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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 1 • 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 2 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 3 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 4 LAW OFFICES OF HARPER & BURNS LLP {LIMII}UI IS41 IIUIN )R.1 OFHIK{ 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