Energy and Environment Monitor

Effluent Limitation Guidelines- Construction and Development

               November 28, 2008, EPA proposed technology-based Effluent Limitations Guidelines and New Source Performance Standards¹  for the Construction and Development (C&D) point source category (73 FR 72561-72614; 40 CFR Part 450). The C&D point source category covers:  Construction of Buildings (NAICS 236) including residential, nonresidential, industrial, commercial and institutional building construction; Heavy and Civil Engineering Construction (NAICS 237) includes utility systems construction (water and sewer lines, oil and gas pipelines, power and communication lines); land subdivision; highway, street, and bridge construction; and other civil engineering construction.

               The proposed ELG requires construction sites to implement a range of erosion and sediment control measures to control pollutants in stormwater discharges. In addition, for sites of 30 acres or larger located in areas of the country with high rainfall intensity² and soils with high clay content³, stormwater discharges from the construction site would be required to meet a numeric limit on the allowable level of turbidity, which is a measure of sediment in the water . EPA requests comments by February 26, 2009 on the proposed rule addressing alternate options with a different numeric limit based on different technologies, as well as treatment technologies, costs, loading reductions, and economic achievability.

               The proposed rule is intended to work in concert with existing state and local programs - usually via the NPDES General Permit Program -- adding a technology-based "floor" that establishes minimum requirements that would apply nationally. EPA estimates that this proposed rule would cost $1.9 billion per year with annual monetized benefits of $332.9 million.

               The proposed rule would require all construction sites disturbing one acre or greater [40 CFR §122.26(b) (15)], including sites less than one acre that are part of a larger common plan of development or sale whose total land disturbing activities total more than an acre, to implement a range of erosion and sediment control best management practices (BMPs) and pollution prevention practices to reduce pollutants in stormwater discharges. [Same scope of coverage as existing rule 40 CFR 122.26(b)(14) (x) and (15)].

               Erosion BMPs are to minimize dislodging and mobilizing of sediment particles and require stabilization of disturbed soils immediately when earth disturbing work has permanently or temporarily (earth disturbing work has been stopped on that portion of the site and will not resume for a period exceeding 14 calendar days) ceased ; control stormwater volume and velocity to prevent channel, stream bank and outlet erosion; minimize the amount of soil exposed and minimize soil compaction by construction equipment in areas that will not contain permanent structures or where compaction is not necessary for structural integrity; provide  natural buffers around surface waters; minimize stream crossings, minimize  disturbance of steep slopes and use erosion controls on slopes; preserve topsoil and natural vegetation; establish temporary or permanent vegetation, such as grass or sod, or use non-vegetative controls such as mulch, compost, geotextiles, rolled erosion control products, polymers or soil tackifiers to stabilize exposed soils; divert stormwater that runs onto the site away from disturbed areas of the site.             

               Sediment BMPs are to capture particles that have mobilized and are entrained in stormwater, with the objective of removing sediment and other pollutants from the stormwater discharge and include silt fences, sediment traps and basins and inlet protectors. Performance of trapping devices can be enhanced by using baffles and skimmers and active treatment processes such as electro-coagulation, filtration, and chemically enhanced settling. Perimeter controls -- diversion dikes, storm rain inlet protection, filter berms, and silt fencing --- are required for down-slopes and side-slope perimeters. Discharges from silt fences must be controlled with vegetated filter strips or vegetated buffers at least six feet in width. Sites must maintain stabilized construction entrances and exits, including wheel wash stations to remove sediment from construction vehicles leaving the site. Sediment and other pollutants, including construction materials, must be removed daily from paved surfaces with washing directed to a sediment basin or control device. Sediments and pollutants discharged to storm drain inlets and sediment from dewatering must be minimized.

