January 28, 2013 In 1976 in response to the mismanagement of hazardous waste, including widespread improper disposal, the U.S. Congress enacted the Resource Conservation and Recovery Act (“RCRA”). Congress directed the U.S. Environmental Protection Agency (“EPA”) to create a regulatory framework to ensure that hazardous wastes were properly managed from “cradle to grave.” States, which demonstrated that they could manage and had the capacity to run the RCRA regulatory program, could be authorized to do so in lieu of the federal government.
What is the history of the hazardous waste program in Minnesota?
In Minnesota, federal, state and local authorities have all been involved in the regulation of hazardous wastes.
In the 1980s Minnesota was granted the authority to manage the RCRA program by the EPA. The Legislature provided the Minnesota Pollution Control Agency (“MPCA”) with the authority under state law to write rules consistent with the federal RCRA program and to issue permits to facilities to store, treat and dispose of hazardous waste. Statutes related to MPCA enforcement authority were revised, consistent with RCRA, to provide for the collection of civil penalties of up to $25,000 per day of violation related to the handling of hazardous waste. By comparison, civil penalties for other types of environmental violations in Minnesota are capped at $10,000 per day of violation.
The Legislature took the additional step of authorizing seven Twin Cities metropolitan area counties to adopt hazardous waste ordinances and regulate hazardous waste generators and facilities within their separate jurisdictions. EPA monitors Minnesota’s program by annually auditing files and conducting a handful of random inspections.
In the 1980s MPCA took seriously its obligations to regulate hazardous waste. For a time, a cadre of 15 MPCA staff was dedicated to conducting inspections across the state. When noncompliance was detected, MPCA often brought enforcement actions. Another group of 10 MPCA staff were involved with the permitting of over 40 facilities in the State that accepted hazardous waste for treatment, storage or disposal. A portion of Minnesota’s hazardous waste was shipped to other facilities in other states.
When concerns about illegal waste handling were raised by the Minnesota Attorney General’s Office in the late 1980s, the Legislature toughened criminal sanctions for environmental violations including felony level violations for unpermitted disposal of hazardous waste and a related knowing endangerment charge. https://www.revisor.mn.gov/statutes/?id=609.671
What types of businesses are regulated?
Thousands of Minnesota businesses – including metal finishing or electroplating operations, manufacturers, auto repair or painting shops, printing businesses, dry cleaners, even dentists offices that generate small amounts of silver waste – are classified as hazardous waste generators. http://www.pca.state.mn.us/index.php?option=com_k2&Itemid=395&id=486&layout=item&view=item. Over time, other materials such as lead based paint waste from sandblasting operations, fluorescent tubes, shop towels, mercury switches, were all determined to be subject to hazardous waste regulation. Businesses that generated these materials also needed to comply with applicable rules and ordinances.
Why all of this concern for hazardous wastes?
In the 1980s the federal and state governments had embarked on the expensive and complicated task of cleaning up hazardous waste dumpsites under the Superfund law. Mishandling of hazardous wastes – wastes that are toxic, corrosive, ignitable or reactive – posed a serious threat to public health and the environment. Policymakers decided that creating a regulatory framework designed to prevent these problems from recurring would safeguard the public.
In the 1980s Minnesota businesses that generated hazardous waste were frequently subject to compliance inspections. Significant resources and staff were dedicated to hazardous waste compliance. Companies that failed to comply faced enforcement actions. Individuals and companies that knowingly violated the hazardous waste standards by dumping hazardous wastes or committing other related violations occasionally faced criminal sanctions. More serious cases were referred to the EPA or the U.S. Attorney’s Office for civil enforcement or criminal prosecution.
What is the current state of hazardous waste generation in Minnesota?
Most Minnesota companies that generate hazardous wastes have obtained required licenses or permits and are managing the wastes properly by sending their wastes off site to permitted facilities where the materials can be managed properly. A few companies have slipped through the cracks and are not in compliance. Over time, some generators have reduced the volume of wastes they generate. Many companies have found new products that do not contain hazardous substances. As a result of these efforts, waste generation statewide may have been reduced to some extent.
If most hazardous waste generators have been identified, does that mean hazardous wastes are being properly managed?
The first step for a business is to determine if it is subject to RCRA and its state equivalent. Once a company generates wastes, then it must comply with a comprehensive set of regulations. Hazardous wastes must be stored properly at the place of generation. Employees must be trained. Contingency and emergency plans must be prepared and updated. Wastes can be held on site but after accumulation for a period they must be sent off-site to a permitted facility. Shipments may be made only by permitted transporters, carry a manifest that tracks the waste, and be sent to a permitted treatment, storage and disposal facility. These requirements are relaxed for companies generating smaller amounts of waste.
The bottom line: Since hazardous wastes handlers must comply with many requirements, it is easy to slip up and fall out of compliance.
