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HOW DO UNIVERSITIES COMPLY WITH RCRA?: THE STORAGE OF HAZARDOUS WASTE ON THE UNIVERSITY OF HAWAI`I CAMPUS

Jamie Tanabe, Class of 2002

Foreword

Dear Reader:

This paper was done as a final assignment in an introductory course to environmental law (Environmental Law, Fall 2000). The assignment was to take a major environmental statute and apply it to an ongoing case in Hawaii. I chose to investigate the University of Hawaii's violation of the Resource Conservation and Recovery Act (RCRA) because the issue directly affected me as a graduate of the University and as a current law student. I was initially shocked that a university, attended by over thirty thousand students, stored potentially explosive, unlabelled, corroding containers of hazardous wastes directly under student lecture halls. After speaking to several university and state health officials, however, I realized that university compliance with hazardous waste law has been an ongoing problem across the nation as a result of complex state and federal regulation. By writing this paper, I hope to understand and explain the obstacles universities encounter in attempting to comply with complicated regulations that were initially adopted to respond to commercial waste and are now being applied to universities that have little in common with the industries RCRA was designed to regulate. Since I completed this paper, the Consent Decree between UH and the state Department of Health (DOH) was finalized. A brief summary of the Consent Decree is provided in an Epilogue.

Jamie Tanabe

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I.  Introduction

The problem of “hazardous waste” disposal has long been associated with large industrial manufacturers furtively pumping toxic chemicals and waste into polluted bodies of water.  Tragedies like the Love Canal disaster[1] and the release of toxic gas in Bhopal, India, which killed more than 2,000 people,[2] have captured the attention of the public.  Contrary to common stereotypes, however, even relatively benign institutions such as public universities produce substantial quantities of hazardous wastes, fall under the jurisdiction of federal environmental statutes, and violate the law. 

In 1976, Congress enacted the Resource Conservation and Recovery Act[3] (“RCRA”), 42 U.S.C. §§ 6901-33, in order to establish a system of regulating an estimated three to four billion tons of hazardous waste produced by Americans every year.[4]  Over the years, RCRA has been successful in regulating the vast amounts of solid and hazardous waste generated by large manufacturers and a variety of industries and institutions.  Colleges and universities are institutions that fall under the jurisdiction of RCRA and are often cited for violating the complicated statute.  These educational institutions operate research facilities, medical centers, storage units, and campus transportation services, which generate hazardous wastes.  Unfortunately, educational institutions often have only a limited understanding of federal and state statutes and regulations, which operates as an obstacle to compliance.[5] 

Like many colleges and universities[6] across the nation, the University of Hawai`i at Manoa (“UH”) has been cited for various RCRA violations.  On February 19, 1999, state health officials informed the University that it was violating state and federal laws by storing hazardous chemicals and waste without a permit.  Some of the chemicals, including solvents, mercury and picric acid, were stored near Bilger Hall and the Environmental Protection Facility for months.  Mercury emits toxic fumes that can cause adverse health conditions if inhaled in excess quantities, and picric acid has explosive abilities.[7]  At a Kauai location, the University also stored soil contaminated with dioxin and Agent Orange, two extremely dangerous chemicals that can cause severe health impacts.[8]

This paper discusses the unique aspects of how institutions of higher education address the problem of hazardous waste, focusing on UH’s recent violations of RCRA.  The background section will outline the RCRA statute and discuss UH’s violations.  The analysis section will discuss the difficulties universities face in complying with RCRA, such as budget constraints, the use of a large variety of wastes, and the noncontiguous nature of college campuses.  This section also addresses how other universities have dealt with RCRA and how UH is likely to resolve the problem through a consent decree with the State Department of Health (“DOH”).  This paper will conclude by suggesting measures universities can take to increase compliance, such as retaining legal counsel with environmental expertise, establishing environmental compliance offices, and lobbying enforcement agencies to establish guidelines and simplify regulations, without decreasing their standards.

