First, do no harm

Environmental laws affect healthcare providers, too.
By William T. Gorton III

A long standing adage in the healthcare industry is “first, do no harm.” When it comes to protecting the environment, this industry must take this challenge to heart. As a group, the healthcare industry generates more than two million tons of waste annually. This amount of waste gives the industry a very large environmental footprint, which attracts heavy environmental regulatory, accreditation and ethics scrutiny.

The history of general environmental standards in the healthcare industry hit the headlines in the late eighties when medical waste began washing up on east coast shorelines. This spawned the 1990 Federal Pollution Prevention Act. In 1998, when public officials realized the healthcare industry was the fourth largest source of mercury in waste streams, the EPA and American Hospital Association entered into a Memorandum of Understanding (MOU) that set the framework for the “Hospitals for a Healthy Environment” program. This program addressed a number of issues including elimination of mercury waste, minimization of other chemical waste and a focus on pollution prevention.

The MOU jump-started serious discussions about a number of far reaching implications in hopes of decreasing the industry’s environmental footprint. The concept of “Practice Green Health” resulted.

Many states recognizing this concept formed the Joint Commission on Accredited Hospital Organizations (JCAHO) that certifies institutions demonstrate compliance in a number of areas including environmental controls. JCAHO also manages safety risks, promotes safe working environments, inspections of facilities, hazardous materials and waste management plans, permits and licensing. The Joint Commission does not preclude inspections by state or federal agencies.

Healthcare facilities are a microcosm of almost every aspect of environmental law affecting air, water, waste, nuclear material and toxic substances – all regulated mediums. Healthcare facilities, particularly hospitals and research facilities are some of the largest waste generators in the U.S. All types of waste – solid, hazardous, pharmaceutical, medical and low-level radioactive waste are generated by healthcare facilities daily.

Exacerbating this situation even more is the use of “disposable” medical products. It is estimated by the EPA that one per cent of all solid waste in the U.S. originates at healthcare facilities.

One of the most common violations cited by the EPA is the commingling of various types of medical waste with common garbage, which does not have a special regulatory program related to disposal and handling. These two types of waste must be separated.

Unique Waste
A unique category of solid waste encountered frequently by healthcare facilities is “construction/demolition” (C&D) waste. C&D wastes, such as asbestos, lead-based paint and lead shielding, often require special handling and disposal. Any facility considering refitting or demolition must be sensitive to properly disposing of materials used decades before, but now considered hazardous.

At first glance, discarding old medical records would seem to be a simple matter. If you treat it as simple waste you are in violation of the Health Information Portability and Accountability Act (HIPAA). You are now required that any Protected Health Information, including electronic and paper medical records, be handled, disposed and/or recycled in such a way that protects patient confidentiality.

Biohazardous materials, which washed up on the east coast beaches in the 1980s, include blood and blood products, body fluids, tissues and organs, used bandages, used surgical instruments, discarded “sharps,” cultures, and surgical gloves and gowns. These are often referred to as “Red Bag Wastes.” Though not regulated as a “hazardous waste” in most jurisdictions, this category must now be handled separately and may be incinerated at facilities specifically permitted under the Clean Air Act.

When it comes to Occupational Safety and Health programs, half of the states have their own federally approved programs. These are administered by state labor regulators. You are encouraged to check your local regulations and see what is required.

Did you know some waste from healthcare facilities is regulated under the Atomic Energy Act? The Nuclear Regulatory Commission (NRC) licenses and regulated nuclear devices and radioactive waste including solids, liquids and gasses contaminated by radioactive substances used in the diagnosis and treatment of diseases. The NRC does differentiate between low levels and high levels of radioactivity in waste. As a rule, healthcare facilities produce low level waste. However, check the regulations closely. Violation of the NRC regulations can result in violations being deemed criminal.

The highest percentage of healthcare industry violations relates to the improper handling of hazardous waste. The waste is generated throughout the facilities in any number of ways. Maintenance materials, cleaning fluids, solvents, laboratory chemicals and pharmaceuticals fall into this category. These materials are highly regulated under federal rules and mandate a cradle to grave framework for their handling and disposal.

Unused pharmaceuticals are gaining increasing attention from federal regulators since scientists have identified numerous pharmaceutical compounds which have found their way into the nation’s waterways in discernible levels. In the past, facilities have disposed of large quantities of unused drugs by flushing them down the drain. There is evidence of endocrine disruptors in the nation’s waterways forcing healthcare facilities to address this waste disposal in a controlled manner.

Clean Air Act Violations
The second most common citation for healthcare facilities is violations of the Clean Air Act. Boilers, incinerators, sterilizers and generators are stationery sources requiring permits under the Clean Air Act. Permitting is very complicated and depends on the locality and technology proposed.

Indoor air quality can also be an issue. There must be proper air handling systems in place. Failure to do so can result in problems that exacerbate exposure and possible allergic reactions to dust and airborne vapors. Water intrusion, from any number of possible sources, may foster the growth of microorganisms, including mold. These could be dangerous to individuals with immature or compromised immune systems.

Most facilities simply discharge their waste water into a sewage system

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operated by local government. These public facilities must comply with the federal Clean Air Act and will establish water quality standards for the facility. An Industrial User permit is required. Substances from the healthcare facility wastewater can complicate the discharge system. These particular substances, such as detergents, maintenance chemicals, lab waste and pharmaceutical flushing must be pre-treated.

When addressing environmental issues, healthcare facility administrators must work with the environmental, health and safety professional and environmental counsel to conduct detailed environmental audits of their facilities. The EPA and states have protocols supporting the concept of “internal compliance audits.” When followed and violations are corrected and self-reported, the facility will mitigate the possibility of those violations causing harm and/or being found in an inspection and being subject to civil penalties or worse.

The healthcare industry must meet its environmental obligations, duties and the oath that sets the standards of the medical community: “First, do no harm.”

William T. Gorton III, Esq., is a member, Stites & Harbison, PLLC, in Lexington, Ky.