October 2005

Scrap tires - not exactly rubberized gold in Ohio
Laws provide reason for caution
by Brad L. Tammaro

It is safe to say that millions of scrap tires are generated every year and that each and every one of those waste tires must ultimately be transported and disposed of in some manner. As with all things that have the potential to produce income, the state of Ohio imposes licensing and regulatory requirements on the handling of waste, including scrap tires, and attaches penalties to the violation of those requirements that can make any misstep extremely costly to a potential entrepreneur, both in terms of money and personal freedom.

A review of cases handled throughout Ohio by the state’s environmental criminal investigators and prosecutors in just the last three years reveals a variety of charges brought against owners and operators of tire shops and salvage yards. The violations include the illegal transportation of scrap tires, failure to prepare appropriate shipping documents, open dumping of solid wastes, operating an unlicensed solid waste facility and even criminal endangering.

Several observations may be made in examining these cases. First, the investigation and prosecution of such cases seems to be an area of focus for the state, as these cases constitute a relatively similar percentage of all environmental prosecutions each year. Second, anyone who handles scrap tires in any capacity may be subject to investigation and possibly prosecution, whether they generate scrap tires, transport, shred, store or dispose of them. Finally, these investigations are prompted in a variety of ways, from complaints made by citizens and former employees to “sting” operations implemented by the environmental investigators themselves.

What can be drawn from these prosecutions? After separating out those individuals who knowingly engaged in the conduct of which they were eventually found guilty, there is little substitute for understanding what activities may subject an individual and his or her company to criminal prosecution when dealing with a waste material such as scrap tires. That understanding begins with recognizing that scrap tires qualify as solid waste under Ohio’s solid waste laws.

Those laws establish the baseline for the violation of any statutory provision relating to scrap tires as a first degree misdemeanor. An individual violator is subject to a potential penalty of six months’ incarceration and a fine of up to $1,000, while a company that is convicted would be subject to the fine. However, as with any baseline, there are various provisions that rise above the starting point of a first degree misdemeanor. The first such provision makes the reckless open dumping of scrap tires or the violation of an emergency order concerning scrap tires issued by the Director of Environmental Protection unclassified felonies, subject to a potential penalty of two to four years’ incarceration and/or a fine of between $10,000 and $25,000. Subsequent violations and convictions are subject to an escalator clause in the penalty that increases the range of the potential fine to between $20,000 and $50,000.

The next area of deviation from the misdemeanor baseline involves “knowing” actions by an individual. An individual who holds a permit, license or registration certificate relating to scrap tires who knowingly violates a scrap tire abatement order or transports scrap tires without proper registration is subject to the felony penalties of 2 to 4 years’ incarceration and/or a fine of between $10,000 and $25,000. Moreover, where a facility involved in the disposal, collection or storage of scrap tires is unlicensed, violates an order to cease operating or violates a term or condition of its permit to operate the individuals and company will be subject to felony prosecution. In all these instances, the target of the criminal enforcement action is subject to the escalating penalty clause for subsequent violations and convictions. In light of the state’s steady enforcement in this area and the proactive investigative approach being taken in some instances, any person or business engaged in handling and/or transporting scrap tires would be wise to consider taking steps to assure they are in compliance with the regulations. First, review all operating procedures to make sure they comply with the regulatory requirements. Second, verify that all licensing, registration and permitting requirements are current. Third, establish, maintain and periodically review recordkeeping procedures to ensure that they accurately portray the company’s operations and waste handling procedures. Finally, recognize that certain events may trigger a greater degree of scrutiny from state inspectors or investigators such as a change in ownership, changes in operating procedures, complaints by neighbors, or accidents such as fires.

The solid waste laws make it clear that only reckless and knowing missteps involving handling wastes such as scrap tires are subject to criminal prosecution. Having a thorough understanding of these laws and taking the appropriate steps to ensure compliance with them are the keys to avoiding becoming the target of an investigation and possible prosecution.

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