Contracting for Hazardous Materials Disposal

Author(s):

Ernest T. Lee, C.P.M.
Ernest T. Lee, C.P.M., Purchasing Manager, Texas Guaranteed Student Loan Corporation, Austin, Texas 78761, 512/873-2915

79th Annual International Conference Proceedings - 1994 - Atlanta, GA

ABSTRACT. OSHA standards and most state laws mandate that disposal of hazardous materials be in keeping with the guidelines of all federal, state and local jurisdictions. The user's responsibility runs from "the cradle to the grave." The common interpretation of "cradle to grave" is from the creation of the material until it is either completely destroyed or otherwise becomes inert. Users cannot delegate their responsibilities under the Act. Since some hazardous materials do not degrade for thousands of years, the implications are tremendous. The OSHA standard also covers such responsibilities as training; informing employees of hazards; developing a facility list of hazardous materials used at the site; informing local and state officials of the amount materials stored, generated or used at the facility; labeling of materials; and procedures for the Material Safety Data Sheet (MSDS). This paper provides a method for contracting with hazardous materials disposal companies. Merely contracting with a company to safely dispose of materials does not relieve the user of the ultimate "cradle to the grave" responsibilities. Even an official certificate of disposal provided by most disposal companies will not relieve a user for responsibility of future exposure. The following sample contract, if followed, will help mitigate the user's risk.

INTRODUCTION. This agreement is entered into as of this __ day of __, 19__, by and between (user) , (hereafter referred to as "generator") and (disposal company) , (hereafter referred to as "contractor") of (city) . Whereas, Generator in the course of its business, generates certain waste materials which require disposal;
Whereas, Contractor has facilities or access to facilities and the ability to transport, dispose of, treat, and otherwise deal with the waste material in a lawful manner;
Now Therefore, in consideration of the covenants, mutual promises, and agreements set forth herein, the parties agree as follows:

I. CONTRACTOR SERVICES. Contractor shall transport, process, treat, and dispose of the waste material as set forth in Exhibit A hereto in a careful, workmanlike manner. Contractor shall take all necessary and appropriate precautions as to avoid injury to persons and damage to property and natural resources.

II. COMPENSATION FOR SERVICES.

1. Fee - Generator shall pay contractor for transporting, processing, treating, and disposing of the waste materials in accordance with the price and terms stated in Exhibit B hereto.
2. Taxes - The foregoing fees shall be inclusive of local, state, or federal taxes, including other tariffs, fees, surcharges, or other charges.
3. Time of Payment - Generator agrees to make payment within thirty (30) days after delivery of an official Certificate of Disposal.

III. WASTE ANALYSIS.

1. Generator - For all waste material to be disposed of by contractor, the generator shall, in addition to any labeling, placarding, marking, manifests, or other documentation required by law, provide contractor, in advance, and upon request, a representative sample of the waste material, and with a detailed written physical and chemical description or analysis of the waste material to be dealt with by the contractor including a listing of the unique chemical characteristics and processes which generated the waste, if such exist, that would be of material significance to the proper handling of such waste materials. Material Safety Data Sheets (MSDS) for waste materials may suffice for such identification. Generator understands that contractor is relying upon the certified description of the waste material contained in Exhibit A and that contractor may or may not analyze the representative sample provided by the generator.
2. Contractor - Contractor shall have the right to perform independent analysis of waste material delivered by generator under this contract at any time at the expense of the contractor.

IV. NON-CONFORMING WASTE MATERIAL.

1. Waste material shall be considered non-conforming if:
   1. it is not in accordance with the analysis, descriptions, specifications or limitations set forth in Exhibit A; or,
   2. it has constituents or components, not specifically identified in Exhibit A which,
      1. increases the nature or extent of the hazard or risk undertaken by the contractor in agreeing to handle, store, transport, off-load, recycle, and/or otherwise dispose of the waste material, or
      2. consists of materials which the contractor's facility has not been designed or permitted for handling, storage, recycling and/or disposal.
2. Rejection of Waste Materials - In the event contractor shall determine that the waste materials delivered by generator is not in conformity with the waste materials listed in Exhibit A, or is otherwise determined to be non-conforming, contractor shall immediately notify the generator and the parties shall arrange for the satisfactory disposition of such non-conforming waste materials. Non-conforming waste materials shall remain with the generator.
3. Independent Analysis - Contractor may, at any time, upon reasonable grounds to believe that the waste material furnished by the generator is not in conformity with the analysis listed in Exhibit A, so notify the generator and require that an independent analysis or sample or samples of such waste materials be performed by a qualified, reputable, independent testing authority acceptable to both parties. The results of such chemical analysis shall be furnished to the generator and the contractor. In the event the independent chemical analysis shows that the material in question is as described in Exhibit A, the contractor shall pay the expenses of the independent analysis. In the event that the independent analysis shows that the materials are non-conforming, the generator shall pay for the independent analysis.

