The New England Office of the U.S. Environmental Protection Agency (EPA) has recently increased its enforcement efforts for hospitals and other health care facilities due to concerns about possible environmental violations at these facilities. EPA New England (Region 1) has taken this action after EPA Region 2 discovered numerous violations at hospitals in New York and New Jersey.
According to EPA New England, there are more than 300 hospitals and thousands of other health care facilities in New England, and the potential environmental and health impacts of these operations can be significant. EPA New England states that hospitals use a wide range of toxic chemicals, generate large quantities of waste and consume vast amounts of energy and water. According to EPA Region 2, hospitals contribute to the presence of mercury, dioxin and other persistent bioaccumulative toxics in the environment, generate a wide variety of hazardous wastes, are the fourth largest source of mercury discharged into the environment and produce one percent of the total municipal solid waste in the United States.
Key Areas of Concern
EPA New England has identified a number of hospital and health care facility functions and activities that have the potential to cause environmental violations, including toxic chemical use and waste management, as well as laboratories, power plants and vehicle maintenance operations. Among the most important environmental compliance topics identified by EPA New England as particularly relevant to hospitals and health care facilities are issues relating to hazardous waste management. These include the following: mischaracterization or lack of characterization of waste streams; improper characterization of products as still usable rather than as waste; inadequate or inaccurate marking/labeling of containers; accumulation of waste in a manner that does not meet satellite accumulation requirements; storage of incompatible wastes together; incomplete or inadequate inspections of hazardous waste accumulation areas; unauthorized storage of hazardous waste for over 90 days; failure to recognize changes in hazardous waste generator status from small quantity to large quantity; inaccurate, inadequate or outdated contingency plans; failure to properly maintain hazardous waste manifests; inadequacy or lack of land disposal restriction notices; and failure to meet recordkeeping requirements.
Hospital and health care hazardous wastes may include mercury and mercury-containing devices and products; photographic/x-ray fixer solutions and silver recovered from fixer; x-ray film containing silver or other metals; x-ray shielding putty; ethanol and formaldehyde/ethanol solutions; spent, off-specification or excess laboratory chemicals; chemotherapy drugs; waste, excess and off-specification paints and cleaning products; fluorescent and other light bulbs; batteries; computers, monitors, circuit boards and other lead-bearing electronics; compressed gases; waste pesticides and fungicides; mixed radioactive wastes; and spill residues.
EPA New England has also identified several other key areas of potential noncompliance, including the following: water quality ─ wastewater discharges, runoff from existing facilities, storm water discharges from construction sites and groundwater dewatering discharges; asbestos and lead-based paint removal; air pollution control ─ fuel-burning heating systems and solid and infectious waste incinerators; and fuel storage tanks.
The EPA notes that infectious waste generation and management is also a major environmental compliance issue for hospitals and other health care facilities. However, infectious waste requirements are administered at the state level, so state environmental or public health agencies, not the EPA, are responsible for enforcement of such requirements.
Current EPA Activities
EPA New England’s current efforts are focusing on inspections of selected hospitals to determine the magnitude of environmental noncompliance at New England health care facilities. If these efforts indicate that environmental noncompliance is likely to be widespread, it is possible that the EPA will proceed with a more aggressive and comprehensive enforcement initiative.
If the EPA discovers violations of environmental requirements, it can make use of a range of enforcement options. These include issuance of a warning letter or notice of violation, issuance of an administrative order with or without a penalty, and referral to the U.S. Department of Justice for civil or criminal judicial action.
Actions to Avoid or Minimize EPA Enforcement Action
In light of EPA New England’s increased enforcement efforts for hospitals and other health care facilities and the possibility of even more aggressive enforcement action if the EPA concludes that noncompliance is widespread, hospitals and health care facilities should review their environmental compliance and take steps to address any problems identified. This review can be conducted entirely by in-house environmental, health and safety personnel or other appropriate staff, or it can involve the assistance of an independent environmental auditor. In addition, the compliance review can be performed with the assistance of legal counsel, who can advise as to the appropriate response to and documentation of the findings and the availability of legal privileges to maintain the confidentiality of these findings.
Hospitals and other health care facilities should recognize that a compliance review could result in the discovery of conditions (e.g., a spill of hazardous materials) that trigger requirements to notify governmental authorities, and such notice may have to be transmitted within a short time period after discovery of the condition. Hospitals and other health care facilities should also note that, while they are not obligated to inform governmental authorities of all of the findings of a compliance review, the review might identify conditions requiring prompt corrective action even in the absence of a notification obligation.
If a hospital or other facility is concerned about the possibility of an EPA inspection or enforcement action, it may wish to disclose its noncompliance with applicable requirements in accordance with the EPA’s audit policy, which is entitled “Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations.” Under the policy, the EPA will waive most civil penalties and will not recommend criminal prosecution, provided the facility identifies the violation through an environmental audit or compliance management system, promptly discloses the violation to the EPA, expeditiously corrects the violation and satisfies certain other requirements.
Finally, EPA New England has established the Healthcare Assistance Program to provide compliance assistance to healthcare facilities. This program provides facilities with information to improve their understanding of and compliance with environmental regulations, to help them reduce the environmental impacts of their operations and to help them realize cost savings and environmental benefits through improvements in recycling, energy efficiency and water conservation.