The most important decision facing any hazardous waste generator is selecting the method of disposal for their hazardous waste streams.
While price is most often the default determining factor, the more important issue to consider is current and future liability.
The Resource Conservation and Recovery Act (RCRA) is the legislation that provides the framework for the proper management of hazardous and non-hazardous waste disposal. It is the most comprehensive piece of environmental law that we have on the books today.
When the act was passed by the US Congress in 1976, it created a system for controlling hazardous waste from the time it is generated to its final disposal.
The legislation came into existence due to a series of catastrophic and life-threatening incidents in the 1960’s and 1970’s that drew the United States government into action. Among these flashpoint events were the Cuyahoga River Fire and the Love Canal, two separate but equally devastating disasters that gave birth and fuel to the modern environmental movement.
In response to growing environmental concerns, RCRA legislation was created and passed. One of the most important outcomes was the establishment of “cradle to grave” liability for hazardous waste generators.
This article will review how different disposal methods impact liability and give insight on how and when your “cradle to grave” liability ends.
“Cradle to Grave” Liability Defined
“From this authority, EPA established a comprehensive regulatory program to ensure that hazardous waste is managed safely from "cradle to grave" meaning from the time it is created, while it is transported, treated, and stored, and until it is disposed.” (Source: EPA)
“Cradle to Grave” responsibility is used to describe the fact that any person who generates a waste material, that is classified as a hazardous substance, is responsible for that waste from the time it is generated until pretty much the end of time.
The “Cradle to Grave” system is a provision within RCRA that focuses to a large degree on the management of hazardous waste. There is no time limit or expiration date that will release a generator from this long-term management responsibility, making the management of hazardous substances a “Long-Tail Liability”.
How Does “Cradle to Grave” Affect U.S.-Based Hazardous Waste Generators?
Most hazardous waste generators are aware that they have “cradle to grave” responsibilities, but many fail to realize their complete “cradle to grave” requirements for compliance with the RCRA. This lack of understanding is evidenced by the significant number of fines and penalties levied by government agencies each year on hazardous waste generators within the United States.
The bottom line…if you generate hazardous waste, you can and will be held responsible for its improper off-site transportation and disposal.
While there are companies that will indemnify you by agreement, Hazardous waste liability does not end and does not transfer when it leaves your facility.
Because of this tremendous responsibility, it’s important for generators to understand how different methods of disposal impact future liability.
Let’s look at a few different methods, landfill and recycling, and their potential impact on future liability.
Landfilling - The most common and least expensive method for getting rid of hazardous waste is landfilling. Landfills that accept hazardous wastes are regulated under EPA’s Treatment Storage Disposal Facility (TSDF) requirements and can only operate under a special permit.
Hazardous waste landfills are typically lined and have several other safeguards in place to prevent the hazardous waste from entering the environment. They also maintain liability insurance to cover the cost of an environmental cleanup, if there is release.
But, even with these safeguards, the ultimate liability for the hazardous waste remains with the generator. And if there are future problems that require cleanup that are not adequately covered by insurance, generators may be required financially assist with those efforts.
Recycling – Whenever feasible, the EPA encourages facilities that generate hazardous wastes to recycle their wastes. A hazardous secondary material is recycled if it is used or reused (e.g., as an ingredient in a process), reclaimed, or used in certain ways. This includes being used in a manner constituting disposal and burned for energy recovery.
Recycling is preferable because it reduces the use of virgin materials and keeps the wastes out of landfills. More importantly, proper recycling of hazardous waste can reduce your facility’s future liability.
It’s important to note that for some waste streams, the EPA recognizes that recycling is not always an option.
For more information on the difference, please review our previous article – “Recycling vs Landfill – What’s the Difference.”
Transporting Hazardous Waste Outside of the United States – Impact on “Cradle to Grave” Liability
For companies located in the Western United States, an attractive option is exporting hazardous waste streams through Temarry Recycling, who operates out of San Diego with a TSDF in Tecate, Mexico.
Because of its proximity to West Coast companies, Temarry’s state-of-the-art recycling facility and “closed-loop” recycling process provides the most sustainable method of disposal for spent industrial solvents.
But a significant question arises…how is my liability affected when transporting hazardous waste outside of the United States?
When transporting hazardous waste to Mexico, through Temarry Recycling, the waste generators liability for that waste ends at the US border. At the border, Temarry Recycling becomes the Principal Responsible Party in the U.S. and Recicladora Temarry de Mexico accepts generator liability in Mexico.
For waste streams legally transported to Mexico, the moment your shipment crosses the border, this is the “grave” in the “cradle to grave” process. All future liability from the waste stream is eliminated.
Why Does the Cradle to Grave Responsibility End at the Border When Exporting Hazardous Waste with Temarry?
For over 19 years, Temarry Recycling has had the legal authority, given to them by the US Environmental Protection Agency (EPA) and the Government of Mexico, to legally transport RCRA, Non-RCRA and non-hazardous waste to their facility in Tecate, B.C. Mexico.
The EPA issued an Acknowledgement of Consent (AOC) to Temarry that certifies to the waste generator that the EPA has done their due diligence to confirm with the government of Mexico that Recicladora Temarry has all necessary permits, is in good standing, and is authorized to receive listed imported waste. For the Generator, it is the U.S. EPA that they rely on to vet the receiving facility and confirm that they can do what they say they are going to do.
And to stay in compliance, Temarry Recycling must submit a new Notice of Intent (NOI) every year to the EPA to request that a new AOC be granted for the following year.
From the moment the waste crosses the border into Mexico, the waste generators liability ends.
At the border, Temarry Recycling becomes the Principal Responsible Party in the U.S. and Recicladora Temarry de Mexico accepts generator liability in Mexico.
Waste arrives at the facility the same day that it is imported. After acceptance, handling codes are applied in block 19 and signed as received in block 20 of the U.S. manifest. Generator copy of the manifest is returned directly to the generator within 30 days of receipt of the waste by Recicladora Temarry.
For companies located in the Western United States the typical alternative for disposing of industrial solvents is fuel blending at facilities in the Midwest and Eastern U.S. This represents thousands of transportation miles saved by routing those loads to Temarry.
Because sending those solvents requires shorter transportation times, this means less chance of accident, a smaller carbon footprint and a reduction in their company’s liability.
Recycling hazardous waste streams with Temarry Recycling has become what seems like an almost too good to be true option for hazardous waste generators located in the Western United States.
Because of our border proximity, we maintain tremendous advantages for generators including a higher level of sustainability, reduced liability and competitive pricing.
This means real savings for Western U.S. businesses, as well as controllable risk management and more profit to the bottom line.