V. TITLE AND LIABILITY.

1. Conforming Waste - Title to and full responsibility for conforming waste shall pass from generator to contractor when the loading operations of the waste materials into the contractor's conveyance has been completed, and said vehicles are ready to leave the facility of the generator.
2. Non-Conforming Waste - Title and liability for non-conforming waste materials shall at all times remain with the generator, unless, upon discovery that the waste materials are non-conforming, contractor agrees in writing to perform services under this agreement notwithstanding.

VI. COLLECTION AND TRANSPORTATION.

1. Suitable Transport. Contractor shall provide suitable transportation to remove waste materials described in Exhibit A, and transport such materials to the disposal site. Contractor shall comply with all applicable statutes, rules, regulations, and ordinances of applicable federal, state and local jurisdictions. Contractor shall require all carriers it may use to provide insurance coverage equivalent to that specified in Paragraph IX below. Contractor shall provide certification of insurance coverage of such carriers to generator.
2. Loading - Unless otherwise agreed to in writing, contractor shall be solely responsible for loading the waste material on transporting vehicles. Contractor assumes full risk of loss as to equipment and premises of generator and to transportation vehicles furnished by the contractor.
3. Safe Work Place - Generator shall provide a safe working environment for any contractor or employee, agent or subcontractor who must enter the generator facility in the course of performing services under this agreement. Generator shall provide safe, satisfactory roadways and approaches to and from the point of loading. While on the generator facility premises, contractor employees, agents, and subcontractors shall comply with all generator's safety precautions, particularly those related to the handling of waste material, provided such procedures are conspicuously and legibly posted in the work area, or have been furnished to the contractor by generator prior to the commencement of work at the generator facility.
4. Corrective Actions - Contractor and generator each agree to take whatever actions are necessary to eliminate, abate and rectify any hazardous, unsafe, unhealthy or environmentally unsound conditions resulting from activities and/or operations within its control.
5. Emergency Procedures - In the event an emergency occurs while a contractor employee, agent or subcontractor is on premises of the generator facility, generator shall make available to such person or persons emergency services, including first aid to the same extent that such services would be available to a regular employee, agent or subcontractor of generator at the same facility.

VII. CONTRACTOR WARRANTIES. Contractor warrants and represents to the generator that:

1. Contractor understands the currently known hazards and risks which are presented to humans, property and the environment in the handling, storage, treatment, processing, transporting and disposing of the waste materials described in Exhibit A.
2. Contractor is engaged in the business of transporting, storing, treating, recycling, and disposing of hazardous waste materials, and has developed the requisite expertise for the handing of such.
3. Contractor will transport, haul, store, treat, recycle and/or dispose of the hazardous materials in full compliance with all valid and applicable statutes, ordinances, orders, rules and regulations of any federal, state and/or local governments in whose jurisdictions such activities are performed under this agreement.
4. Any disposal facility (or facilities) used for the treatment or disposal will have all permits, licenses, certificates or approvals, required by valid and applicable statutes, ordinances, orders, rules, and regulations of the federal, state, and/or local governments in which such facility is located, necessary to allow such facility to accept, treat, process or otherwise dispose of involved waste materials.
5. In the event the disposal facility loses its permitted status, or is involved in any proceeding which could result in the loss of its permitted status, during the term of this agreement, contractor will promptly notify generator of such loss, or possible loss, of permitted status, together with any materials currently waiting treatment, processing, or disposal by said disposal facility. Upon such notification, generator shall have the authority to recall the shipment, or request that the contractor dispose of the materials through other disposal facilities. This recall shall be in writing, and performed at no additional cost to the generator.
6. Contractor shall provide to generator, upon completion of treatment, processing, or disposal action, a Certificate of Destruction warranting that the waste material contained in a specific shipment was and has been disposed of as agreed, or otherwise rendered harmless, the method or such disposal, and the date and signature of the person or officer in charge of the actual disposal activity at the time disposal was completed.

