• Healthcare Facilities Facing Significant Fines from EPA for Failure to Properly Manage Hazardous Waste
  • February 17, 2004 | Authors: John J. Bradford; Edward Moye Callaway; Robert J. Martineau
  • Law Firm: Waller Lansden Dortch & Davis, LLP - Nashville Office
  • On January 27, 2004, the Environmental Protection Agency ("EPA" or the "Agency") cited Memorial Sloan-Kettering Cancer Center in New York for violating numerous hazardous waste management requirements, seeking $214,420 in penalties. EPA discovered violations of the hazardous waste regulations at Sloan-Kettering during a March 2003 inspection. The violations included improper storage and disposal of chemotherapy and dental wastes, as well as general failure to determine whether certain substances were hazardous wastes.

    This episode is the latest example of even premier facilities being caught by EPA's focus on environmental compliance at healthcare facilities. In 2002, EPA undertook its Hospital and Healthcare Initiative to ensure that hospitals and other healthcare facilities comply with environmental regulations.

    The initiative is a recognition that healthcare facilities contribute to the presence of mercury, dioxin, and other persistent bioaccumulative toxins in the environment. In fact, hospitals are the fourth largest source of mercury discharged into the environment. They also generate a wide variety of hazardous wastes, including chemotherapy and antineoplastic chemicals, solvents, formaldehyde, photographic chemicals, radionuclides, and waste anesthetic gases. In addition, hospitals produce two million tons of solid waste annually, which is one percent of the total municipal solid waste in the United States.

    Many healthcare facilities are not aware of their responsibilities under various environmental laws or have failed to implement effective compliance strategies. As part of the initiative, EPA sent letters to 480 healthcare facilities urging prompt disclosure of environmental violations and warning of imminent inspections. The initiative encourages facilities to take advantage of EPA's policy of reducing penalties for violators who conduct self-audits and report their findings to the Agency.

    Hospitals and other healthcare facilities that take advantage of the Agency's voluntary self-audit program can investigate and disclose environmental violations to EPA and, if certain conditions are met, receive a partial or complete reduction in financial penalties. The conditions are designed to ensure that human health and the environment are not compromised and include the prompt disclosure and correction of violations, the remediation of environmental harm associated with the violations, and the implementation of steps to prevent the recurrence of the violations. To date, fourteen healthcare organizations have entered into voluntary self-audit disclosure agreements with EPA.

    EPA's final policy restates the Agency's practice of not routinely requesting environmental audit reports. It is important for healthcare facilities to recognize, however, that disclosing an audit report to EPA makes the report publicly available. One approach to maintain attorney-client privilege and to maintain control over the findings of an audit is to have outside counsel retain the engineering firm that conducts the audit.

    To be most effective, an audit should be conducted within a structured environmental management system and integrated with overall management activity. An environmental management system can provide a framework for managing environmental responsibilities in a systematic way. Specifically, an effective environmental management system assures compliance through the identification of legal requirements, the development of company-specific procedures for compliance, and the conduct of audits to assure management that the company is following the established procedures.