Financial Responsibility - Curbside - 2010-02-02 Permit by Rule
Door-to-Door Household Hazardous Waste Collection Program
Financial Responsibility Disclosure
Costa Mesa Sanitary District
The Costa Mesa Sanitary District acknowledges that it is financially responsible
for the Door-to-Door Household Hazardous Waste Program and that pursuant to
Section 25218 of the California Health and Safety Code the District has
submitted a Permit by Rule notification for the purpose of hosting a Door-to-Door
Household Hazardous Waste Collection program. State law requires that any
household hazardous waste program (including the District's previous one
authorized by variance from DTSC) be sponsored by the District and that the
District become the generator of record.
The requirement of financial responsibility was developed to protect the public in
the event that an HHW facility (built on real property) was to be closed and
require clean-up. Since this program does not utilize real property the potential
risks as envisioned by the regulation s authors are different and require a more
detailed disclosure as to how the District intends to meet the financial
responsibility requirements of this specific type of program. The following is
provided:
This program is managed by the District through the services of a contractor
Curbside Inc. The District requires its contractor Curbside Inc. to maintain
insurance to protect the District against claims that could arise from the operation
of a vehicle transporting household hazardous waste
The program has been designed to minimize financial exposure through the
following requirements and procedures.
• The contractor must have experience
o Curbside Inc. has been collecting HHW for ten years. During that
time the firm has not caused any waste to enter public rights of way
No public agency has expended funds to correct operating
problems including accidents, spills, etc.
• The contractor must maintain state mandated insurance
o Curbside Inc. maintains MCS90 pollution insurance as part of its
transporter requirements. This insurance coverage will cover the
cost of cleaning a spill or release of hazardous waste from the time
that a Curbside employee accepts the waste until after it is
removed from the Curbside Inc. vehicle
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• The contractor must maintain an umbrella insurance policy
o Curbside Inc. maintains a liability insurance policy with the District
as a named insured. This will help to protect the District in the
event of an incident at the Curbside Inc. transfer facility including
public liability coverage in the event someone becomes injured at
any point through the process. The District is additionally protected
by the contractor's Workers Compensation Insurance Policy
• The contractor must hold a hazardous waste transporters permit
o Curbside Inc. is a registered hazardous waste transporter and is
registered to handle electronic waste
• Vehicles used for this program must be newer and in good operating
condition
o Curbside s fleet used for this District was recently acquired and is
well maintained.
• Personnel handling waste must be trained.
o Curbside s employees are trained for the tasks they are requested
to perform. Annual renewal training for HAZWOPER and periodic
refresher training is documented.
• The quantity of toxic waste on the vehicle at any one time is minimal
o Curbside uses shorter box trucks. The trucks can only transport
two or three thousand pounds at a time
• Program parameters require collection of sealed containers with no
unknowns
o D 0 T rated drums secure the original containers (or repackaged
containers) to prevent spillage during transport. By isolating the
waste in multiple drums, the risk of spillage is minimized.
• Employee health insurance
Curbside Inc. provides 100% employer paid health insurance
coverage to employees and paid sick days. This is to ensure that
employees do not report to work when their performance may be
impaired.
• Contamination prevention
o In anticipation of the unlikely contamination of used oil that will be
bulked, Curbside uses 55-gallon drums to help isolate this material.
If a single drum becomes contaminated, it will be managed based
upon the contamination Because this program is a registered
Door-to-Door HHW program with CIWMB the state will cover the
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cost of up to $5 000 per year per District for disposal. In
Curbside's 10 years they have never made a claim.
• Waste records
To ensure that waste collected in the District is identified from
waste collected in another Jurisdiction on the same day Curbside
has invented a unique container label system that includes the
names of Cities whose residents waste has been placed into the
container Along with the label, a separate inventory sheet is
prepared at each home In the unlikely event that there was an
issue with a single drum, it would be possible to determine the
origin of the offending material, perhaps to the exact home it was
collected from.