               Sediment Basin Specifications: Construction projects disturbing 10 or more acres at one time are required to install a sediment basin meeting minimum standards of design, including capacity to contain 2-year, 24-hour storm for the entire watershed area draining to the basin until final stabilization of the disturbed area. Alternatively, a sediment basin with storage volume of 3,600 cubic feet per acre of total watershed area draining to the basin must be provided. If water will be flowing onto the construction site from up-slope and into the basin, the calculation of sediment basin volume must also account for this volume of off-site water. In addition to the water storage volume, a sediment storage volume of at least an additional 1,000 cubic feet per acre of disturbed area plus any sediment from up-slope of the construction site must be added. The effective length of the basin must be at least four times the width of the basin. Alternatives to these specifications with equivalent sediment control may be authorized by the permitting authority.

               Pollution prevention practices prohibit discharge of construction wastes, trash, and sanitary waste; wastewater from washout of concrete, stucco, paint, and cleanout of other construction materials; discharge of fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance;  discharge of pollutants resulting from the washing of equipment and vehicles where soaps or solvents are used; or from water washing unless washwater treated in sediment basin or better treatment. Exposure of stormwater to building materials, landscape materials, fertilizers, pesticides, herbicides, detergents, and other liquid or dry products must be minimized and the site must implement appropriate chemical spill prevention and response procedures. The site must also prevent stormwater runoff from contacting areas with uncured concrete to minimize changes in stormwater pH.

               Turbidity Effluent Limitation:  In addition, if sites 30 acres or larger are located in areas of the country with high rainfall intensity and soils with a high clay content, stormwater discharges would be required to meet a numeric limit for turbidity intended to remove fine-grained and slowly-settling or non-settleable particles which typically cannot be effectively removed by conventional stormwater BMPs, such as sediment basins. Turbidity effluent limits require an additional layer of management practices and/or treatment above what most state and local programs are currently requiring⁴. Many sites would need to use active treatment systems, such as electro-coagulation, polymer clarification, and chitosan-enhanced filtration treatment technologies.

            The proposed turbidity effluent limit is 13 NTU (nephelometricturbidity units) as a nonconventional pollutant and an indicator pollutant for the control of other pollutants, such as metals and nutrients associated with sediment and materials on construction sites that can become entrained in stormwater discharges. Hand-held turbidity meters (turbidimeters) can be used to measure turbidity in discharges, or data loggers coupled with in-line turbidity meters can be used to automatically measure and log turbidity measurement reducing labor requirements associated with sampling and provide real-time assessment. Permitting authorities would be required to incorporate these turbidity limitations into their permits for stormwater discharges from C&D sites.

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

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[1] EPA has proposed the same standards for the effluent limitations and the NSPS. EPA interprets the definition of "new source" at CWA § 306(a)(2) as not including discharges associated with construction activity because a construction site cannot itself be constructed. However since the NRDC v.EPA, 437 F.Supp.2d 1137, 1139 (C.D. Cal. 2006), requires EPA to promulgate NSPS, EPA proposes to define “new source” for purposes of  Part 450 as any source of stormwater discharge associated with construction activity resulting in an  industrial source from which there will be a discharge of pollutants regulated by another NSPS in Subchapter N, e.g., construction activity that builds a new cement manufacturing plant covered by 40 CFR 411.10 would be subject to NSPS under 40 CFR 450.24.

[2] Annual rainfall erosivity factor (R factor) of 50 or higher (Revised Universal Soil Loss Equation).

[3] 10 % > by mass of soils < 2 microns in diameter (down to the graded and excavated level of the site).

[4] Oregon requires sites to meet a 160 NTU benchmark if the site is discharging to a waterbody not meeting applicable water quality standards under section 303(d) or a waterbody with a TMDL for sediment and turbidity. 

State Voluntary Cleanup Programs: How We Got Here

            In the mid-1990s, the U.S. General Accounting Office estimated that there were approximately 130,000 – 450,000 contaminated properties located in the United States and that the cost to clean up these sites could exceed US$650 billion.  The contaminated sites – referred to as either brownfield or voluntary cleanup program (VCP) sites – ranged from manufacturing plants to military facilities to neighborhood gasoline stations to dry cleaners, and were owned by both private and governmental entities.

