problem, and by filing the lawsuit now, you can be assured that the previous owner will be able to pay for the cleanup, instead of you.

My advice to anyone considering buying an ongoing business is to have adequate legal and environmental representation prior to the purchase. Despite the best of advice, however, even the most careful business person can face substantial liabilities due to past conduct, human error, bad luck, and the acts and omissions of others, including previous owners. In such situations, it is only natural to seek to shift, share, and otherwise minimize those liabilities, ideally while someone else is still capable of paying. Not only does bringing such suits early ensure that you are not foreclosed by the statute of limitations which could forever bar any recover, it also ensures that the facts are still fresh in the minds of witnesses, and it ensures that your conduct can be distinguished from that of prior owners. RCRA's citizens suit is a good way for businesses facing substantial cleanup cost to shift not only the cost of the cleanup to the responsible party, but also to shift the cost of the litigation to get the cleanup performed to the other party. While awarding attorneys fees as part of an environmental citizens suit makes most business people shudder, don't forget that the previous owner in this case made his fortune by violating the hazardous waste disposal laws, thus allowing him to set his prices below the competition which drove his competitors who tried to comply with the law, such as yourself, out of business.