Until a few years ago, a dumpsite in sleepy southern New Hampshire, near Plaistow, had been federally approved, annually inspected and EPA certified. Even the transporters who regularly deposited their loads there were EPA licensed, and all the businesses that used the site for their refuse assumed that they, too, were in 100% compliance. Imagine, then, how surprised these 2,200 local businesses were – 1,400 of them in the tire and vehicle service business – when the Environmental Protection Agency designated the dump as a Superfund site, and told the businesses they had to pay for the cleanup costs.

“One tire dealer who had used that dump site diligently kept meticulous records of everything that left his tire outlet, along with the names of his waste transporters,” says Roy Littlefield, executive vice president of the Tire Industry Association (TIA). “His recordkeeping was detailed, which made it easy for the EPA simply to retrace the paper trail he had so carefully created. Thanks to his sense of duty and his law-abiding attitude, he became an easy target.”

Unfortunately, by the time the EPA made its citations, this particular tire dealer was deceased, leaving the EPA fine to his widow, who had assumed management of the family business. Result: She closed the doors and was forced to sell everything to pay the fine.

“The real irony here is that, if this dealer had chosen to disobey the law by dumping his hazardous waste in a cave somewhere, the EPA would have been none the wiser,” said Littlefield. “It’s what makes this law so ripe for change.”

“If you set out to understand all there is to know about the EPA, you should make plans for a one-year sabbatical,” says Paul Fiore, who recently took over as TIA’s head of government affairs. “EPA has done good work, but we also know it can be almost nefarious as to the consequences to a small business.”

When Littlefield talks about the EPA, his voice turns as hard as the impositions he believes have been unreasonably placed on so many TIA members. “There are hundreds and hundreds of tire dealers who are using approved dumpsites only to learn that their dumpsite has now been declared a Superfund site. Our members are involved in virtually all of these sites and will pay fines and legal fees ranging from just a few dollars to thousands of dollars, up to as much as $60 million for a site near Sacramento, Calif.”

At the moment, there are 1,305 Superfund sites in the U.S., all scheduled for cleanup. According to Scorecard, an online pollution information site (www.scorecard.org), about 11 million people, including three to four million children, live within one mile of a federal Superfund site. This kind of information gets bad press for those that deposit waste at these sites – most of whom believed they were doing so with the full approval of the EPA.

“A Pittsburgh tire dealer paid $200,000 in legal fees alone just to deal with getting rid of some underground gasoline tanks that had been used by a previous owner,” said Littlefield. “He told me that he had just lost his retirement.”

Littlefield points specifically at the SARA Act, or the Superfund Amendments and Reauthorization Act, which became law in 1986. This is the real trouble spot, according to the TIA executive. “Because people are now being fined heavy dollar amounts, we are aware of tire dealers losing their homes, even though they thought they were obeying the letter of the law.”

Perhaps most unfortunately, the TIA executive can’t seem to drum up support for a change in the law. “The Democrats don’t want to do anything to antagonize the environmentalists, and the Republicans don’t want to offend big business. The 1986 law is a bad idea, a dumb idea,” he says. “but we aren’t getting any satisfaction from the EPA or the White House or from anyone on the Hill.”

Does that mean Littlefield is giving up? Not a chance. “We are continuing to try to work out our differences with the EPA. We don’t like this law, but we advise everyone to continue obeying the letter of the law. This is something we can only accomplish by working through the system.”

But, he does offer this bit of advice: “If you get caught sideways with the EPA, don’t waste time and money calling the family attorney. Call TIA, so we can offer you a choice of lawyers who are familiar with the EPA, Superfund sites and how best to approach the situation.”

What is Hazardous Waste?
Part of the problem has to do with loose EPA language that can leave the decision of what is – and what is not – hazardous waste in the hands of the waste generator. In other words, you!

So, that means you must do the homework. You must determine, through research and common sense, what is and what is not hazardous waste. If you’re not yet confused, you will be.

Case in point: According to the EPA’s own Web site (www.epa.gov) “used oil” includes a whole rash of by-products, including used engine oil (from vehicles and stationary equipment) – natural and synthetic – as well transmission fluid, compressor oil, refrigerants and six other oils it lists. But, the EPA also says its list does not include all types of “used oil.”

“Used oil,” according to the EPA, does not include antifreeze (more about that later) or kerosene, vegetable and animal oil, even when used as lubricant, or petroleum distillates used as solvents.

Then, the EPA confuses things even more by trying to explain what it does not consider to be “used oil,” a list that includes “waste oil from the bottom clean-outs of virgin fuel storage tanks, virgin fuel oil spill cleanups or other oil wastes that have not actually been used.” All of this has to be disposed of, doesn’t it?

And then, there is this footnote to it all: “Oils that do not meet EPA’s definition of used oil can still pose a threat to the environment when disposed of and could be subject to regulations for hazardous waste management.” Huh?