Although the terms brownfield and VCP are often used interchangeably, there can be programmatic differences between the two, depending on the individual state.  For example, under some state VCPs, brownfield sites may be cleaned up by a party that did not cause or contribute to the contamination.  In other states, eligibility for a VCP may depend on property ownership or it may focus only on the parties that caused or contributed to the contamination.  Differences pertaining to whether state brownfield funds may be used and the extent of public participation can drive the decision as to whether a property will be cleaned up as a brownfield or a VCP site.  State VCPs share the following general attributes and goals:

·        To reduce the spread of urban/suburban sprawl onto “greenfields” by encouraging the reuse and redevelopment of contaminated properties, especially those located in urban core areas.

·        To provide regulatory flexibility to developers, landowners, or responsible parties to investigate and cleanup environmental contamination, which often include provisions to implement institutional land-use and/or engineering controls.

·        To mitigate actual or perceived human health and ecological risks that may be present, which can include a tiered approach based on risk protocols tied to the future land-use (e.g., residential vs. commercial/industrial).

·        To provide financial incentives in the form of grants, loans, and tax incentives.

·        To relieve developers, landowners, responsible parties, or lenders of uncertain liability risks and provide some degree of liability protection (e.g., comfort letter, NFA letter, or certificate of completion).

When a contaminated site becomes the object of a cleanup program, there are a variety of federal and state regulatory programs that may be used, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA: also known as Superfund); the Resource Conservation and Recovery Act (RCRA) Corrective Action Program; the Toxic Substances Control Act (TSCA); state Leaking Underground Storage Tank (LUST) Corrective Action programs; and state brownfield programs and VCPs.

From a historical perspective, it wasn’t until the 1970s that the United States first began to recognize that environmentally contaminated properties might represent a threat to human health and the environment.  One result of this growing public awareness was the passage by Congress of RCRA in 1976, which first established the concept of the “cradle-to-grave” approach to managing solid and hazardous waste.  Within only a few years, however; it was determined that RCRA might not be the most appropriate regulatory program for investigating and cleaning up contaminated properties.

In 1980, in response to highly publicized events like Love Canal (a neighborhood in Niagara Falls, NY, which became the subject of national attention and controversy following the discovery of toxic waste buried underground), Congress passed CERCLA in an attempt to address contaminated properties.  It should be noted that CERCLA was intended to address only a relatively small number of sites that were considered to be the most heavily contaminated and posing the greatest threat to human health and the environment.  Of particular interest, CERCLA established a retrospective liability scheme to hold parties that were responsible for or associated with hazardous substances accountable for the cost of cleaning up contaminated sites.  Thus, the concept of strict, joint, and several liability entered our environmental vocabulary in the 1980s.

Since 1983, the U.S. Environmental Protection Agency (EPA) has listed 1579 sites on the National Priority List (NPL) under CERCLA.  As reported by EPA, through fiscal year 2007, 321 of these sites have been cleaned up and removed from the NPL.  Furthermore, remedial construction is now complete at 712 sites, which indicates that hazardous substances are under control and that a remediation system is in operation (www.epa.gov/swerosps/bf/index.html).

In 1986, Congress modified CERCLA and passed the Superfund Amendments and Reauthorization Act (SARA).  SARA was intended to encourage the implementation of permanent remedies and use of innovative technologies to more cost-effectively and quickly clean up contaminated sites.  In addition, SARA aimed to increase state involvement and citizen participation.

By the late 1980s, several states began developing their own brownfield programs and VCPs in response to the growing cost, complexity, and long time-frames associated with cleaning up sites under Superfund.  Both California and Minnesota enacted VCPs in 1988, and Illinois implemented its VCP in 1989.  Nearly 20 years later, most states have implemented some form of VCP.  According to the National Brownfield Association (www.brownfieldassociation.org), more than 50,000 sites have so far been cleaned up and issued some form of a comfort or no further action (NFA) letter by their respective state.