II.  Background

A.     Overview of RCRA

Congress enacted RCRA in 1976 as an amendment to the Solid Waste Disposal Act of 1965.[9]  RCRA is the primary law that governs the management of solid waste nationwide. Its three main objectives are:  (1) to increase the safety of land disposal of wastes, (2) to encourage development of superior alternative technologies of waste disposal, and (3) to reduce waste.[10]  RCRA regulates all solid wastes, which are defined as:

any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining, and agricultural operations, and from community activities.[11]

Solid wastes can either be hazardous, regulated by RCRA Subtitle C, or non-hazardous, regulated by RCRA Subtitle D. 

1.     Non-Hazardous Waste

Regulation of non-hazardous waste under RCRA is usually delegated to the states and is directed primarily toward setting standards for solid waste disposal facilities.[12]  Under Subtitle D, which regulates non-hazardous solid waste, Congress developed criteria to control Municipal Solid Waste Landfills (“MSWLF”).  Subtitle D requires the Environmental Protection Agency (“EPA”) to establish guidelines for state solid waste management plans.[13]  These guidelines include banning new open dumps, requiring EPA to establish criteria for classifying facilities as sanitary landfills, and requiring EPA to establish minimum regulatory standards for municipal landfills to be implemented by the states.[14]  Mining waste, household garbage, non-hazardous industrial waste, and waste from small generators of hazardous waste are not regulated under Subtitle D of RCRA.[15]  Unlike hazardous waste requirements, which cover “cradle-to-grave” management, solid waste regulations mainly deal with the “grave” aspect, the disposal facility.

2.     Hazardous Waste

            Hazardous waste is defined as:

solid waste, or a combination of solid wastes, which because of their quantity, concentration, or physical, chemical, or infectious characteristics may (1) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness or (2) pose a substantial present or potential hazard to human health and the environment when improperly treated, stored, transported, or disposed or, or otherwise managed.[16] 

Regulations that apply to hazardous waste are much more extensive than non-hazardous waste regulations and provide for a system of tracking "from cradle to grave."[17]  A waste is “hazardous” if it meets one of the following three criteria:  (1) it is on EPA’s list of hazardous wastes,[18] (2) it exhibits a hazardous characteristic,[19] or (3) it is a mixture containing a hazardous waste.[20]  There are four general categories of hazardous waste handlers that fall under the scope of RCRA:  generators[21]; treatment, storage and disposal facilities (“TSDFs”)[22]; recyclers[23]; and transporters.[24] 

Universities typically fall under the “generator” category, which are facilities that produce hazardous waste.  If a university generates solid waste on campus, it is responsible for determining whether the waste is hazardous.  If it is hazardous, the university must determine its obligations under RCRA’s generator regulations. 

Generator requirements include "provisions relating to storage procedures, emergency planning, personnel training, recordkeeping and reporting" to assure that all hazardous wastes are identified, and safely managed and disposed of.[25]  A generator can either be a large or small quantity generator (“LQG” or “SQG”) or a conditionally-exempt small quantity generator (“CESQG”), depending on how much hazardous waste it generates per month.[26]  LQGs are subject to full regulation, while CESQGs are subject to reduced standards. 

Most universities with large research facilities are normally LQGs, generating over 1,000 kilograms of hazardous waste a month, or SQGs, generating between 100 and 1,000 kilograms per month.[27]  Both LQGs and SQGs are required to obtain an EPA identification number by submitting a “Notification of Hazardous Waste Activity” to the EPA.[28]  When these generators accumulate hazardous waste on-site, they must comply with tank or container storage requirements.  LQGs can accumulate hazardous waste in these containers for up to ninety days without a permit.[29]  Any storage over ninety days requires a permit from the EPA.[30]  Other requirements that LQGs and SQGs must fulfill include establishing an inspection program, developing emergency programs, training employees, and developing programs to minimize waste.[31]