A Uniform Hazardous Waste Manifest is prepared for the District
specifically indicating the quantity of waste collected from the
District separate from any other District that may have a similar
program through Curbside Inc. This permits DTSC and the District
to track all hazardous waste collected from homes in the District.
Curbside s computer generated reports derived from the individual
collection receipts are also available.
• Risk assessment
o To assess the total risk, it would be necessary to break down the
components of a single day collection of waste Without including
electronics, not more than 20% of the total waste collected falls into
the category of poisons, acids and similar hazardous waste
Generally this amounts to about 15%. With the exception of
flammable materials (about 30%) of waste the remainder consists
of latex paint, batteries and other materials that, while a threat to
the environment in a landfill, pose no immediate threat in the event
of a vehicle accident. All other materials (except used oil and
antifreeze) are collected in original, non-leaking containers that are
placed into sealed D 0 T rated drums.
For the above reasons and others documented in the Operational Plan, the
potential risk to the environment and, therefore, to the District are minimal.
Curbside does, from time to time, commingle waste from the District and other
jurisdictions in the same drum. This is done to reduce overall disposal costs and
make the program efficient. Only compatible materials are placed in a single
drum.
Curbside has taken the additional step of indicating on the drum label, the names
of Cities whose residents waste is contained in the drum. This step, along with
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the individual inventory receipts prepared at a participant's home help to isolate
waste taken from each home In the event of an issue during transportation or
disposal, it will generally be possible to determine the source of waste placed into
any individual waste container
In conclusion, the existing program started through the use of a variance will
continue through the issuance of a permit through the local CUPA. The program
will be managed in much the same manner as it has since it started. The District
maintains adequate insurance to cover risks in excess of those covered by its
contractor
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LAW OFFICES OF
HARPER & BURNS LLP
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45 01 ASSELL STREET
ALANR BURNS ORANGE. 'ALIIORFIA 9286( 7UVERSIDE/SAN BERNARDINO
IOHN R HARPER' (951)6740698
COLI.N R BURNS
714)'71-7728
UDN{ FAX 714)744- 350
JUDI A.CURTIN.
MICHAEL WWI( (AWRY.
OFFS 7wm1
To- Board of Directors
From: District Counsel
Date: June 16. 2010
Re: HHW Insurance
The District is considering continuing its agreement with Curbside. although state regulations
now require that the District accept liability for Curbside s operations. The following is presented
so that the Board can make a policy decision to enter into the new arrangement and take on the
added exposure.
Background
In 1998 Curbside. Inc. a division of Safety Kleen Co. made a proposal to the District to do
household hazardous waste (HHW) pickup from residences within the District.
The District entered into a contract with Curbside in which Curbside agreed to collect NNW in
exchange for a per stop fee and agreed to provide insurance and general liability in the amount of
$1 million and to name the District as an additional insured. Safety Kleen also agreed to provide
an indemnity certificate. described below
As part of that contract, the District was provided with a `Certificate of Assurance and
Indemnification for Safety Kleen (on a form copyrighted by Safety Kleen Corp) that provides
that, as long as you' (apparently their customers like the District) observe all laws and their
contract with Safety Kleen, Safety Kleen agrees to indemnify etc. the District from any liability
arising out of the performance of the contract and also from CERCLA liability The amount of
the Certificate is Over One Billion in Assets. Of course, this certificate is only their own
statement of their assets and is not the same as a bond or letter of credit in which money is set
aside for these liabilities.
The 2005 Curbside Proposal
In February of 2005 Curbside advised the District that the Department of Toxic Substances
made a final determination that variances they had issued in the past would need to he replaced
with a permit by rule process. The variances expired every three years and had to be renewed.
while the new permit by rule process apparently will not. The process is now administered by
the Orange County Consolidated Uniform Permitting Authority (CUPA), which is part of the
HHW Insurance
Page 2
Environmental Health Division of the County of Orange. What is new for the District is that the
process requires that the District submit a financial responsibility statement. This statement, in
essence, shifts the ultimate responsibility for the program to the District (see attached).
