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FR: Paul S. McCulla, County Attorney

RE: Household Hazardous Waste Program Liability

DATE: January 8, 2003


            At its December meeting the Board of Supervisors directed that the County Attorney’s office review the potential for liability associated with expanding the County’s existing household hazardous waste program.

FACTS: Presently the County’s Department of Environmental Services runs a weekly household hazardous waste disposal program.  Under the program County citizens may bring household hazardous waste to the main landfill facility on Tuesdays.  The County has contracted with a licensed hazardous waste disposal company who categorized the household hazardous waste brought in by citizens then accepts the waste and transports it for appropriate disposal.  In addition to this program the County also has receptacles for used motor oil at it main landfill.  Used motor oil is categorized as a household hazardous waste.

ISSUE:  The Board of Supervisors has inquired whether the expansion of the household hazardous waste disposal program to permit County citizens to drop off household hazardous waste for disposal at any time when the landfill is open.

CONCLUSION:   Permitting citizens to drop off household hazardous waste for disposal at any time when the landfill is open would result in increased exposure to liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA/Superfund) and common law trespass.

DISCUSSION:  Household hazardous waste is defined as that household waste generated by individuals on the premises of a residence for individuals and must be composed primarily of materials found in the wastes generated by consumers in their homes.  If the waste is generated by commercial or industrial activity it is not household hazardous waste even if it looks like household hazardous waste and is the type of waste usually generated by a household.

            Household waste, including household hazardous waste is exempt from federal hazardous waste regulations and liability under the Resource Conservation and Recovery Act (RCRA).  As a result household hazardous waste is not regulated under RCRA as a hazardous waste.  Programs that collect household hazardous waste do not need a Subtitle C permit or EPA identification number, and household hazardous waste can be transported without following hazardous waste transportation regulations.  No quantity of household hazardous waste or length of time of accumulation triggers the Subtitle C requirements.  In summary, if a program accepts only waste from households, there are no applicable federal hazardous waste regulations.

            The lack or regulations under RCRA does not however mean that household hazardous waste is unregulated or without potential liability to a locality running a household hazardous waste program.  In 1980 Congress passed the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA/Superfund).  The purpose of the act was to address the cleanup of inactive and abandoned hazardous waste sites.  CERCLA does not exclude household hazardous waste from liability, nor does it allow exemption based on the amount of waste generated.  If a CERCLA site needs to be cleaned up all sources of the waste, as well as the owner or operator of the site, might be potentially responsible parties who are liable for the entire cleanup cost for the site.

            By running a household hazardous waste program in which waste is dropped off at the County landfill and is processed and stored by the County until the waste transport and disposal firm makes its scheduled pickup increases the County’s potential liability for the waste under CERCLA in two way.  By accepting the waste and possessing it the County becomes an owner of the household hazardous waste.  In addition the storage of the waste at the site increases the potential for liability based upon a release at the landfill storage site.  The potential increased liability can be decreased by proper training of landfill site attendants responsible for the acceptance and storage of household hazardous waste and the proper construction of household hazardous waste storage facilities.  Such actions, however, would require an initial outlay of funds to construct the storage facility and insure the proper training of landfill staff in household hazardous waste acceptance, categorization and storage.  Ongoing maintenance and training costs would also be experienced.

            Proper training of any landfill staff running a household hazardous waste program would be extremely important.  This training would necessarily involve the recognition of the various types of acceptable household hazardous waste and those types of hazardous waste which must be excluded as not fitting the definition of household hazardous waste.  The attendant would also need to distinguish between the exempt household hazardous waste and household hazardous waste generated by industrial and commercial entities which is not exempt from RCRA regulations.  Acceptance of non-household hazardous waste would, in addition to the potential of CERCLA based liability also subject the locality to potential liability under RCRA.

            Liability under CERCLA (and RCRA) is also notable in that while the EPA generally makes the decision as to whether it will take action against particular owners, operators or generators potentially responsible parties can seek contribution from other potentially responsible parties.  As a result a government who has handled or stored such waste may find itself the subject of a lawsuit from another owner, generator or transporter of the household hazardous waste even if the federal government has chosen not to take action against it.  Finally the Act does not restrict citizen suits seeking to enforce the terms of the Act.

            This potential for increased liability may have profound financial effects on a locality as normal liability policies contain environmental contamination exclusions and while environmental contamination insurance is available it is often prohibitively expensive.

            In addition to potential liability under CERCLA the County’s operation of household hazardous waste program in the manner set forth above also would result in a potential increase in liability under the common law right of action for trespass.  The common law trespass action would normally be based upon a claim of contamination resulting a release of a contaminant into the environment that migrates onto adjacent properties.