Generators may choose to treat their hazardous wastes on-site without obtaining a permit.[32]  This allows colleges and universities to treat their own hazardous waste on campus, which could drastically reduce the volume and toxicity of their waste and save money on transportation costs.  RCRA also allows generators to store wastes in “Satellite Accumulation” areas in order to avoid the frequent transportation of small quantities of hazardous waste within the facility.[33]  If a satellite accumulation area exceeds a maximum of 55 gallons of hazardous waste, it must be moved to the central storage area within three days of exceeding the limit.[34]  This provision greatly benefits universities because universities normally generate hazardous waste at different laboratories, agricultural sites, and maintenance areas.  RCRA does not specify a maximum number of Satellite Accumulation sites; however, Satellite areas should not be used in place of central storage areas.[35]

3.     Exemptions

Certain types of hazardous waste are exempt under RCRA.  Some of these exclusions include solid waste that arises from households; natural gas exploration, development or production; mineral extraction or processing; mining operations, crop growing and harvesting; and oil filter draining.[36]  The household waste exclusion includes any waste that is “derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas).”[37]  Thus, wastes from university dormitories would be excluded from hazardous waste regulation under this exception, but not waste from classrooms and laboratories.  RCRA also exempts solid wastes derived from animal raising and crop cultivation as long as the waste from these agricultural activities is returned to the soil as fertilizer.[38]  Universities that engage in these agricultural activities can also benefit from this exclusion.

4.     Enforcement Of RCRA – Federal v. State Role

The federal agency in charge of implementing RCRA is the EPA.[39]  The EPA may delegate the authority to implement RCRA’s hazardous waste program to the states.  States with programs authorized by the EPA, pursuant to 40 C.F.R. § 271 (“authorized states”), have the primary responsibility for enforcing federal hazardous waste regulations.[40]  Section 3008 of RCRA, however, provides the EPA with the authority to take enforcement action in an authorized state when the state asks EPA to do so or when the state fails to take timely and appropriate action.[41]  To become authorized, a state must submit an application to the EPA detailing the state’s program, what state laws apply and how they support the state’s program, and an agreement detailing the relationship of the EPA and the state’s enforcement agency.[42]

The State of Hawai`i has incorporated RCRA regulations into its statutory scheme and enforces state hazardous waste regulations through the DOH.[43]  Hawai`i is not, however, an authorized state.[44]  Thus, a dual enforcement situation exists where the DOH enforces state hazardous waste regulations, and EPA enforces RCRA.[45]  State statutes need not be identical to their federal counterparts, but must be at least as stringent as federal requirements.[46]  Therefore, organizations in Hawai`i must comply with federal and state regulations, and when the EPA promulgates new federal regulations, the states generally have two years to implement their own requirements before facilities are held responsible.[47]

B.     University of Hawai´i’s RCRA Violation

The University of Hawai`i is an LQG that creates approximately 170 to 300 kilograms of hazardous waste per month.[48]  UH generates hazardous waste through various campus laboratories, the medical school, the art department, vehicle and building maintenance, and other off-site university research facilities.[49]  The University's Environmental Health and Safety Office (“EHSO”) is responsible for handling and disposing of hazardous wastes generated by all UH campuses and laboratories and operates the Environmental Protection Facility (“EPF”), where hazardous wastes generated at UH are stored.[50]  When laboratories or departments on-campus no longer need a certain chemical, they are required to contact EHSO and arrange for pickup and removal of the waste.[51]  Individual departments are required to complete an Excess Hazardous Material/Waste Turn in Form (“Turn in Form”) that includes the following information:  (1) department, (2) location and phone number, and (3) a list of the materials to be picked up, quantity, and whether the items are material or waste.[52]  This form is required to ensure that UH is complying with RCRA transporter requirements and assists UH in tracking the hazardous waste from the time it is generated until its disposal.[53] 