The statement requires that the District acknowledge that the District is financially responsible
for the program (pursuant to H & S C 25218) and that the District is formally designated as the
sponsor of the program and is the generator of record. In the statement (prepared by Curbside),
it states that the company maintains `MCS90 coverage. It further states that Curbside has an
umbrella policy and the City is an additional insured. Curbside also describes the following other
features of its program to assuage any other concerns: all employees trained, sealed containers for
transport, and manifests for all waste transported. The containers are now actually labeled to
show which resident contributed the waste.
Issue
You may remember that the State is shifting the financial responsibility to local government
where there are greater resources.
Toni has checked with the Special District Risk Manager Authority (SDRMA) for their opinion
as to whether the risks of entering into such a program can be met through a combination of
insurance coverage and indemnification (risk transfer).
The Board needs to determine that the risks are properly addressed to be comfortable with being
the sponsor of this program.
Analysis
The major risks to be protected against are spills on private property or public streets and
improper disposal. Under the Comprehensive Environmental Response. Compensation and
Liability Act (CERCLA) and other laws. the generator of waste can be liable even though it
paid for a transporter to properly dispose of waste Sometimes an entity (including businesses),
receive a bill years later for an improper disposal in another state, and you are given the choice of
hiring an attorney in another state to defend yourself or paying a few to tens of thousands of
dollars to settle. We. therefore. want to make sure we have the appropriate layers of protection.
Indemnification
The first level of protection is risk transference. The contract correctly provides that Curbside
will indemnify and defend the District from any and all liability that may be incurred by reason of
Curbside s performance of the agreement.
We have obtained a Dun & Bradstreet for Curbside and have attached that for your review
We have reviewed Curbside s Certificate of Liability Insurance issued from GSM Insurance
Services which specifies Curbside, Inc. is the Insured and lists the Costa Mesa Sanitary District
as the Certificate Holder
HHW Insurance
Page 3
Insurance
Curbside has Commercial General Liability in the amount of$1 million and has pollution
coverage of$2 million. The District will/has been named as an additional insured with an
endorsement to the policy This policy has a Best s Guide rating of Al5 It is noncontributory (it
does not look to any policy the District has before paying limits) and has a $2.000 deductible for
Automobile liability and zero deductible for Contractor Pollution Liability It. therefore, appears
to be adequate to protect the District s interests.
In addition. Tom has ascertained that the District has pollution coverage. While there is generally
an exclusion in our policy for pollution. the exclusion states that it does not apply to liability
caused by transportation by auto. Tom has obtained an email from the SDRMA that specifically
states that we would be covered for such a spill (attached).
Conclusion
Staff believes that the indemnity and insurance protections that are available, with regard to the
HHW program. provide acceptable protections for the District to continue with the program a
sponsor The decision, of course, is the Board s to make. If the Board approves the agreement. it
should authorize the financial responsibility statement.
Respectfully submitted.
Alan R. Bums
District Counsel
cc. Manager/District Engineer
Assistant Manager/Staff
Southern California
Curbside Inc.
LAMP RECYCLING PRICES
Public Agency
TYPE PRICE PER UNIT
Fluorescent tubes, straight $ 0.11 foot
Utube/Compact/Biax $ 0.55 lamp
Incandescent $ 0.30 lamp
Ultraviolet/Germicidal $ 3.50 lamp
Coated or Scattershield $ 2.00 lamp
Low/High Pressure Sodium $ 1.60 lamp
HID/Mercury/Metal Halide $ 1.60 lamp
Broken lamps in 5 gal pail $ 40.00 pail
BALLAST DISPOSAL
Recycle/Landfill=non-PCB $ 0 70 pound
PCB landfill $ 0.75 pound
PCB incineration $ 1 40 pound
Stop charge $ 75.00
Boxes for straight tubes will be provided at no charge
Broken lamps can be collected in 5 gallon pails
customer must provide a secure pail or purchase
one from Curbside.
The stop charge is assessed regardless of the
quantity of materials collected. The stop charge
applies to all waste collected including chemicals
and other universal and hazardous waste.
2/2/2010
a- act 3- D,s3 1i L