RCRA 101 Part 9: Cradle-to-Grave Liability

Editor’s Note: Welcome to part 9 in our series about the Resource Conservation and Recovery Act (RCRA). During this series, we’ll guide you through proper hazardous waste handling so you stay compliant and safe.

A facility’s responsibility for the hazardous waste it generates doesn’t end when the properly manifested and labeled containers leave their shipping dock. Hazardous waste generators continue to be responsible for their hazardous wastes as well as any costs associated with future releases of that waste.

Situations like Love Canal in New York and the Valley of Drums in Kentucky illustrated the effects of improper hazardous waste management. They were very costly to clean up and compromised the health of people in those communities. To help safeguard against future incidents like these, the Environmental Protection Agency (EPA) established “cradle-to-grave” liability for all hazardous waste generated by facilities under the Resource Conservation and Recovery Act (RCRA). This liability helps ensure that facilities choose responsible treatment, storage and disposal methods for the hazardous wastes they generate.

Each hazardous waste generator’s cradle-to-grave liability includes joint and several liability. This means that if there ever is an incident in the future involving the release of hazardous wastes that have been landfilled or otherwise land-disposed, everyone who has ever put waste into that landfill is a responsible party and is responsible for cleanup costs.

Treatment, Storage and Disposal Facilities

Treatment, Storage and Disposal Facilities (TSDFs) are required to have safeguards and procedures in place to prevent releases. However, they are not always sufficient to cover the entire cost of cleanup and remediation after an incident.

When a TSDF cannot cover all of the associated costs, the responsible parties must pick up the difference. Traditionally, these costs are divided among the responsible parties based upon the volumes of wastes that they put into the landfill. However, if a responsible party cannot be located, is no longer in business, is bankrupt or for any other reason cannot pay their share, their portion of the costs is reallocated to the other responsible parties.

Because of this, it is prudent for generators to carefully consider their waste handling and disposal options. Options like landfilling are often initially less expensive than incineration or fuels blending, but they have a higher degree of future liability.

Liability Insurance and Recycling Advantages

Hazardous waste generators can purchase liability insurance to help cover the costs associated with future releases. But, cradle-to-grave liability cannot be transferred to transportation companies. It also cannot be transferred to the facility that receives the wastes. It always remains with the generator.

This is one of the reasons why the EPA encourages facilities that generate hazardous wastes to recycle their wastes whenever possible. Recycling also reduces the use of virgin materials and keeps the wastes out of landfills. However, the EPA recognizes that recycling is not always an option.

When a generator chooses to dispose of their hazardous wastes, they need to carefully consider both the company that will haul their wastes, as well as the TSDF. Before choosing, generators should visit these facilities; confirm that they have current EPA permits; perform an audit of their storage, handling, treatment and disposal procedures; check their recordkeeping procedures and verify that they have adequate levels of insurance.

Just like hazardous waste generators, the EPA regulates hazardous materials haulers and TSDFs that provide either temporary or permanent storage or disposal of hazardous wastes. Choosing reputable facilities won’t guarantee that there will never be a spill, release or other incident, but it will help to limit future liability. Hazardous waste generators need to understand cradle-to-grave liability so that they can make informed decisions to limit their future waste liabilities.