In October 1997, representatives of DOH and EPA conducted a Hazardous Waste Compliance Evaluation Inspection[54] of the EPF and Fallout Shelter of Bilger Hall at the UH Mānoa campus.[55]  The inspectors discovered that UH was in violation of numerous state and federal hazardous waste regulations.  In February 1999, UH was cited for storing hazardous wastes at Bilger Hall and EPF without a permit as required by federal and state regulations.[56]  Among other violations, UH was also cited for the mismanagement of containers – many containers were corroded with materials leaking out, incompatible chemicals were stored within the same area, there was no organized method of storing the chemicals, and the containers were not labeled[57] – as well as failing to minimize the possibility of an explosion and not conducting routine inspections.[58]  At the EPF, bottles of liquid explosives like picric acid, trinitrobenzene and trinitrotoluene ("TNT") were being stored.  The explosives had been there for over a year and were never inventoried.[59]  Explosives were also being stored in the Bilger fallout shelter, housed in the same building where classrooms and student laboratories are located.  As much as four to five hundred pounds of mercury had been stored there since 1990, and mercury beads were found on the floor.  Although the door to the shelter was locked, once it was opened, “a strong, overpowering chemical odor emanated from the space below.”[60]  Over fifty percent of the bottles were labeled “unknown” and placed next to each other, with spillage leaking everywhere and some bottles missing caps.[61]  This created a huge hazard because many of the chemicals labeled “unknown” were incompatible wastes with explosive capabilities and placed in close proximity to each other. 

DOH also cites UH for storing approximately fifty herbicides, in twelve fifty-five gallon drums, including Agent Orange, at its Kauai Agricultural Research Center ("KARC").  The herbicides were used in a series of field test conducted in 1967 and 1968 to "investigate the performance of rapid defoliants and systemic herbicides in the control of Hawai`i jungle vegetation."[62]  After the tests, the chemicals were collected, transferred to steel fifty-five-gallon drums, and buried.[63]  In 1986, EPA Region 9’s Emergency Response office, and DOH assessed the area and found the surrounding soil was contaminated with 2,4-D, 2,4,5-T and dioxin.[64]  Dioxin contamination is very serious and is known to cause severe illness and even death.[65]  On March 6, 1998, DOH inspectors visited KARC and discovered that the twelve drums containing soil contaminated with dioxin, which were placed in a locked shipping container approximately 100 yards from the excavation site back in 1986, were still there.[66]

Through an administrative order on February 19, 1999, DOH assessed a total penalty of $1,815,743 for UH’s RCRA violations.  The parties are now in the process of negotiating a consent decree, whereby the administrative penalty will be reduced in exchange for UH's compliance with conditions yet to be determined by the agreement.[67] Ed: [See Epilogue for updated information of the consent decree.]

III.  Analysis

 UH is not unlike other universities across the nation that have failed to comply with RCRA.  RCRA is an extremely complicated statute and is very costly to implement.  In addition, it is difficult for universities to stay abreast of state regulations and how they relate to federal regulations.  Industrial companies are much more aware of RCRA and its requirements because hazardous waste is often a major byproduct of manufacturing plants and industrial operations.  The complex statutory scheme of RCRA can sometimes catch universities off guard since a university’s primary goal is education, not profit, and RCRA is not a major part of its operation.  According to Tim O’Callaghan, UH’s Environmental Compliance Officer, the EPA has recently targeted universities because it found that many universities are not in full compliance with the state and federal requirements of RCRA.[68]  The next section will discuss some of the unique obstacles universities face in complying with RCRA.

A.     Obstacles Universities Face In RCRA Compliance

 RCRA was enacted primarily to regulate facilities or businesses that operate for profit,[69] which can range from large-scale manufacturing operations to small businesses like a dry cleaning shop.  Universities differ from the typical RCRA-regulated business in several important ways.  Educational institutions are constrained by limited budgets; are typically situated in a noncontiguous manner, making storage and transportation of hazardous waste difficult; and generate a large variety of wastes in small amounts, which makes disposal of hazardous waste nearly impossible.