If you’re not confused, we are. Of course, you can always pull up any one of the 10,000 EPA publications that are available online. The answer is there in black and white. Somewhere.

And, if the Web site doesn’t satisfy you, try talking to an expert inside the beltway. One such in the nation’s capital told us that the EPA had nothing to do with the disposal of scrap casings. Again, huh?

Making matters more frustrating, the EPA operates nationally through 10 regions, each of which is responsible for several states and territories. And, each operates somewhat autonomously, to the point that environmental rules that apply in Georgia, located in Region 4, might be reviewed differently in Montana, which is located in Region 8.

But, when asked for a national EPA hotline for tire dealers to call, Tire Review was told none exists. Dealers, though, can call 800-424-9346 to find your appropriate state contact as well as scores of other EPA contact points.

Paperwork Jungle
What the EPA seems less confused over is the hurt it can put on a ‘violator.’ Under the Resource Conservation and Recovery Act (RCRA), says Phil Flax, senior enforcement team leader, if the EPA decides to bring action, it can fine a tire dealer up to $32,500 per violation, per day. As he puts it: “Don’t violate the law; do the right thing. All too quickly, a 10-day delay can result in a $325,000 fine.”

Flax is not the bad guy; he’s doing what he’s paid to do. If the law changes, Flax will have to obey the revision.

A reasonable-sounding bureaucrat, Flax likes to talk about ‘enforcement discretion.’ “If we feel the tire dealer is working with us and the law in a good-faith manner, the penalty might be waived or reduced,” he said. “Truth be told, we don’t want to be involved in long-term fights; we’d rather see tire dealers complying. Make sure your hazardous waste is being handled in an approved, appropriate manner. Keep accredited and proper certification papers on file.”

Oddly, the paperwork he speaks of – the eight-page Hazardous Waste Manifest – creates a ton of waste. Everyone who touches your waste – including transporters, recyclers, dump operators and yourself – has to sign off at each step of the process and retain copies for records. You end up with a fully signed copy for your files.

“This is how you can prove you are in compliance,” Flax says. “As part of your normal business protocols, keep a copy close at hand for an EPA or RCRA agent who will ask for it.”

At the same time, dealers should also tell the EPA when waste is not dumped. “If a tire dealer has not had his used oil picked up by an EPA-licensed transporter for an overdue period of time, that dealer will serve himself well by making a self-disclosure,” says Flax. “This can be accomplished online.”

But, keep in mind that all of this paperwork also creates a paper trail the EPA can hound dog should it choose to investigate a dumpsite.

Are You a Generator?
So, who falls under RCRA’s pervue? Answer: Any vehicle maintenance facility that generates what the EPA defines as hazardous waste.

If your dealership does generate hazardous waste, you are obligated to ‘manage’ it according to regulations for your specific generator type. There are three groups:
• Large-quantity generators are those that produce up to 2,200 pounds of hazardous waste per month.
• Small-quantity generators produce more than 220 pounds but less than 2,200 pounds of hazardous waste per month.
• Conditionally exempt small-quantity generators (CESQG) produce less than or equal to 220 pounds of hazardous waste per month and less than or equal to 2.2 pounds of acutely hazardous waste per month.

Note: Some states do not recognize EPA’s CESQG class, so you need to contact your state environmental agency to find out if it does. This also means that you may have two sets of regulations to deal with.

Based on how much hazardous waste – remember, the definition of this tends to shift – you generate month to month, your generator status might change from one month to the next. You are bound to comply with whichever standard is applicable for a given month, EPA says. In many cases, small businesses that fall into different categories at different times choose to satisfy the most stringent requirements (usually state requirements) to simplify compliance.

To determine your prevailing category, you have to ‘count’ the amount of waste generated during a calendar month. This means adding up the total weight of all “quantities of characteristic and listed waste generated at a particular facility,” which, if you don’t understand EPA’s esoteric language, includes used motor oil, used antifreeze, shop rags, solvents and anything else that looks suspicious.

“Certain wastes, those that are reclaimed or recycled continuously on site, are not counted under the federal regulation,” EPA says.

What Constitutes a Violation?
Trying to figure out exactly what would cause a violation is like pushing rope. Some of EPA’s own directives tend to be circular or negate others issued by state authorities.

To wit: Typical hazardous wastes identified by the Washington State Department of Ecology Office of Waste Reduction and Recycling include used oils, antifreeze, carburetor cleaners, degreasing solvents and spent hot dip tank solutions. The U.S. EPA Office of Enforcement and Compliance Assurance, meanwhile, adds shop rags to the list.

