“Next Gen” Enforcement – An Example
There has been a considerable “uptick” in civil Consent Agreement and Final Orders (“CAFOs”) executed by the United States Environmental Protection Agency (“USEPA”) Region 6. I have heard from numerous sources that have confirmed this “uptick.” The specific targets of this enforcement are Conditionally Exempt Small Quantity Generators and Small Quantity Generators.
The basis of the CAFO is from an USEPA document review. The USEPA looks up a company’s generator status and compares it to documented disposal activities. If the disposal is greater than the claimed status (i.e. company/facility claims small quantity generator status and there is more than the allowed generation and disposal), then the USEPA issues the CAFO. The CAFO is mailed directly to the entity, and it requests that the entity respond to the CAFO concerning its generator status not matching its waste disposal activities. The USEPA has been targeting Conditionally Exempt Small Quantity Generators and Small Quantity Generators for the CAFO waste issues. The CAFOs have “requested”:
- Corrective Action be taken immediately; including the adjustment of the generator status;
- An inspection (USEPA is only writing CAFOs from waste records);
- The installation of Standard Operating Procedures for hazardous substances; and
- The payment of fines associated with the CAFO.
Reportedly, there has been very little negotiation or leniency on the part of the USEPA when issuing the CAFOs. A CAFO can cost more than $100,000.00 just for the fine.
With that being said, there are steps you can take and programs that you can use to help fix or reduce the issues before the USEPA comes knocking.
In Texas, there is the audit privilege program, the Texas Environmental, Health, and Safety Audit Privilege Act (“Audit Privilege Act”). Some states have similar type privilege laws, while other states do not. In Texas, the Audit Privilege Act allows a company to notify the TCEQ that it will be conducting a self-audit of its environmental, health, and safety programs (in the context of the CAFO cases, it is a waste audit). There are benefits of conducting an audit under the Audit Privilege Act which include: certain documents and information gathered as part of the environmental self-audit are privileged from disclosure; the Audit Privilege Act also provides certain immunities from administrative or civil penalties for the violations voluntarily disclosed and corrected within a reasonable amount of time; there is typically a memorandum of understanding between the USEPA and the state regarding the particular state’s audit privilege act.
Bottom line, you should take steps to make sure that all paperwork documentation regarding generator status is complete and up to date. If there is “generator status” or “waste” issues or questions, you should consider conducting an audit under the particular state audit privilege law to ensure that the generator status is correct.
The cost to comply (doing the audit and correcting any deficiencies in the generator status submissions) is far less than the cost of the CAFO plus the cost to comply.
As always, feel free to contact me at firstname.lastname@example.org
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