 First, a university is an institution of higher learning with a mission of providing quality education to its students.  Unlike businesses that operate for profit, public universities frequently face constant downsizing and budget cuts.[70]  Competition between departments for funding is fierce and officials are often forced to cut much needed programs.[71]  Because of the complexity of hazardous waste regulations, many universities, including UH, have had to retain a full-time staff and department to handle, track, and dispose of hazardous waste and to ensure that the university is in compliance with both federal and state regulations.[72]  This can be a significant burden on universities when funds are tight and departments are fiercely competing for limited funds [JT2] .  Moreover, if a university is not in compliance with RCRA, it may be assessed a penalty and will probably be required to implement costly waste minimization and training programs.[73]

Another unique feature of universities in the hazardous waste context is that universities handle a large variety of wastes compared to the average RCRA facility.  The typical facility normally produces only a few types of hazardous waste, but in large volumes.[74]  For example, a dry cleaning business handles only a few chemicals utilized in the cleaning process, but in large amounts.[75]  In contrast, universities handle thousands of different chemicals (for laboratory experiments and other educational purposes) but in relatively small quantities.[76]  This makes it very difficult for universities such as UH to comply with RCRA because, as an LQG, UH has only 90 days to either treat or dispose of hazardous wastes once they can no longer be used.[77]  Since UH does not have the facilities to treat the waste on-site, it must ship the waste to an EPA-approved TSDF.[78]  A large problem exists for UH because there are no EPA-approved TSDFs in Hawai`i.[79]  This means that not only does UH have to arrange for shipment of all the chemicals to the mainland, but as a public university, it must put each shipment out to bid.[80]  Since UH has approximately 600 laboratories with as many as 10,000 different chemicals, it is not feasible for shipping companies to bid on an annual contract, and thus, bids must be submitted for each shipment.[81]  The bidding process can take over a month, and thus imposes an almost impossible burden and time pressure on UH’s compliance with RCRA’s 90-day storage limitation.[82] 

University campuses are also uniquely situated because they usually consist of several buildings located on different properties or divided by public roads.  The UH Mānoa campus is dissected by both University Avenue and Dole Street and also includes several research facilities located off the main campus.[83]  This noncontiguous configuration is significant because generators on one contiguous piece of property require only one EPA ID number.[84]  In the case of UH, however, where the generators may be separated by a public road, or located on another piece of property, multiple EPA ID numbers must be assigned, and the University must comply with transporter standards when hazardous waste is shipped from one non-contiguous portion of campus to another.[85]  EPA has recognized this difficulty and formulated an exception to the EPA ID requirement when the waste is being shipped directly across the street.[86]  This exception does not, however, cover laboratories or research facilities that are not located on campus.  Thus, RCRA’s strict transportation requirements “make it difficult for universities to consolidate waste at a single location for off-site shipment.”[87]

B.     Hazardous Chemicals Used By Universities Can Have Severe Health Impacts

Although universities use hazardous chemicals in small amounts for educational and experimental purposes, many of the hazardous chemicals used by universities are extremely dangerous and can have severe health impacts.  UH was cited for its improper storage of four extremely dangerous chemicals: mercury, picric acid, Agent Orange, and dioxin-contaminated soil.[88]  Mercury is particularly dangerous to humans when ingested or absorbed by the skin or mucous membrane.[89]  Not easily disposed of, it is a cumulative poison that can cause skin disorder, hemorrhage, liver and kidney damage, and gastrointestinal disturbances.[90]  Because of the dangers of mercury, more than ninety nations have approved an international ban on the dumping of mercury in the ocean.[91]

Picric acid is another highly dangerous chemical found at UH, normally used for the staining of cells during biology experiments.[92]  It is highly explosive when it is combined with metals such as copper, lead, zinc, and iron.[93]  It will also react with alkaline materials including plaster and concrete to form explosive materials.[94]  This material is very shock sensitive and corrosive to metal containers.[95]  UH's improper storage of picric acid was extremely dangerous because the chemicals in the storage areas were largely unmarked and stored near picric acid.