Most recently, in 2002, Congress passed the Small Business Liability Relief and Brownfield Revitalization Act, which recognizes states as the primary regulators of brownfield sites.  As summarized by the NBA, an important component of the act “was the creation of the federal enforcement bar, which ensures that when a site goes through a state program, the state becomes the primary regulator and the federal government cannot use Superfund enforcement authority over that site.”

More than 30 years after the enactment of RCRA and 20 years after the first VCPs were implemented, most states have now adopted VCPs and are moving forward with cleaning up a broad range of commercial, industrial, and (in some states), residential properties under their respective VCPs.  As a result, formerly abandoned properties are being recycled and reused and community exposure to environmental contaminants is being reduced.  The number of sites cleaned up to date under these programs reinforces the validity of the VCP model and bodes well for the continued cleanup of contaminated properties using these programs in the future.

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here.  (Originally published by the author in EM, Air & Waste Management Association, April 2008). 

U.S. EPA Proposes to Add Hazardous Pharmaceutical Wastes to the Universal Waste Rule

U.S. EPA is proposing to add hazardous pharmaceutical wastes to the Universal Waste Rule codified at 40 CFR Part 273.  The proposed rule, if finalized and adopted in West Virginia, would affect pharmacies, hospitals, physicians’ and dentists’ offices, other health care practitioners, outpatient care centers, ambulatory health care services, nursing homes and other residential care facilities, veterinary clinics, morgues, and reverse distributors.  U.S. EPA published its proposed rule December 2, 2008 (73 Fed. Reg. 73520), and comments are due February 2, 2009. 

            Under the proposed rule, a pharmaceutical universal waste is a pharmaceutical that is a hazardous waste and any container that held hazardous pharmaceutical waste unless that container is considered “RCRA-empty” under 40 CFR § 261.7.  There are approximately thirty-one commercial chemical products listed on U.S. EPA’s P- and U-lists under the Resource Conservation and Recovery Act (RCRA) that have pharmaceutical uses.  For example, the following chemotherapy drugs, CTX, Cytotoxan, Neosar, and Procytox are listed as U058 (cyclophosamide).  In addition, pharmaceutical wastes may also be hazardous because they exhibit one or more of the following four characteristics of hazardous waste:  ignitibility, corrosivity, reactivity, and toxicity.  Solutions containing more than 24% alcohol are examples of a pharmaceutical waste that exhibits the ignitibility characteristic.  Nitroglycerin is an example of a pharmaceutical waste that may exhibit the reactivity characteristic.  Pharmaceuticals exhibiting the corrosivity characteristic are generally limited to compounding chemicals, including strong acids, such as glacial acetic acid, and strong bases, such as sodium hydroxide.  Depending on the concentrations in different pharmaceutical preparations, pharmaceuticals may also exhibit the toxicity characteristic because of the use of arsenic (D004), barium (D005), cadmium (D006), chloroform (D022), chromium (D007), lindane (D013), m-cresol (D024), mercury (D009), selenium (D010), and silver (D011).

            Advantages to managing hazardous pharmaceutical waste under the Universal Waste Rule are simplification of the hazardous waste determination process and streamlined standards for “handlers,” defined as any person who generates, receives, consolidates ships or accumulates but does not treat, recycle, or dispose of universal waste, and transporters.  For example, handlers of pharmaceutical universal waste would not be required to separate P-listed waste from other hazardous waste for purposes of tracking the volume generated or on-site accumulation volume limits.  The proposal would also provide the opportunity for all pharmaceutical waste, hazardous or not, to be managed as a single waste stream, reducing the amount of pharmaceutical waste sent to a regulated medical waste incinerator or disposed of down the drain.  In addition, there would be financial benefits.  U.S. EPA estimates that the cost savings for hospitals and reverse distributors will range from $33.9 million to $35.2 million per year.