The U.S. EPA says: “A facility must manage used shop rags and towels as hazardous waste if they are contaminated with a hazardous waste or display a hazardous characteristic due to the presence of gasoline or metal-contaminated antifreeze.” And, EPA does allow you to ‘manage’ these used rags and towels by having them washed through a laundry service or by disposing of them at an approved or ‘permitted’ disposal facility.

But, in the same breath, the EPA notes that many states do not consider shop rags sent to a laundry service to be hazardous waste – though said laundry service could be generating a hazardous waste by servicing those rags.

See what we mean? One instruction seems to cancel another, but always keeps you – the “potentially responsible party” or PRP – in the spotlight as the ultimate answer for getting rid of the problem – at any cost.

Some believe the single biggest problem with the EPA and RCRA is the plethora of confusing advice and convoluted language that leaves tire dealers and others in a quandary. Example: In Minnesota, used antifreeze is a “possible” hazardous waste, but the state will give you a break if you handle it properly. In Florida, used antifreeze is exempt from hazardous waste status if handled properly. The language is slightly different, but what does it really mean?

In EPA’s Region 2 (New York and New Jersey), an automotive repair facility was found in violation under the RCRA, but received a reduced penalty when it voluntarily agreed to analyze its waste antifreeze monthly and recycle all waste antifreeze found to be non-hazardous. The business also agreed to subsidize used antifreeze recycling at two of its shops “to make antifreeze recycling cost effective in comparison with the purchase of new antifreeze by shop users.”

This, says the EPA, cut the penalty from $13,200 to $10,760. But, when you add in the cost of the recycling gear – $4,880 – the total compliance cost was $15,640.

This begs the question of penalty application and under what circumstances. In one EPA directive, we are led to believe that used antifreeze is exempt from penalty if handled properly. In another EPA advisory, we see evidence of strict financial penalties regardless.

Clouding it all is the role state regulations play and the inconsistency of those regs. Had that Region 2 offender been repeatedly warned before being fined? Was a proper amount of time given to offenders in Florida or Minnesota to rectify problems? And, if it’s not a serious threat to residents in those two states, why did the shops in Region 2 have to pay a fine? All good questions with no good answers. From anybody.

Hazy Future
There is some evidence that the EPA might be taking a “kinder, gentler” approach. Less draconian. If that is possible. “When we learned that some vehicle repair and maintenance shops were injecting certain untreated liquids into underground wells, which can lead to groundwater contamination, we issued a regulation halting the practice,” says the EPA.

“We did this with the full knowledge that our action could have a significant economic impact on 4,800 small businesses and 380 small towns,” EPA says. “To lessen the impact of our action, we used a phased approach, whereby well owners have seven years to comply.”

That sounds reasonable. But, the EPA went further. “The regulation also allows owners and operators to seek a waiver from the ban and get a permit to continue operations as long as certain conditions for environmental and public health protection are met.”

What solace can you take away from this article? Remember this: In a single year, the EPA publishes about 10,000 regulations in either proposed or final form. Of these regulations, only about five to 10 are considered major.

Regardless, it is totally up to you as a business owner to abide by the prevailing regulations – federal and state. That means picking through hundreds of thousands of words and trying to reconcile often conflicting or hazy rulings.Unfortunately, you and your waste disposal vendors can do everything right and still end up with a whopping fine.

The EPA was created to give us all a cleaner environment. To do that, it is charged with eliminating pollution. And, no one can disagree with that goal.

At the same time, the EPA has the power to wreck a business with a single stroke of the pen – even if that owner has done all he or she can to be in compliance. Case in point: That poor deceased dealer from New Hampshire, whose exemplary disposal and paperwork became the EPA’s chief cudgel.

In a single instant, you are forced to deal with the “good” EPA and the “bad” EPA. We want clean air, water and all the rest, but we also want a less complicated, less costly way to conduct business. We want polluters to be punished, but not helpless parties who had nothing to do with past contaminations. We want to follow regulations – to the letter – but we want clear, consistent rules to follow.

Is there a more workable solution? That is a question for you to ask and answer. TIA and your state associations are a good place to start, as are your state and federal legislators.

If the law is flawed, it must be fixed.

So, What is a Superfund Site?
In 1980, the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), or Superfund, was passed by Congress to address the problem of cleaning up abandoned toxic-waste dumpsites. The legislation sought to define liability for individual toxic-waste sites and then clean up those sites from a fund – a Superfund – built from tax monies and from fines assigned to the entities that polluted individual sites.

Passed into law in response to the 1978 Love Canal incident in Western New York state, the Superfund has been controversial from the beginning, in large part because its unusual definition of liability puts the focus on the cleanup and not the polluter.

Under the Superfund law, a party that unknowingly took over a site that had been contaminated by a previous owner could be forced to pay for its entire cleanup.

Further, a company could be assessed steep costs for using waste management practices that were previously entirely legal at the time the contaminated material was disposed of.

Source: Environmental Literacy Council – www.enviroliteracy.org