Legal Developments Related to Environmental Compliance in Higher Education
American Council on Education
January 28, 2000
I. EPA's Current Enforcement Initiative
Earlier this year, EPA's New England Regional Office announced an enforcement initiative against colleges and universities that would include a "targeted enforcement sweep of selected New England campuses." EPA underscored that announcement by sending a personal letter from the Regional Administrator to 258 college and university presidents. That letter describes a pending EPA enforcement action seeking $300,000 in penalties from a state university in northern New England for violations of hazardous waste laws. The letter noted:This case is an example of the increased attention EPA is devoting to environmental compliance at colleges and universities. Unfortunately, we have found that some educational institutions don't take their environmental obligations as seriously as they should. We have found numerous violations of laws.
The letter also mentioned that other enforcement actions against colleges and universities are in development, and that it is especially "important that institutions of higher education set an example for their students and the communities of which they are a part." Other EPA Regional Offices, including those covering the mid-Atlantic states and various western states, have announced similar enforcement initiatives. Most recently, EPA Headquarters announced that colleges and universities will be a top enforcement priority in the year 2000.
Colleges and universities will need to meet the challenges posed by the new and anticipated EPA enforcement initiatives. The government has put the academic community on notice of its obligations. The government expects -- and will tolerate nothing less than -- compliance notwithstanding the difficulties of applying the complex and prescriptive regulatory requirements to campus activities and operations.
As a number of academic institutions can attest, liability for noncompliance with the environmental laws is not limited to major, intentional offenses, nor does there have to be any actual harm to public health or the environment. Rather, sizable penalties have been imposed on academic institutions for relatively minor, inadvertent violations. As EPA pursues additional cases, the penalties likely will escalate as the Agency becomes increasingly concerned with an institution's failure to act. At some point, the Agency may decide to pursue criminal charges against an academic institution that has negligently or knowingly failed to take appropriate action. In addition, civil and/or criminal liability can extend beyond the institution to individuals, based on the public policy rationale that responsible personnel -- from a lab instructor to a college president -- have the duty to ensure compliance with the environmental laws and to protect against risks.
Fortunately, it is not too late to improve your institution's compliance with the environmental laws. In the long term, utilization of an environmental management system ("EMS") on campus is a key step in that direction. An important component of an EMS is the environmental audit, which in the short term also allows an institution to assess its compliance status. An institution that audits, however, will need to be prepared to promptly address any noncompliance that is discovered. It should also be aware that certain of the environmental laws require prompt disclosure of noncompliance to the federal or state authorities. For that reason, prior to an audit, the institution -- presumably with the assistance of legal counsel -- should be thoroughly familiar with relatively recent voluntary disclosure policies and/or legislation adopted in many states. If several conditions are satisfied, utilization of those policies or statutory provisions requires that the government forego all or a substantial portion of a penalty, if the violation has been voluntarily discovered by the regulated entity and promptly disclosed. As the EPA has adopted a similar policy, the choice of whether to disclose a violation to the state or federal agency often will be driven by an assortment of legal and practical considerations.
As the training ground for future generations, academic institutions should make a special commitment to comply with environmental requirements. Consistent with that commitment, if institutions move in a proactive fashion, the EPA enforcement initiative may well provide the opportunity to demonstrate that they have met that commitment.
II. The Principal Regulatory Requirements
In 1976 Congress enacted the Resource Conservation and Recovery Act (RCRA), the law that prescribes the requirements for the handling, storage, transport, and disposal of hazardous wastes. Subsequent amendments and the issuance of hundreds of pages of state and federal regulations have greatly expanded RCRA's scope and complexity. That these regulatory provisions are tailored to industrial facilities only increases their complexity and the difficulty of compliance for academic institutions.While manufacturing facilities typically generate a consistent and known waste stream, campus activities create a diverse, often uncertain, and much smaller quantity of waste. Solvent mixtures, reagents, reaction products, and excess chemicals of all types are left over from experiments in laboratories. Many chemicals used in performing medical tests and treating patients at a campus hospital or infirmary may need to be disposed of as hazardous wastes. Campus maintenance facilities generate used cleaning products and used oil. A photography shop on campus has leftover solutions that contain silver compounds. Other on-campus activities generate wastes containing inks, paints, and other compounds that may need to be handled, disposed of, or recycled as waste. There may also be above-ground or underground storage tanks for gasoline, oil, or other compounds on campus. These need to be registered and must comply with certain regulatory requirements.
Notwithstanding the significant differences between industry and academe, most academic institutions are subject to the same array of regulatory requirements that apply to industrial generators of hazardous wastes. Stated another way, from the regulator's vantage point, your campus is a chemical plant. Thus by example, your institution may need to:
a) undertake an analysis of the components of certain chemical mixture's left over from lab experiments;
b) manage, store, and prepare for shipment containers of hazardous waste in the prescriptive and costly fashion required by the regulations; and
c) formally train certain individuals who "manage" hazardous waste and maintain proper training records for a number of years.