            Handlers of pharmaceutical universal waste would have increased generation volumes and longer on-site accumulation time limits as well as modified requirements for storage, labeling and marking, preparing the waste for shipment off site, employee training, responses to releases, and notifications.  For example, a small quantity handler of universal waste (SQHUW) may accumulate less than 5,000 kg or 11,000 lb on site at any one time and a large quantity handler of universal waste (LQHUW) may accumulate 5,000 kg or more on site at any one time.  Further, the 5,000 kg accumulation limit in U.S. EPA’s proposal refers to all types of universal waste, including batteries, pesticides, mercury-containing equipment, hazardous waste lamps, and, if U.S. EPA’s proposal is finalized, pharmaceuticals. 

            The RCRA program’s counterpart to “handler” is “generator”.  Generator status is determined based upon the quantity of hazardous waste produced each month and those quantities are much lower than for handlers of universal waste:  (1) a conditionally exempt small quantity generator (CESQG) generates less than or equal to 1,000 kg or 220 lb per month or less than or equal to 1 kg of acute hazardous waste per month; (2) a small quantity generator (SQG) generates less than 1,000 kg per month; and (3) a large quantity generator (LQG) generates equal to or greater than 1,000 kg per month or greater than 1 kg of acute hazardous waste per month.  The quantity of hazardous waste produced each month is significant because as the quantity increases so does the stringency of the applicable regulatory requirements.   

            A U.S. EPA identification number is not required for small SQHUW but is required for LQHUW, SQGs, and LQGs.  The on-site accumulation limits for SQHUW is less than 5,000 kg but for CESQGs the limit is less than or equal to 1,000 kg, less than or equal to 1 kg of acute hazardous waste, or less than or equal to 100 kg of spill residue from acute and for SQGs the limits are less than 6,000 kg.  There is no quantity limit for LQHUW or LQGs.  The storage time limit without a storage permit would be increased for SQHUW and LQHUW to one year unless for proper recovery, treatment or disposal.  If accumulation is solely for accumulating such quantities of universal waste as are necessary to facilitate proper recovery, treatment, or disposal, the proposal would allow accumulation for greater than one year.  For SQGs and LQGs, the storage time is less than or equal to 180 days or 20 days, depending upon the transportation distance, and less than or equal to 90 days, respectively.  There is no manifest requirement for handlers of universal wastes, whether SQHUW or LQHUW, but a manifest is required for SQGs and LQGs. 

            Containers must be structurally sound, compatible with the pharmaceutical wastes that will be contained within the container, and lack evidence of leakage, spillage, or damage under reasonably foreseeable conditions, and incompatible wastes may not be placed in the same container.  Unlike the RCRA program, there is no requirement that the containers of hazardous pharmaceutical waste be “closed”.  Each individual pharmaceutical universal waste item or accumulating container must be labeled with the buzz words “Universal Waste – Pharmaceuticals” or “Waste Pharmaceuticals”

            With respect to employee training, LQHUW must insure that all employees are thoroughly familiar with the proper waste handling and emergency procedures related to their responsibilities during normal facility operations and emergencies.  SQHUW must provide basic training and inform all employees that handle or have responsibilities for managing universal waste of the proper handling and emergency procedures appropriate to the type(s) of universal waste managed at the facility.  This training can be accomplished via verbal communication or through the distribution of pamphlets or other documentation.  LQGs by contrast must provide full training to their employees. 

            In the event of a release, handlers of universal waste must immediately contain all releases of, and other residues from, universal wastes and determine if any material resulting from the release is a hazardous waste and manage it accordingly.  Handlers must also report releases of hazardous substances above the reportable quantity threshold.

            The proposed rule also addresses off-site shipments.  The rule would prohibit handlers from sending or taking universal waste to a place other than another universal waste handler, a destination facility or a foreign destination.  If a universal waste being offered for off-site transportation meets the definition of hazardous materials under Department of Transportation (DOT) regulations, the handler of the universal waste must package, label, mark, and placard the shipment in accordance with the DOT regulations and must prepare the proper shipping papers.  The shipper is responsible for insuring that a receiving universal waste handler agrees to receive the shipment before shipping the waste.  If a shipment is rejected, the shipping handler must receive the waste back or agree with the receiving facility on a destination facility to which the shipment will be sent. 

