State Steps up Enforcement of Hazardous Waste Violations by Hospitals
By Amy Manzelli
Hospitals and healthcare laboratories produce hundreds of different hazardous wastes from multiple common generation sources. These sources include facility operation (e.g. used oils, paints, lightbulbs), pharmacy, laboratories, radiation, and chemotherapy. As early as 1998, the Environmental Protection Agency began an initiative to increase hospitals’ compliance with hazardous waste laws: the Resource Conservation and Recovery Act (RCRA). The EPA took a classic carrot-and-stick approach, first notifying hospitals of the initiatives and inviting them to perform their own evaluation of their environmental compliance and to disclose any violations in accordance with the EPA’s Audit Policy (eDisclosure) or be subject to inspections and enforcement. Some hospitals agreed to perform an environmental audit in hopes of avoiding inspections and enforcement actions, the latter of which could result in hundreds of thousands in monetary penalties. Others did not and ultimately paid penalties.
The EPA and state agencies chose to focus on hospitals because they contribute to the presence of toxic chemicals and hazardous wastes in the environment, and are subject to numerous environmental regulations, but are generally not aware of, or do not consistently comply with, RCRA regulations. RCRA violations are the most common types of violations EPA found in a study of hospitals’ compliance with environmental laws. The most common violations by hospitals identified include: improper hazardous waste determinations (i.e. failing to identify that a solid waste is a hazardous waste under RCRA); failing to make a hazardous waste determination; and incorrectly classifying generator status.
Since 1998, the initiative has unfolded, leading up to enforcement actions in multiple regions nationwide. In 2004, EPA Region 1 sent letters to New Hampshire hospitals to inform them of the EPA Audit Policy and invite them to workshops addressing compliance issues. As a follow-up to these outreach efforts, the state’s Department of Environmental Services began targeting New Hampshire’s 13 acute care hospitals that received EPA’s letter, starting with Concord Hospital.
Enforcement began with DES’s right of inspection, which it may conduct at any “reasonable time.” RSA 147-A:7; N.H. Admin. R. Env-Hw 902.01;N.H. Admin. R. Env-Hw 900. DES may issue an order to comply with the statute and/or the rule, and require such remedial measures as may be necessary. RSA 147-A:14, I.
A DES order may be appealed to the waste management council and RSA 541 governs appeals of the council’s ruling. DES may request the attorney general bring a civil action for appropriate relief, including a temporary and/or permanent injunction, to enforce the laws or an order. RSA 147-A:14, II. In the case of this initiative, DES opted for the latter; the attorney general’s office offered to simultaneously file an enforcement lawsuit and move for court approval of a consent decree.
Eventually, in 2012, Concord Hospital settled with the State for $205,000 after the State alleged that Concord Hospital failed to identify certain pharmaceutical wastes as hazardous wastes, and therefore shipped hazardous waste to facilities that were not authorized to accept the wastes. Next, in 2013, Catholic Medical Center settled with the State for $205,000. In 2015, Cheshire Medical Center settled with the State for $200,000. Most recently, in 2017, Wentworth-Douglass Hospital settled with the State for $205,000. While each case was different, the nature of the alleged violations was similar.
As for the other hospitals targeted, six hospitals received administrative fines ranging from $2,400 to $18,100 (Elliot, Southern NH, St. Joseph, Lakes Region, Parkland, and Frisbee). Three other hospitals — Portsmouth, Exeter, and Mary Hitchcock — had minor violations and received no penalty.
The State is taking these enforcement actions to help bring to fruition the primary goals of RCRA to: 1) protect human health and the environment; 2) conserve energy and national resources; 3) reduce the amount of waste generated; and 4) ensure that wastes are managed in an environmentally sound manner. Subpart C of RCRA establishes a system for controlling hazardous waste from “cradle to grave” (generation to disposal). Individual States also work towards these same goals.
RSA 147-A and the New Hampshire Hazardous Waste Rules, Env-Hw 100-1200 (effective Aug. 14, 2017), implement RCRA Subpart C. The law and rules include criteria for when a waste is classified as hazardous; set standards, procedures, and reporting requirements for waste generators; establish a permit process for treatment, storage, disposal and transfer facilities; and establish a registration system for transporters of hazardous waste.
The first step of complying with RCRA, chapter RSA 147-A, and the Hazardous Waste Rules is to identify what waste is hazardous waste. Next, determine what amount of hazardous waste the facility generates. This dictates what level of accumulation, manifesting, and record-keeping requirements apply.
The enforcements actions provide valuable insight: a hospital should not assume that it has escaped a lawsuit, even if it has completely resolved issues cited by a prior Letter of Deficiency. Because of the potential for irrevocable environmental harm arising out of these types of violations, DES is likely to seek enforcement despite subsequent compliance. Consequently, if a hospital is found to have violated hazardous waste disposal laws, the hospital should anticipate a civil forfeiture in the amount of roughly $200,000 and a requirement to perform audits in the future. Because so many of these cases have settled with terms near to those, it is very difficult to justify much variation.
In light of these compliance initiatives, healthcare facilities should review the internal procedures with a third party in accordance with DES’s checklists and modules. The most conservative option would be to invest in having a consultant perform a full environmental compliance audit, typically costing between $2,000 and $15,000. Even at the cost of $15,000, the audit is a bargain compared to a $200,000 civil forfeiture. If any violation is found, the hospital should consider, with the advice of legal counsel, voluntarily self-reporting. New Hampshire’s hospitals can do their part to achieve the policy objectives of RCRA, to keep hazardous waste out of the environment. And if not motivated by that goal, the continued enforcement pressure, including monetary penalties, is also good motivation.
Amy Manzelli is managing attorney and part owner of BCM Environmental & Land Law, PLLC, with offices in Concord, NH and Portland, ME, where she practices environmental, conservation, and land law.