VIII. GENERATOR WARRANTS. Generator warrants to the contractor that:

1. The description of the waste material contained in Exhibit A is true and correct in all material respects, fairly advises contractor of the hazards and risks presented to persons or the environment when exposed to the waste material and otherwise complies with all applicable material description requirements of local, state, and federal laws, rules or regulations.
2. The waste material presented for disposal will conform to the description provided in Exhibit A.
3. Generator will not, after its designation of the components of said waste materials in Exhibit A, mix the waste material with other materials or otherwise cause the alteration of characteristics or components of the waste material.
4. Containers of waste material which are supplied by generator when tendered to the contractor will conform to the container specification and container marking and labeling requirements provided in applicable local, state, and federal laws, rules, and regulations, including but not limited to, regulations established by the United States Department of Transportation and the Environmental Protection Agency.
5. Generator has obtained and will, during the term of this agreement, maintain all permits, licenses, certificates or approvals required by applicable local, state and federal laws, as are necessary to allow generator to hold its waste material on its premises and to lawfully tender copies to contractor upon request.
6. Generator will report promptly to contractor any information obtained by generator at any time during the term of this agreement, indicating that the waste materials presents or may present a hazard or risk to persons or the environment not disclosed in Exhibit A.

IX. INDEMNIFICATION.

1. Contractor Indemnification - Contractor shall indemnify, hold harmless and defend generator, its present and future officers, employees and agents, from such civil penalties, claims and causes for actions (including costs of defenses, settlement, reasonable attorney fees) as may be brought on account of death or bodily injury to persons, destruction or loss of natural resources; damage to or loss of property, both public or private; or any violation of federal, state or local laws, regulations or municipal ordinances, and which results from or arises out of contractor's negligence, willful misconduct, breach of warranty, or failure to perform services according to this agreement.
   
   Contractor's only duty to indemnify is inapplicable to the extent that such penalties, claims, or causes of action result from generator's delivery to contractor of waste material not conforming to the description or analysis set forth in Exhibit A.
2. Generator Indemnification - Generator shall indemnify, hold harmless and defend contractor, its present or future officers or directors, employees, or agents, from such civil penalties, claims, and causes for actions (including costs of defense, settlement, reasonable attorney fees) as may be brought on account of death or bodily injury to any person; destruction or damage of natural resources; loss or damage to property, both public and private; or any violation of federal, state or local laws, regulations, or municipal ordinances, and which results from or arises out of generator's negligence, willful misconduct, breach or warranty, delivery to contractor of non-conforming waste material, or failure of generator to perform its responsibilities under this agreement.
   
   Furthermore, generator shall indemnify contractor for any contractor losses, damages, or destruction of contractor's equipment, property, or injuries or death of any contractor employee or agent, which results from or arises out of generator's negligence, willful misconduct, breach of warranty, delivery to contractor of non-conforming waste materials, or failure of generator to perform its responsibilities under this agreement.

X. RIGHT TO INSPECT - Generator has the right to inspect contractor's owned, leased, rented, or contracted facilities during normal working hours. The right of inspection, and inspections actually performed by generator shall not limit any of contractor's responsibilities under this agreement.

XI. INSURANCE - Contractor shall not begin any operations under this agreement until contractor has obtained all of the insurance required and furnishes certificates of proof of insurance coverage to generator. Contractor shall maintain at its own expense during the term of this agreement, the following types and levels of insurance coverage as a minimum:

Contractor shall maintain such other insurance, including environmental liability insurance, or meet applicable financial standards, as required by applicable local, state, and/or federal laws, rules, and regulations in regard to insurance.

All insurance certificates shall provide for at least ten days notifications from insurer to generator before coverage is canceled or materially changed.

XII. INDEPENDENT CONTRACTOR - Contractor is and shall be an independent contractor in the performance of all services under this agreement. Contractor shall exercise exclusive control of the operation and activities of all employees, agents, or subcontractors at all times. Neither contractor nor generator shall have any authority to employ any person as an employee, agent or subcontractor for or on behalf of the other.

XIII. SEPARABILITY - If any section, subsection, sentence or clause of this agreement shall, in a court of law, be adjudged illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the legality, validity or enforceability of the agreement as a whole or of any section, subsection, sentence or clause not so adjudged.

XIV. WAIVER - Any waiver by either party of any provision or condition of this agreement shall be in writing, and shall not be construed or deemed to be a waiver of any other provision or condition of this agreement, nor a waiver of a subsequent breach of the same provision or condition, unless such waiver be so expressed in writing, signed by the party to be bound.

XV. ASSIGNMENT - Neither party shall assign any of its rights or obligations under this contract without the prior, written consent of the other.