            The proposed rule also specifies the receiving facility’s responsibilities.  If an unsuitable shipment containing universal waste is received, the receiving facility may reject the full shipment or a portion of the shipment and must notify the shipper of the rejection and discuss reshipment of the load.  If a handler receives a shipment of hazardous waste that is not a universal waste, the receiving facility must immediately notify the appropriate regional U.S. EPA office (or the authorized state, when appropriate) of the illegal shipment, provide the name, address, and phone number of the shipper, and manage the hazardous waste pursuant to instructions received from the U.S. EPA regional office or state if applicable.  If a handler of universal waste receives a shipment of non-hazardous, non-universal waste, the handler must manage the waste in compliance with applicable federal or state solid waste regulations. 

            A LQHUW, whether shipping or receiving a universal waste, is required to track shipments.  The tracking records must include the name and address of the universal waste handler or foreign shipper to or from whom the universal waste was sent, the quantity of each type of universal waste sent or received, and the date of receipt of the shipment of universal waste.

            The requirements for universal waste transporters are essentially the same as the requirements for hazardous waste transporters except no manifest is required for universal waste transporters.  Universal waste transporters are prohibited from disposing, or diluting or treating universal waste.  They must handle universal waste in compliance with all applicable DOT regulations and transport universal waste to handlers, destination facilities, or to foreign destinations.  Universal waste transporters may store universal waste for ten days or less and must respond to releases.

            “Destination facilities” are defined as faculties that treat, dispose of, or recycle a particular category of universal waste.  Destination facilities are subject to all applicable RCRA requirements.  The Universal Waste Rule does not change the requirement for recycling facilities to get a storage permit if they store waste before they recycle it.  Also, if a recycling facility does not store waste, the facility still has to comply with the requirements of 40 CFR §261.6(c)(2).  Notification requirements under RCRA §3001 also apply to destination facilities accepting universal waste. 

            Destination facilities may only send or take universal waste to handlers, other destination facilities, or foreign destination facilities.  Destination facilities may reject shipments or portions of shipments containing universal waste, but the destination facility owner or operator must notify the shipper of the rejection and arrange for re-shipment.  If a destination facilities receives a shipment of hazardous waste that is not a universal waste, the facility must notify its regional U.S. EPA office or authorized state.  If the facility receives non-hazardous, non-universal waste in a shipment, the destination facility must manage the waste in any manner that is in compliance with applicable federal or state and local solid waste regulations.  Destination facilities must keep a record for each shipment of universal waste received at the facility.  The record may be in the form of a log, invoice, manifest, bill of lading, or other shipping document.  The content of the record must include the name and address of the universal waste handler or foreign shipper from whom the universal waste was sent, the quantity of each type of universal waste received, and the date of receipt of the shipment of universal waste.  The destination facility must retain universal waste shipment records for a period of three years.

            Handlers and transporters of universal waste must comply with all the substantive land disposal restrictions (LDR) requirements, but not the administrative requirements.  Destination facilities are required to comply with both the substantive and administrative requirements.  The substantive LDR requirements include a prohibition on accumulating prohibited hazardous wastes directly on the land (and disposal), a requirement to treat wastes to meet the treatment standards before land disposal, a prohibition on dilution, and a prohibition on waste accumulation, except for purposes of accumulating quantities sufficient for proper recovery, treatment, or disposal.