The most dangerous chemicals stored at UH's facilities are Agent Orange and dioxin, which were found at its Kauai facility.  Agent Orange is a 50/50 mix of two chemicals – 2,4-D and 2,4,5-T – the latter chemical containing the most toxic form of dioxin.[96]  Agent Orange was used by the U.S. military as a defoliant to destroy mangrove jungles during the Vietnam War.[97]  Along with extreme ecological effects, dioxin is known to cause three cancers:  soft-tissue sarcoma, non-Hodgkin's lymphoma, and Hodgkin's disease.[98]  Although not yet proven, dioxin is also alleged to cause respiratory cancer, prostate cancer, and multiple myeloma.[99]  Other proven health effects of dioxin include immune disorders, lowered sperm count, diabetes, malformations, and other reproductive and developmental effects.[100]  In addition, dioxin damage does not stop with the first generation; researchers have documented reproductive damage, including cancer, spina bifida, and immune problems in offspring of people exposed to dioxin.[101]

C.    The Use Of Consent Decrees As A Possible Solution

Over the years, many public and private universities have been cited by the EPA for violating RCRA, and the EPA has typically responded by entering into consent decrees with these institutions.[102]  Consent decrees are often favored because they usually further the interests of both parties.  In Hawai`i too, rather than pursue complex and costly litigation, EPA and DOH often negotiate consent decrees with violators to exact certain penalties and to ensure future compliance.  The violator benefits because the administrative penalty is often drastically reduced and the enforcing agency imposes conditions to assist the violator with future compliance of RCRA.  At the same time, the enforcing agency is still able to recover a penalty fee and use the consent decree to require implementation of better waste minimization plans, training programs, and facilities.[103]  Institutions such as the University of Texas at Austin, the University of Wyoming, Washington State, Duke, Yale, and the U.S. Coast Guard Academy have all been sanctioned for violating RCRA in much the same way as UH.[104]  In each of these cases, the universities were not required to pay the full administrative fine, but rather, negotiated a consent decree with the enforcing agency.[105] 

A consent decree is a court-approved agreement between the two parties to settle the case and is binding upon the parties as if it were the judgment of the court.[106]  The consent decree usually consists of two parts:  the penalty and conditions.  In exchange for reducing the penalty amount, the violator has to comply with conditions set forth by the enforcing agency.  The DOH also requires violators to propose supplemental environmental projects (“SEPs”) to remedy existing problems and to ensure the violator’s dedication to compliance in the future.[107]  The DOH reviews the SEP to ensure that there is a nexus between the violation and the project, and that the SEP will serve the ultimate purpose of facilitating compliance with RCRA.[108]  The DOH may also attach other conditions as a part of the consent decree to ensure future compliance.  Often, the costs of implementing the SEPs end up being much more than the administrative penalty.  Rather than the money going to the enforcing agency in the form of a penalty, however, the institution uses the money to implement programs to benefit its own operation and compliance. 

Although the administrative penalty is reduced substantially, the stigma associated with a citation and the sting of the penalty is in no way reduced.[109]  Both EPA and the DOH have penalty policies whereby the violator is required to pay at least a certain amount or a percentage of the original sanction as a cash penalty, which increases as the number of violations increases.[110]  Moreover, SEPs often cost thousands of dollars to implement and universities ultimately spend substantial amounts to avoid future penalties.[111]  Thus, in jurisdictions where the enforcement agency is strong, like EPA, and consistently pursues violators, consent decrees can be extremely effective.[112] 

Consent decrees, unfortunately, are not infallible.  Where the enforcement agency is not consistent in enforcing RCRA and is not effective in negotiations, a consent decree can prove to be a tool for violators to circumvent the system.[113]  According to John Oki, a hazardous waste law expert, the DOH has not been aggressive in pursing RCRA violations in the past; therefore, it is difficult to determine whether its consent decree with UH will be written in a way to favor UH.[114]  The strength of the consent decree will depend heavily on the negotiations between the parties and how serious the DOH is about enforcement.[115]  In Oki’s experience as a professor and environmental attorney, however, consent decrees are very effective, and their terms can be quite onerous.[116]  Another disadvantage of consent decrees is that, like litigation, they can often take years of negotiation to finalize.  EPA and the DOH first discovered UH’s RCRA violations through an inspection done on April 6, 1998.[117]  Today, nearly two and a half years later, the parties still have not finalized the consent decree.[118]

