Holland & Knight LLP
John S. Irving IV
June 4, 2018
With all of the regulatory obligations that hospitals and other healthcare facilities need to comply with, it might be easy to overlook an environmental law that can lead to significant trouble. Hospitals may find themselves in EPA’s sights over their handling of hazardous waste. Operators of healthcare facilities are encouraged to include this topic in their risk assessments and to consider environmental compliance audits.
The particular environmental law at issue is the Resource Conservation and Recovery Act, or “RCRA” (42 U.S.C. § 6901 et seq.). RCRA requires hazardous waste to be treated, stored and disposed of in compliance with permits and imposes recordkeeping requirements. It provides for civil penalties of up to $71,264 per violation and criminal penalties for “knowing” violations of up to two years in prison and a $250,000 fine for individuals, and up to five years of probation and fines of up to $500,000 for organizations.
A few notes: (1) the term “knowing” simply means that a defendant knew that they were doing something that happened to violate the law – not that they knew they were violating the law when they did it. (2) Justice Department policy encourages prosecutors to charge individual corporate managers and executives where warranted, instead of only charging the company and not holding the individuals accountable. (3) Criminal enforcement actions can be brought against organizations for conduct of employees that are within the scope of their employment and for the benefit of the organization. (4) Both EPA and DOJ policies encourage and provide benefits to companies that identify potential violations through compliance audits, fix problems and make voluntary disclosures to the government.
Hospitals have been known to receive letters from EPA offering an “Opportunity to Show Cause” as to why EPA should not take formal enforcement action. These are typically civil actions that EPA takes after a compliance inspection. In situations where the facility had not been in compliance in a prior inspection, it is not beyond the realm of possibility for EPA to refer the matter for possible criminal prosecution for “knowing” violations of RCRA.
The following are examples of violations that one might find in a healthcare facility:
- 90-day storage violations. RCRA allows proper storage of hazardous waste for up to 90 days without a permit. Containers need to be labeled to identify their contents and provide an “accumulation start date.” There are other safety requirements, such as weekly inspections, security and secondary spill containment. Storage must be “at or near” the generation point.
- Improper “satellite” accumulation points for hazardous waste and failure to separate chemicals for lab equipment, such as tissue processing, slide preparation and X-Ray machines.
- Failure to make hazardous waste determinations – e.g., improper disposal of air filters that should have been classified as hazardous waste.
- Failure to provide employees with hazardous waste training and to adequately describe hazardous waste management activities in their job descriptions.
- Lack of written contingency plans, or Spill Prevention, Control and Countermeasure (SPCC) plans, that are agreed to by local emergency response teams. These require updated phone numbers for local first responder agencies and contact names and home telephone numbers for company emergency coordinators.
- Improper management of expired and unused pharmaceuticals as hazardous waste.
- Failure to properly store and dispose of fluorescent light bulbs and other mercury-containing waste.
- Recordkeeping failures as to all of the above.
- Failure to submit required reports.
Healthcare facility owners and operators should strongly consider including RCRA and other environmental laws in their periodic risk assessments and conducting environmental compliance audits to ensure that their policies and procedures are being followed. That is particularly true for new owners, because EPA policy provides additional incentives to new owners to identify existing environmental violations that they did not cause. Under certain circumstances, audits can be confidential and privileged when performed by an expert environmental consultant at the direction of counsel.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions Mr. Irving and may not reflect the opinions of Synergy Environmental, Inc., Holland & Knight or either of those firms’ clients.