            Because the proposed rule is less stringent than the current hazardous waste standards, West Virginia is not required to modify its program to adopt regulations consistent with and equivalent to U.S. EPA’s proposed standards for hazardous pharmaceutical waste.  U.S. EPA’s proposal, if finalized, would be effective in West Virginia only if adopted by the State.  Other laws still apply to the regulation of pharmaceutical waste, including the Controlled Substances Act and Drug Enforcement Administration regulations, Health Insurance Portability and Accountability Act, The Atomic Energy Act, and any state and local medical waste regulations.  For additional information concerning U.S. EPA’s proposal to add hazardous pharmaceutical waste to the Universal Waste Rule, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

New Emission-Comparable Fuel Exemption from Classification as Hazardous Waste

    December 19, 2008 EPA issued a final rule (73 Fed. Reg. 77953-78017) effective January 20, 2009, adding a new exclusion to the Resource Conservation and Recovery Act (RCRA) rules to the category of exclusions for comparable fuels which are energy-rich hazardous secondary materials which would otherwise be hazardous wastes, but which have the same hazardous constituent concentrations as fossil fuels that would be burned in their place. EPA is establishing a new category of excluded fuel “emission-comparable fuel" (ECF), which meets the comparable fuel specifications (over 160) in Table 1 to §261.38 (except the specifications for hydrocarbons and oxygenates), and the specifications for heating value and viscosity as generated.  ECF has substantial fuel value and the hydrocarbon and oxygenate constituents provide substantial fuel value. The rule specifies conditions on burning ECF which assure that emissions from industrial boilers burning ECF are comparable to emissions from industrial boilers burning fuel oil. The ECF exclusion also includes conditions for tanks and containers storing ECF to assure that discard does not occur. Hazardous secondary materials may not undergo processing to destroy or otherwise remove the hazardous constituents to meet the specifications, or to meet the heating value or viscosity specifications (i.e., such materials, by definition, cannot be ECF). Based on limited current practice for those materials currently classified as comparable fuels under 40 CFR §261.38, EPA expects most ECF to be used on-site. ECF would be used and stored under largely the same conditions as would the virgin fuel—fuel oil--which would often be displaced by ECF.

Storage Conditions: (Conditions added since proposed rule are underlined):

    ECF may be stored in tanks, excepting underground storage tanks, and containers under conditions that prevent releases of hazardous secondary materials to the environment. The storage conditions are adopted from a collection of requirements for storage of fuel oil and other materials: discharge prevention requirements adopted from the Spill Prevention, Control, and Countermeasure (SPCC) requirements for oil storage facilities; containment and emergency procedure requirements adopted from the hazardous waste storage requirements, and fugitive air emission controls adopted from several NESHAP (National Emission Standards for Hazardous Air Pollutants) for organic products, by-products, and feedstocks. The final rule also provides alternative storage conditions, adopted solely from the controls for hazardous waste storage facilities EPA is providing these  alternative storage conditions for the convenience of owners and operators since they provide equivalent protection and are less complex that the panoply of conditions that are adopted from requirements for fossil fuels and other products; and (3) facilities that are currently storing hazardous waste that becomes ECF under the exclusion are already complying with these conditions and the rule waives the RCRA closure requirements in 40 CFR Parts 264 and 265 for those interim status and permitted storage units, and generator accumulation units that store ECF, provided that: (1) the storage unit has been used to store only the hazardous waste that is subsequently excluded as ECF under the conditions of Sec.  261.38; and (2) the storage unit will be used to store only that ECF.

Burner Conditions: (Conditions added since proposed rule are underlined)

    To be excluded, ECF may be burned in an industrial or utility boiler that is a watertube type of steam boiler that does not feed fuel using a stoker or stoker-type mechanism. To be considered a boiler, a combustor must meet the definition of boiler under Sec. 260.10. and the boiler must be located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts of products, by mechanical or chemical processes. To be considered a utility boiler, the boiler must be used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale. [See Sec.  261.38(b)(3)(i)(B)].