XVI. ENTIRE AGREEMENT - This agreement and its applicable exhibits contain the entire agreement between the parties with regard to the matter dealt with in this agreement. There are no understandings, representations or warranties of any kind not expressly set forth here, except for the implied warranties under the Uniform Commercial Code as adopted by the state where the agreement is effected (the state where the generator is located.) No modification or amendment of this contract shall be affected by order, receipt, bill of lading or any other forms not made a part of this agreement, and no modifications or amendments shall be of any force or affect unless they be in writing and signed by the parties to be bound.

XVII. TERM OF THE AGREEMENT - The term of this agreement shall be for (time or number of disposals) (Options for renewal are negotiable and should be noted in this section if applicable.) Renewal, if available, and mutually agreeable, must be in writing, and notice of renewal action be delivered at least thirty days prior to expiration date of this contract.

Intention to terminate this contract may take place at any time, or at renewal. Notice of intention to terminate must be delivered by certified mail, return receipt requested, at least thirty days in advance of desired renewal date. Such receipt shall be proof of notification.

Signed and Witnessed.
Training Plan. An important part of an effective hazardous waste disposal program involves training internal employees. Each work place must develop and publish a work place list that includes every hazardous chemical used, stored or handled in that work place, subject to local limits of quantity. Work place lists from the various work centers are accumulated by into an overall facility list. This facility list is shared with emergency response personnel assigned to the particular facility, as well as local emergency, and fire safety officials. While employees have access to these lists, they do not constitute an adequate formal training program. The employee training program will be essential to show that the employer has used due caution to prevent exposure and injury to all employees.

The first step is the creation of a training standard. What levels of training will be offered, which employees will be trained at which level, and when and how often employees will be trained will be the important issues. It is advisable that all employees be trained within a few days of employment, and they receive refresher training each year thereafter. Certain employees may have to be trained prior to allowing them access to certain areas where chemicals are used or stored. These employees may need refresher training every six months, or more often. Develop the level of training necessary and ensure that the standard is consistently enforced.

SAMPLE TRAINING OUTLINE. A formalized training plan that covers all of the employer's responsibilities to employees is necessary to protect individuals. Ensure that training is scheduled, and accomplished. Documentation of attendance records and annotation in employee files is recommended. A successful training program outline will cover the following topics: Purpose of Training; Definitions; Hazardous Chemicals Commonly found in the work place; Modes of Entry to the Body; Signs of Possible Contamination or Poisoning; Guidelines for Safe Handling of Hazardous Chemicals; Where MSDS sheets are located; How to read a MSDS Sheet.

INTERNAL AUDIT. It is recommended that at least an annual audit be conducted of the overall organizational hazardous materials policy. The audit consists of a series of questions that will required detailed analysis to answer. The answers to the questions will be compiled into a report that will show how the program is being administered. Discrepancies discovered should be directed to the department responsible, and after a sufficient time is allowed to correct the problem, follow-ups should be performed. Some suggested audit questions could be: Are all assigned personnel of the unit, department or work center familiar with the policy? Has the facility hazardous materials policy been reviewed during the past year? Are requisitions being screened for MSDS requirements? Are requisitions screened against existing MSDS files? Are existing MSDS files review annually for accuracy and applicability? Is the P.O. number annotated on the MSDS in file? Are verbal requests to vendors for MSDS information, followed up in writing? Is a copy of the follow up letter filed and easily retrieved? Is the telephone number and contract person for the responsible state agency available to the buyers? Are items being held in receiving until a suitable MSDS is on file? Is a copy of the MSDS delivered to the user along with the product? Has a copy of the MSDS for stocked items been provided the warehouse supervisor? Does receiving inspect shipping containers and documentation for MSDS sheets? Have all employees of the unit, department or facility been trained within the past year? Was annual refresher training accomplished on time? Was attendance documented? Do a supply and warehouse job descriptions contain reference to hazardous materials requirements? Do contracts for the disposal of hazardous materials follow the suggested contract?

CONCLUSION. A well planned, documented and implemented hazardous materials program will be a very valuable experience for almost any organization. Even if an organization does not manufacture or use hazardous chemicals, many potentially hazardous materials can be brought into the workplace by unsuspecting employees. It is the employer's responsibility to protect employees on the job from hazardous materials regardless of the source. Every employee must be adequately and frequently trained. The overall organizational program should be audited periodically. Hazardous materials used, identified, and collected for disposal present a particular problem. Though an employer can never completely mitigate his responsibilities under the law, the prudent employer will ensure that all steps necessary to protect employees, the public, and the environment will be taken.

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