Many recyclers are unaware that they can be held liable if a consuming facility they have shipped to is found to contain hazardous wasted that needs to be cleaned up. It does not matter if the recycler was not the one who shipped the hazardous waste. There are steps, however, that can be taken to protect your company.
To defend yourself against what is known as Superfund liability you must be able to demonstrate that your recycling company met all of the following criteria at the time of a transaction involving recyclable material (the legal defense was granted under the federal Superfund Recycling Equity Act or SREA):
- The recyclable material met a commercial specification. You can demonstrate that by referencing specifications that industry trade associations publish, such as ISRI’s Scrap Specifications Circular, or other historically or widely used specifications.
- A market existed for the recyclable material involved in the transaction. Evidence of a market can include a third-party published price (including even a negative price), more than one buyer or seller for material for which there is a documentable price, and a history of trade in the recyclable material.
- A substantial portion of the recyclable material was made available for use as a feedstock for the manufacture of a new salable product. On this point, you need only demonstrate it is common practice for your recyclable materials to be available for use in the manufacture of a new salable product.
- The recyclable material could have been a replacement or substitute for a virgin material, or the product to be made from the recyclable material could have been a replacement or substitute for a product made, in whole or in part, from a virgin raw material. In this case, you must be able to demonstrate the general use for the feedstock material, not that a specific unit was incorporated into a new unit. Given that some consuming facilities use recyclable material exclusively as their raw material, there are instances in which you do not need to show the recyclable material directly displaced a virgin material as the raw material feedstock.
- For metals, the recycler did not melt the scrap metal prior to the transaction. Welding, torchcutting, sweating, and similar activities are not considered “melting” for the purposes of SREA.
- For batteries, the recycler did not recover the valuable components of a battery and met all applicable federal regulations in effect at the time of the transaction. The liability relief applies only to those who collect, store, or transport spent batteries.
- The recycler must demonstrate it took “reasonable care” to determine the environmental compliance status—as it applies to the recyclable material—of the facility that received the recyclable material. To qualify for the SREA defense, you must show you did not send your recyclable material to a facility you had an objectively reasonable basis to believe was not in substantive compliance with environmental laws and regulations.
As a benefit, ISRI members have the ability to order reduced-rate reports that help demonstrate “reasonable care.” The SREA Reasonable Care Compliance Program offers reports on consuming facilities that include publicly available, comprehensive environmental compliance information compiled from more than 1,200 federal, state, and local databases; FOIA requests; and facility questionnaires. It also includes supporting back-up data for the information in the report. Reports may be ordered now through May 31.
For more information, or assistance in ordering your SREA reports, contact Shelley Backstrom at (202) 662-8508 or Tom Casey at (202) 662-8532.