Despite its defects, many universities have found consent decrees advantageous in overcoming RCRA citations.  For example, Yale agreed to pay a cash penalty of $69,570 for various RCRA violations and undertake SEPs costing $279,205.[119]  Yale’s SEPs required it to test undergraduate chemistry labs in an effort to reduce pollution, implement a waste management training program, and renovate a building to be used as a lead poison resource center for the community.[120]  Washington State University agreed to implement a hazardous waste recycling program on campus that would cost about $87,500 in exchange for a reduced fine of $22,500.[121]  Duke University was cited for storing mercury and dioxin hazardous waste longer than the 90-day limitation.  For this less serious violation, EPA fined the university $10,000, required it to close down the unpermitted storage facility, and perform an external audit of its environmental protection program costing $15,000.[122]

D.    UH’s Attempts To Move Toward Compliance

Although negotiations between the DOH and UH are still in progress, UH has spent a significant amount of money on clean up costs, and has appropriated nearly $800,000 to implement anticipated SEPs.[123]  After its citation in February of 1999, UH hired an independent contractor to cleanup the Bilger Shelter, the EPF, and its Kauai Agricultural site, which cost an estimated one million dollars.[124]  According to Roy Takayama, the Director of EHSO, UH has adopted a varitey of programs designed to strengthen its hazardous material management.  Some of these improvements include requiring its employees to attend mandatory training sessions, hiring three new full-time employees, and conducting regular RCRA facility audits.[125]  EHSO also plans to hire an independent consultant to conduct a comprehensive audit when the consent decree is finalized.[126]

 EHSO also retained private counsel, with environmental expertise, to handle its RCRA citation, because the University’s General Counsel Office had not then been established.[127]  Moreover, the attorneys who now comprise the University’s in-house counsel team are not specialists in environmental law and were hired to advise and represent the University in a variety of legal matters.[128]       

EHSO funds its various programs through the University’s general funds.[129]  After UH’s RCRA citation and administrative penalty of over one million dollars, along with the EPA’s recent investigations of other universities, strict environmental compliance has now become a priority at UH.[130]  According to Roy Takayama, obtaining funding for the cleanup of hazardous wastes and implementation of environmental compliance programs is no longer a problem.[131]  Because the University has already appropriated funds to implement SEPs, EHSO does not anticipate any delays in implementing new policies.

UH is in the process of negotiating a consent decree with the DOH for its RCRA citation.  The parties in this action are likely to reach an agreement to reduce substantially the assessed $1,815,743 administrative penalty in exchange for SEPs.  The SEPs required of UH could range from implementing a waste management training program, implementing a waste minimization or recycling plan, performing an environmental audit, or even establishing a resource center for the community related to hazardous wastes.  The consent decree may also require UH to implement a waste exchange system similar to Washington State University (“WSU”).  WSU agreed to implement a hazardous waste recycling program in exchange for a reduced penalty.  As part of this program, instructors, researchers, and students from one department could use and reuse materials from other departments.[132]  Reusing the wastes helps reduce the amount of hazardous waste WSU handles and saves money on chemical purchasing, transportation, and disposal of hazardous waste.[133]

E.     What Should Be Done To Increase RCRA Compliance For UH And Other Universities?

A consent decree can be an extremely useful remedy, but it does not solve many of the compliance problems institutions like universities face.  As the Director of EHSO indicated, the University does not need more funding for environmental compliance; it does not need new facilities and has already hired additional staff.[134]  What the university needs is a simplification of the regulations.[135]  This in no way suggests that EPA should lower its standards, but, rather, publish practical guidelines for institutions such as universities to follow.  RCRA was initially established to regulate industry and commercial activities.[136]  The EPA is now trying to apply an industry standard to universities.  A commercial enterprise produces a distinct product, or set of products, and uses a defined set of chemicals.  It thus becomes a specialist in its field and employs people who possess the expertise and experience to deal with respective regulations.[137]  Universities specialize in education; they hire experts in education.  They are not equipped with the special knowledge to handle complicated environmental regulations.[138] 

