Mystery Drums: What Every Facility Manager Fears

A guide to the practical and legal hazards of unknown chemicals, orphaned containers, and the waste you inherit whether you want it or not. Q&As include:

1. What exactly is a “mystery drum?”
2. How does a facility end up with these mystery drums in the first place?
3. Is this actually a legal problem, or just an inconvenience?
4. Does this mean you could be liable for a mess you didn’t make?
5. How important is due diligence before a property acquisition?
6. What if the drums are already there and nobody did the due diligence?
7. Can you just call the manufacturer if the label is extant?
8. What about the drums that turn out to be empty?
9. Is there a broader pattern behind all this, or is it just bad luck?
10. What should a facility manager do who’s staring at an unlabeled drum right now?
11. Where can I get comprehensive advice and services for dealing with unidentified drums of possible hazmat?

What exactly is a “mystery drum?”

Short answer: Something that can turn a routine Tuesday into a very expensive Wednesday.

Longer answer: A mystery drum is any container of unknown provenance sitting somewhere on your property—behind the boiler, under a tarp in the back lot, wedged between two pallets of something else entirely—that no current employee can identify, explain, or claim.

A mystery drum might be labeled. The label may even be legible. But that doesn’t mean the label is true. Paint doesn’t always stay where it’s poured. A drum stenciled “MOTOR OIL— NON-HAZARDOUS” might turn out to contain something considerably less polite.

How does a facility end up with these mystery drums in the first place?

Gravity, mostly. Chemicals accumulate the way junk mail accumulates, except junk mail doesn’t require a hazmat team to dispose of it.

A drum gets used partway, set aside “for later,” and “later” never comes. An employee who knew what was in it retires, is laid off, or simply forgets. A company changes hands, and the incoming owner discovers that “as is” in a real estate contract has a much broader definition than he or she anticipated.

Multiply these fortuities by a few decades of operations, a few changes in management, and a general institutional tendency to defer unpleasant decisions, and you get a small, quiet, chemical archaeology dig festering behind the loading dock.

Is this actually a legal problem, or just an inconvenience?

Both, generously proportioned.

Under the Resource Conservation and Recovery Act—known as RCRA and pronounced “rick-rah” by the hazmat clerisy in a tortured attempt to turn initials into an acronym—anyone who generates, stores, or disposes of hazardous waste has obligations. And “generates” has been interpreted broadly enough that simply possessing an unidentified drum can trigger duties you never signed up for.

Then there’s the Comprehensive Environmental Response, Compensation, and Liability Act—known as “Superfund” to its friends—which has made “current owner of the property” a surprisingly effective legal hook for assigning cleanup liability, regardless of who actually poured the stuff in the first place. CERCLA’s philosophy on fairness might be summarized: Somebody has to pay, and you were standing closest to the drum.

Does this mean you could be liable for a mess you didn’t make?

That’s the general idea. CERCLA liability is strictly “joint & several,” meaning intent and innocence are largely beside the point, and any one responsible party can, in principle, be pursued for the whole cleanup bill before sorting out who owes whom afterward.

Yes, there are defenses.

The “innocent landowner” and “bona fide prospective purchaser” provisions of CERCLA exist precisely because Congress eventually noticed that buying a warehouse shouldn’t be legally indistinguishable from adopting its previous owner’s chemistry set. (Check out source.) But those defenses require, at minimum, that you did some due diligence before closing the deal, and did not simply shrug at anything found afterward.

How important is due diligence before a property acquisition?

Enormously, and it’s the cheapest insurance policy you might ever decline to buy.

The first step is a “Phase I Environmental Site Assessment,” which is a records review and site walkthrough. If this turns up red flags, a “Phase II Environmental Site Assessment” ensues, which includes actual soil and groundwater sampling. (Curious? Learn more here.)

Skipping this step to save a few thousand dollars on closing costs is a bit like skipping the home inspection because you’re in a hurry to move in; the house might look fine right up until you discover what’s living in the walls, except in this metaphor what’s living in the walls is polychlorinated biphenyls and the exterminator is the EPA.

What if the drums are already there and nobody did the due diligence?

We hope you’re only asking this question out of scholarly curiosity. In such a case, you would now have what we practitioners politely call “orphan waste” and what everyone else calls a problem. The correct first move is never to open it, move it, mix it with anything, or (especially) pour it down a drain to make it go away.

The second move is to treat it as hazardous until proven otherwise, because the cost of being wrong in the cautious direction is only some disposal fees, while the cost of being wrong in the other direction can include chemical burns, fires, or a call to the fire department’s hazmat unit that ends with your parking lot cordoned off and you doing the EPA version of a perp walk.

Can you just call the manufacturer if the label is extant?

Sometimes, and it’s worth trying. A legible label with a batch number can save real money. But labels lie, degrade, or get swapped when a container is reused for something else entirely, a practice that was distressingly common before anyone worried much about it.

The only reliable method is proper sampling and analysis by a qualified environmental contractor, who will identify the contents, classify them under the appropriate waste codes, and arrange for disposal through a permitted facility. This costs money, but considerably less than the alternative, which involves regulators, remediation orders, and lawyers who bill in 15-minute increments.

What about the drums that turn out to be empty?

Empty is a word that EPA regulators use with great precision whereas the rest of us don’t. A container is “RCRA empty” (say it together now: RICK-RAH-EMPTY!)—only if it meets specific residue thresholds. I.e., depending on the material, generally under an inch of residue or one percent of the container’s capacity. A drum that looks empty to the naked eye might still contain enough residual material to qualify as hazardous waste in the eyes of the law, which does not accept “looked fine to me” as a defense.

Is there a broader pattern behind all this, or is it just bad luck?

It’s less bad luck than bad incentives.

Proper waste characterization and disposal has an immediate, visible cost. I.e., the invoice arrives promptly. The cost of deferral, by contrast, is invisible, deferred, and often inherited by someone else entirely: a future owner, a future employee, a future regulator with a clipboard and a long memory.

Rational people and rational companies discount future costs more than they should, especially when those costs are uncertain and someone else might end up holding the bag. This is precisely the sort of problem that regulation exists to correct, whatever one might generally think about regulation, because the unregulated market has a well-documented tendency to let mystery drums accumulate until they become someone else’s enigma.

What should a facility manager do who’s staring at an unlabeled drum right now?

Don’t touch it, don’t guess at it, and don’t let it become tomorrow’s problem out of a hope that it will simply evaporate. (N.B. Many of these things do evaporate, and they’re usually the ones you least want to be standing next to when it happens.)

Instead, document what you’ve found, secure the area, and bring in a licensed environmental contractor who does this for a living. It’s not glamorous work. It will not add to the ambiance of your widget manufactory. But it’s considerably less expensive than the alternative, which involves consent decrees, a great deal of paperwork, and possibly your name in a court filing captioned “United States v. Your Facility, Now Also a Superfund Site.”

Where can I get comprehensive advice and services for dealing with unidentified drums of possible hazmat?

Found an unidentified drum onsite? Don’t guess. Don’t pour. Don’t wait.

Our licensed technicians handle identification, sampling, and compliant disposal of unknown or abandoned waste—protecting your facility from RCRA violations and CERCLA liability alike.

Fast response, proper paperwork, zero drama. Because “mystery drum” should never become “mystery lawsuit.” Call before that drum opens by itself.

Contact us today. Or call us at 425.414.3485.

And thank you for reading our blog!