Monthly Archives: May 2012

The concept of Point-of-Generation

RCRA defines a solid waste as something that has been abandoned. For a material to be abandoned, someone (a person) has to make a decision to discard it. Once the material is abandoned and if it exhibits one of more of the 4 characteristics (ignitability, corrosively, reactivity and toxicity), it is classified as a  RCRA hazardous waste. If it has been listed as a listed waste (F,K,P or U), it is also classified as a hazardous waste.

The Point of Generation refers to the time when a material becomes a waste. If you have a brew of corrosive material inside a manufacturing vat, RCRA has NO jurisdiction over it because the material is in a manufacturing process and no one has decided to discard it. Once someone takes it out from the vat (remove it from the manufacturing process) and decides to discard (then abandon) the corrosive material, it becomes a solid waste and hazardous waste – in that order.

What if the manufacturing process stops, can the corrosive material sits inside the vat indefinitely? The answer is NO. The reason is that 40 CFR 261.4(c) states that the material will be considered abandoned by the operator after 90 days. This is to prevent people from storing their wastes inside an idle manufacturing unit indefinitely.

If you apply this principal to a clandestine drug bust, you get an interesting story. The illegal drug (a hazardous material) is brewing inside a vat when law enforcement (DEA) kicks down the door and arrests the operator. Has the operator abandoned the hazardous material inside the vat?  No. Why would he? He would love to sell that drug on the street. So why would he discard that material? In this scenario, it is the DEA agents that make the decision to discard everything in the drug lab as a matter of policy because it ASSUMES everything in the lab is contaminated. The policy decision to discard ALL material is made to protect the agents and the community at large.

Technically speaking, all that material sitting inside the vat is hazardous material (not hazardous waste) for 90 days before it becomes abandoned per 40 CFR 261.4 (c) or when someone decides to discard it – whichever comes first. But in reality, they are hauled off and disposed of as hazardous wastes (per DEA policy) by DEA – who will be the generator of those wastes.

A generator is a person that FIRST causes a material to be abandoned.

Not all attorneys are the same

There was a discussion in LinkedIn a few days back when an environmental consultant was lamenting openly why the federal government was immune from federal environmental laws!! When asked who told him that nonsense, he proudly announced that his authoritative source is an attorney (so it must be true). The attorney also told him that the federal government could pollute its own land due to sovereign immunity and anyone can do what he wants to his own property. Just imagine that! So we have a clueless attorney advising an even more clueless environmental consultant who ought to know better. We figure the attorney must be an old real estate fellow who had never heard of CERCLA and was in a coma when sovereign immunity was done away with many years ago.

I have been to conferences where I posed a difficult question (about disclosure) and someone would say: “I will check with my attorney”. It was as if the attorney has all the answers – and correct answers at that. If that were the case, there would not be a robust judicial system in this country where two attorneys enter a courtroom and out comes one winner.

When I worked for a multinational, our law department (30 plus corporate attorneys) rarely handled any specific EPA or OSHA cases. They went straight to outside counsel. And righty so.

It is important  to understand that not all attorneys are the same. It is a simple enough principle (attorneys and engineers all have their own specialties within their own professions) and yet it is often overlooked. You should no more hire a civil engineer to design a refinery than to hire a chemical engineer to build a dam.

Always do your own due diligence before accepting an attorney’s words or anyone else’s. Or else you are going to look like that consultant in LinkedIn who was misled into thinking sovereign immunity still exists for federal agencies.