As discussed above, the primary obstacle universities face is vast amount of different chemicals handled in small quantities, which makes compliance with some provisions of RCRA extremely difficult.[139]  For example, the environmental compliance officer at UH has to complete forms for each and every one of the thousands of chemicals handled annually by UH.[140]  Just this one requirement alone imposes an extreme burden on a university that does not exist for commercial entities.[141]  Universities need to bring these difficulties to the attention of EPA and state enforcement agencies so they can work together to simplify hazardous waste regulation or carve out exceptions for institutions like universities.[142]  The EPA has made such an attempt to simplify its regulations without lowering its standards by creating an exception to RCRA’s transporter requirements when hazardous waste is being shipped directly across streets or along a street.[143]  Consideration of other similar changes is warranted.

IV.  Conclusion

 The problems that institutions of higher learning face in complying with RCRA are not uncommon.  The EPA and state enforcement agencies have only recently learned that many universities are not in full compliance with hazardous waste regulations.[144]  As a result, there has been a sudden increase in the number of university citations as enforcement agencies increase their inspection of these institutions. 

Because of the extremely hazardous chemicals used by universities, the EPA should consider devoting additional resources to university compliance programs and guidelines.  University professors and laboratory technicians usually lack the legal expertise on how to fully comply with RCRA and other regulations.  With such dangerous chemicals being used by students or at sites where students may suffer exposure, hazardous waste management programs must be dependable.  Unfortunately, RCRA is an extremely complex statute, which few people understand.  Universities need to voice their concerns to state enforcement agencies and EPA so these agencies can help remedy the situation by publishing materials to guide universities and simplify the regulations, without lowering their standards.

Establishing guidelines to explain RCRA and simplifying regulations by itself, however, will not result in sound hazardous waste management.  To comply with today’s strict and complex environmental regulations, universities should establish separate Environmental Compliance Departments to ensure full compliance.  University counsel should also be aware of hazardous waste regulations and its exemptions and work in conjunction with environmental compliance personnel to develop waste management plans and training programs.  By maintaining an organized system of labeling, tracking, storing, and disposing of hazardous waste, universities can avoid costly penalties and disastrous mistakes.

V.  Appendix A

Appendix A provides a table of several universities that have violated RCRA, the administrative penalties imposed, and SEPs implemented by the violators.

A.     Table Of Other University Violations[145]

	Penalty	Cost of SEPs	SEPs	Violation
University of Texas at Austin			Ÿ       Implement waste minimization plan Ÿ       Sponsor waste minimization seminars for other institutions	Failed to comply with waste minimization and reporting requirement
University of Wyoming	$43,000		Ÿ       Implement a comprehensive waste minimization plan Ÿ       Personnel training scheme for workers that handled hazardous waste	Illegal treatment and disposal of waste, including open burning treatment units
Washington State University	$22,500	$87,500	Ÿ       Implement waste recycling program Ÿ       Program to reuse chemicals Ÿ       Develop a waste exchange plan	Various RCRA violations
Duke University	$10,000	$15,000	Ÿ       Close the unpermitted storage unit Ÿ       Environmental audit of all its environmental protection programs	Storing mercury and dioxin hazardous wastes longer than the 90-day limitation without a permit.
Yale University	$69,500	$279,205	Ÿ       Testing of lab in an effort to reduce pollution Ÿ       Implement a waste management training program Ÿ       Renovate a building to be used as a lead poison resource center to promote public health in community	Various RCRA violations
US Coast Guard Academy		$259,000	Ÿ       Remove 2 underground storage tanks and replace with 1 above ground tank, as a central filling station Ÿ       Build a concrete container storage area to replace the existing storage facility	Failure to comply with various RCRA waste management and employee training requirements