What is EPA’s interpretation of a generator’s liability for the improper handling of its hazardous waste by a permitted off-site facility?

According to a September 17, 1981 EPA letter, the Agency policy is that if the generator, in good faith, follows all the generator requirements in the regulations implementing RCRA at 40 CFR 262, through and including the receipt of a signed copy of the manifest from the designated facility or the filing of an exception report, and complies with the other recordkeeping requirements in Subpart C, the Agency would not take action under 40 CFR 262 against the generator for mishandling of hazardous waste by the designated permitted facility. Part of the generator’s responsibility, of course, is to ascertain that the designated facility is permitted to handle his particular waste.

However, notwithstanding the fact that the generator has complied with the requirements in 40 CFR 262, the Agency may still take legal action, in appropriate cases, pursuant to the emergency provisions in any appropriate environmental statutes including Section 7003 of RCRA, 42 U.S.C. 6973; Sections 504(a), 33 U.S.C. 1346, and 311(e), 33 U.S.C. 1321, of the Clean Water Act; Section 1431 of the Safe Drinking Water Act, 42 U.S.C. 300i; Section 7 of the Toxic Substances Control Act, 15 U.S.C. 2606; Section 303 of the Clean Air Act, 42 U.S.C. 7403, and Section 106 of the Comprehensive Emergency Response, Compensation and Liability Act, 42 U.S.C. 9606. EPA may also use relevant common law authority when appropriate.

These authorities empower the Agency to issue Administrative Orders or to initiate judicial actions designed to respond to “imminent hazards.” To date, actions of this type have primarily involved injunctive actions to force responsible parties (potentially including generators) to clean-up hazardous waste problems at their own expense — and/or to reimburse the government for federal emergency clean-up expenditures. Clearly, the basic policy question is who will bear the cost of clean-up if hazardous waste handling and disposal generates an imminent and substantial endangerment. Rather than placing that burden on totally uninvolved third parties or on the government — these provisions authorize actions against those whose involvement has contributed to the problem.