By Steven Siros

An Illinois company that collected and crushed fluorescent lamps in accordance with Illinois' universal waste regulations found out the hard way that compliance with the law is no defense to an U.S. EPA  enforcement proceeding. On April 23, 2010, U.S. EPA initiated an enforcement proceeding against Mercury Vapor Processing Technologies and several other defendants. U.S. EPA alleged that these companies were improperly treating fluorescent lamps in contravention of the federal hazardous waste regulations and sought a civil penalty of $743,293. In response, defendants made the reasonable argument that their operations were in compliance with Illinois' universal waste regulations and therefore were exempt from regulation under Subtitle C of RCRA. 

At this point, a brief history lesson is in order. On January 31, 1986, U.S. EPA granted final authorization to Illinois to administer and enforce its own hazardous waste program in lieu of the federal Subtitle C program. At that time, fluorescent mercury-containing lamps were classified as hazardous wastes. On May 11, 1995, U.S. EPA published its  federal universal waste rule which excluded certain categories of wastes from the definition of hazardous waste. On January 6, 2000, U.S. EPA added fluorescent mercury-containing lamps to the definition of universal wastes. On August 1, 1996, Illinois adopted its own version of the federal universal waste rules and subsequently added fluorescent mercury-containing lamps to its definition of universal wastes (although Illinois' version of the regulation for some limited treatment options that did not specifically track the conditions set forth in 40 CFR Part 273). At the present time, U.S. EPA has yet to authorize any portion of Illinois' universal waste rules. 

In light of this history, the administrative law judge found that since U.S. EPA has not yet authorized Illinois' universal waste rules, it is entitled to enforce Illinois' 1986 hazardous waste regulations which contain no exemption for fluorescent lamps. The administrative law judge tempered her ruling somewhat by noting that defendants would be allowed to argue as an affirmative defense that they lacked fair notice that U.S. EPA had not authorized Illinois' program.  Defendants subsequently filed motions for summary judgement raising this very argument; these motions remain pending.   

The take away is that until such time as U.S. EPA authorizes Illinois' universal waste rules (or until the administrative law judge's decision is overturned), the most prudent course of action will be for Illinois companies to manage universal wastes as hazardous wastes. For a copy of the decision, please click here.