Hazardous Waste Transporters Beware !

The Oregon Supreme Court upheld a penalty assessed against a hazardous waste Transporter for failure to manifest hazardous waste regardless of whether it reasonably relied on a determination by the generator that the waste was not hazardous. This ruling suggests an affirmative duty on transporters to make their own determinations.

By way of background, the law requires that hazardous waste be accompanied by a manifest identifying the material from its creation, transport and ultimate disposal. This is often referred to as “cradle to grave” management.  Liability may be imposed at any stage from cradle to grave for failure to properly manifest the waste.

ORRCO was penalized $118,800 for transporting a methanol-water mixture that the generator failed to identify as hazardous waste, and which later was determined to be. ORRCO sought review in the Court of Appeals but did not dispute the commission’s finding that the water/methanol waste it transported and treated was in fact a hazardous waste. Instead, ORRCO argued only that the commission erred by interpreting the manifest and permit requirements to impose strict liability. The Court of Appeals affirmed the commission’s order and its interpretation. The Supreme Court agreed, relying on the fact that Oregon lawmakers expressly chose to require evidence of culpable mental states for “extreme violations” and criminal offenses but not for “simple violations.”  The Court concluded that lawmakers intended to authorize the DEQ to bring enforcement actions without evidence of a culpable mental state.  Interestingly, the culpable mental states referenced as the basis for more serious violations do not include mere negligence, but the Court ignored that fact.  Perhaps more persuasive was the Court’s finding that no federal authority cites a negligence standard as being applicable to a transporter.  The Court had no problem differentiating the DOT standard that requires “knowing” conduct for a transporter violation.

As a practical matter, if a transporter relies on the generator’s characterization of the waste, the transporter could seek indemnification to account for the risk that the characterization is wrong. Of course this may increase non-hazardous waste transportation costs, and, if the generator does not have financial resources, the transporter may find it necessary to change its business practices in some cases.