In addition to compliance with the RCRA requirements, campus compliance with other environmental regulatory requirements is also being examined as part of the EPA enforcement initiative. These include:
Clean Air Act: Centralized power plants and any other on-campus power generation sources may be subject to state permitting requirements. Maintenance of heating and air conditioning systems in campus buildings and in motor vehicle fleets must meet federal requirements for minimizing releases of ozone-depleting substances, including the use of certified technicians and EPA-approved equipment. On-campus printing/publication facilities that use solvent-based inks may be subject to special federal requirements under a state or federal air toxics program. Other developing standards may apply to emissions of specific pollutants from research and development activities on campus.
Clean Water Act: Various discharges as well as runoff to surface waters and municipal sewer systems may need to be permitted, and the discharge of certain compounds may even be prohibited.
Asbestos: The demolition or renovation of a building containing asbestos must follow the prescriptive requirements in federal (and frequently state) regulations, including the use of licensed asbestos abatement contractors and specified abatement techniques. In addition, friable asbestos must be addressed in accordance with applicable requirements, regardless of whether the building is being demolished or renovated.
PCBs: There are restrictions on how electrical equipment that contains PCBs can be maintained, serviced, or removed from service and disposed of. In addition, specific regulatory requirements govern the management of PCBs or PCB wastes (which can be present in hydraulic fluids, air compressors, and natural gas system equipment such as compressors).
Lead Paint: An academic institution that acts as a landlord for married student housing and/or university-owned apartments built prior to 1978 is required to (a) disclose to each lessee any known lead-based paint and lead-based paint hazards; (b) provide each lessee with a copy of an EPA/HUD/CPSC-developed pamphlet entitled Protect Your Family from Lead in Your Home; (c) include a "Lead Warning Statement" in each rental agreement/lease; and (d) complete, sign, and date a disclosure form certifying compliance with these requirements.
III. Environmental Enforcement
Until recently, environmental enforcement against academic institutions was relatively isolated. In 1994, a major academic institution on the West Coast resolved alleged violations of hazardous waste laws and regulations by paying a fine of $995,000 to the state, and by agreeing to expeditiously revise and expand -- at significant cost -- its hazardous waste programs. In 1995, a major academic institution in New England entered into a settlement of an enforcement action initiated by the regional EPA office, committing to pay a penalty of $70,000 and to spend in excess of $400,000 on specific new training and pollution prevention programs. The violations alleged by EPA included:o failure to store hazardous waste properly;
o failure to train employees properly in the management of hazardous waste;
o failure to make all required hazardous waste determinations; and
o failure to certify shipments of hazardous waste properly.
As these enforcement actions were highly publicized, EPA felt that the academic community was, at least by 1995, on notice both of the need to take its environmental regulatory obligations seriously, and of the Agency's lack of tolerance regarding noncompliance on campus. That the community has not responded adequately, had moved EPA to the current enforcement initiative.The sheer number of regulatory requirements and their complexity can be overwhelming. Responsible senior officials at institutions should be generally knowledgeable of the regulations; those with day to day compliance responsibilities should be intimately familiar with them and have access to the most current information regarding current and newly promulgated regulatory requirements. Identified below are examples of the many websites that provide this type of information.
1. http://www.turi.org
This is the Toxics Use Reduction Institute site, which is run out of the University of Massachusetts Lowell. It contains a good search engine for technical and process information, as well as materials management information, and is strong on laboratory and R&D applications.
2. http://www.clay.net
This is a bare-bones site that contains a number of lists of environmental sites where information can be obtained -- it is designed as a "rapid information retrieval" service for environmental professionals/consultants.
3. http://www.neis.com
Now known as the Environmental Compliance Reporter, Inc., this site is a clearinghouse for all federal governmental environmental documents and software. The site serves as the central coordinating agent where one can purchase EPA and OSHA documents.
4. http://www.acs.org/government/policy/index.html
This is the American Chemical Society page that contains access to ACS documents and policy positions; back when we first started addressing the issue of environmental regulation of laboratories, the ACS was a good clearinghouse for information regarding legislative and administrative developments of interest.
5. http://www.uos.harvard.edu/uos_ehs.html
This is the Harvard University Environmental Health & Safety (EH&S) home page, which has a detailed program index as well as access to the University's Environmental and Safety Management Policy and EH&S fact sheets.
6. http://www.epa.gov//envirosense
This is part of EPA's website; it is the best repository of information relating to EPA's pollution prevention, compliance assurance, and enforcement information, and also provides links to EPA databases.
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Created: May 10, 2001