The MPCA reports on its website’s “Dashboard: Environment and Performance Measures,” that Minnesota has made what it characterizes as “Good Progress” on its overall hazardous waste metrics. Specifically, according to MPCA: “Since 2003 the number of generators has dropped by half, and there has been a corresponding drop in amount of waste.” See http://www.pca.state.mn.us/index.php/about-mpca/mpca-overview/agency-strategy/dashboard-environment-and-performance-measures.html. However, MPCA’s report may be overly optimistic. It appears that the “progress” MPCA reports, is actually the result in a change in state laws in 2002 that permitted small quantity generators to skip sending manifests that track hazardous waste shipments to MPCA. In other words, hazardous wastes still are being generated in significant quantities by Minnesota businesses large and small. However, MPCA no longer comprehensively tracks all waste shipments. Interestingly, tracking these shipments from the “cradle to the grave” was once a cornerstone of the RCRA program.
What is the current state of hazardous waste enforcement in Minnesota?
Under the RCRA delegated program, MPCA is charged with hazardous waste enforcement. MPCA conducts inspections to determine the compliance status of hazardous waste generators. MPCA’s staff dedicated to conducting inspections has been reduced significantly since the mid-1980s when 15 full time equivalent (“FTE”) staff were committed to these efforts.
Today, over 25 years after Minnesota was initially authorized to administer the RCRA program, only five FTE staff members are dedicated to conducting hazardous waste inspections statewide. Two of the five are based in MPCA’s Detroit Lakes, Minnesota Regional Office. MPCA relies heavily on the county inspectors in the Twin Cities metropolitan area to monitor Minnesota businesses compliance with their hazardous waste ordinances.
Data is not available as to the number of hazardous waste inspections that have been conducted. The decline in RCRA dedicated staff has most likely has resulted in fewer inspections. Given the sharply reduced staffing levels and the apparent reduction in interest by State authorities, Minnesota businesses, especially companies in outstate areas, may be subject to infrequent inspection. In many cases, there may no longer be inspections. As a result, there will be no check on compliance status. Essentially, many hazardous waste generators have become self-regulating.
In response to a recent Minnesota Data Practices Act request, MPCA recently disclosed data as to hazardous waste enforcement actions taken in a seven-year period from 2006 to 2012. A review of the MPCA’s data reveals that formal hazardous waste enforcement actions (issuance of an Administrative Penalty Order (“APO”) or negotiation of a Stipulation Agreement) have declined steadily from a total of 40 in 2006 to a total of only 10 in 2012. A summary of this data is available upon request.
What should hazardous wastes handlers take away from the changes in the regulatory landscape?
1.) Even though State staff and resources dedicated to regulating hazardous wastes appear to have diminished, businesses that are subject to regulation need to remain vigilant. The regulatory playing field may not be level. Outstate businesses may face infrequent inspection. Businesses in the metropolitan area are under closer supervision and will be subject to annual inspections. However, enforcement varies from county to county in the metropolitan area. Hennepin County historically has been the most active and most aggressive of the metropolitan counties in enforcing its hazardous waste ordinance. Other counties appear at times to be most interested in collecting the fees they charge based on the quantities of hazardous waste generated which are used to run their programs. One of the inherent issues with county-by-county regulation is that there may be issues of consistency across the counties. Rules may be interpreted and applied differently depending on the inspector.
2.) EPA continues to monitor MPCA’s regulation of hazardous waste in Minnesota. MPCA and the metropolitan counties reserve the right to refer serious cases of noncompliance to the EPA. Although EPA Region 5 focuses appears to focus its enforcement effort on other “Rust Belt” states – Illinois, Michigan and Ohio – EPA retains the right to pursue enforcement cases throughout the Region, including in Minnesota. As has been noted in other entries on this blog, EPA has been stepping into states in the Upper Midwest – including North Dakota, Iowa and Minnesota – where state enforcement is lagging.
3.) Despite the lack of regulatory oversight, Minnesota businesses should understand that significant sanctions, including civil and criminal penalties, exist and may be imposed if violations are detected. If a condition constituting a violation goes on for a period years, the penalties could add up to a significant figure. For these reasons, businesses should consider auditing their operations under attorney client privilege. If an audit reveals violations, businesses should evaluate whether they may want to seek protection under state or federal audit programs.
Joseph Maternowski is an attorney practicing in environmental, administrative and business law. Mr. Maternowski began his career in the Minnesota Attorney General’s Office where he represented MPCA. Part of his duties included representation of MPCA’s Hazardous Waste Division. Since 1991, when he entered private practice, Mr. Maternowski has represented businesses, units of local government and individuals that are subject to regulation. He helps clients implement audit programs to detect and correct conditions that may constitute violations of environmental laws. He also assists clients in obtaining permits and responding to government requests for information and enforcement actions.
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