    ECF must be burned under the following operating conditions to be excluded, as provided by Sec.  261.38(c)(2)(ii):

    •Carbon monoxide (CO) concentrations in the stack gas must be monitored continuously, must be linked to an automatic ECF feed cutoff system, and must not exceed 100 ppmv on an hourly rolling average (corrected to 7% oxygen);

    • The boiler must fire at least 50% primary fuel on a heating value and mass basis, and the primary fuel must be fossil fuel, fuels derived from fossil fuel, tall oil, or comparable fuel with a heating value of 8,000 Btu/lb or greater;

    • The boiler load must be 40% or greater;

    • Key operating parameters (i.e., CO; gas temperature at the inlet to the electrostatic precipitator (ESP) or fabric filter (FF) unless coal is the primary fuel; indicator of boiler load; ECF feedrate; primary fuel feedrate) must be linked to a system that automatically cuts off the ECF feed if the limits on the parameters are exceeded;

    • ECF must be fired into the primary fuel flame zone;

    • The ECF firing system must provide proper atomization; and

    • If the boiler is equipped with an ESP or FF and does not fire coal as the primary fuel, the combustion gas temperature at the inlet to the ESP or FF must be continuously monitored, must be linked to the automatic ECF feed cutoff system, and must not exceed 400 [deg]F on an hourly rolling average.

 

    Requirements for notifications, reporting, recordkeeping are provided in detail in the rule.  For further information contact the author Barbara D. Little at 304/ 340-1355 or email blittle@jacksonkelly.com.

 

    This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

NPDES Vessel General Permit

The USEPA has implemented a 2008 Vessel General Permit (VGP) general NPDES permit for certain vessels with discharges to Waters of the US.  Key provisions of the Permit are as follows:

A permit is required for non-recreational vessels involved in transportation within Waters of the US which are equal to, or greater than 79’ in length.  Additionally, only vessels which weigh more than 300 gross tons or have the capacity to hold or discharge more than 8 cubic meters (2113 gallons) of ballast water must submit a Notice of Intent (NOI).  With respect to (1) commercial fishing vessels of any size as defined in 46 U.S.C. § 2101 and (2) those non-recreational vessels that are less than 79 feet in length, the coverage under this permit is limited to ballast water discharges.  The permit covers discharges such as deck washdown and runoff and above water line hull cleaning, bilgewater, ballast water, anti-fouling leachate from anti-fouling hull coatings, aqueous film forming foam (AFFF), boiler/economizer blowdown, cathodic protection, chain locker effluent, gray water and other similar discharges.

The general permit became effective December 19, 2008 and will be in effect for 5 years.  The general permit allows 60 days from the effective date to come into compliance with inspection, training, record keeping and reporting.  For those who are required to obtain a permit, a NOI must be completed within 9 months after December 19, 2008 (due to be submitted by Sept. 19, 2009).  EPA is planning on an electronic NOI (eNOI) system for permitting.

States with NPDES permitting authority can decline to administer this program.  For those states whose NPDES program is administered by EPA, EPA will administer the VGP program.  Vessels operating in some states may have additional requirements regarding effluent discharges.

Numerical discharge limits will not be used for the general permit.  Discharge limits will rely on Best Practical Technology (BPT), Best Control Technology (BCT) and Best Available Technology (BAT).  The permit will include also, water quality-based effluent limits (WQBELs) where technology-based effluent limits are not sufficient to meet water quality standards.  The permit holder cannot discharge pollutants which may be harmful or cause a sheen on the water.

Vessels must be inspected once per week or once per voyage, whichever is more stringent.  Each visual inspection must be noted in the official logbook or other record keeping documentation, be signed by the person conducting the inspection and include basic information regarding the inspection.  A comprehensive annual inspection must be performed, which includes an inspection of all pollution control equipment and a record regarding any corrective actions taken as a result of the inspection.  Inspection records must be kept on the vessel or accompanying tug.

All vessels meeting the NOI requirement, and that have ballast tanks, must meet reporting requirements of 33 CFR 151.2041 and recording keeping requirements of 33 CFR 151.2045. 

EPA also requires reports of spills and other unauthorized discharges. In addition, VGP 2008 clarifies that spills and other unauthorized discharges must be reported to EPA. In the case where discharges may affect drinking water supplies, recreational waters, elicit fish kills, or may otherwise endanger human health or the environment, the discharge must be reported orally to the appropriate EPA regional office within 24 hours from the time or discovery, followed by an electronic or written report within 5 days. The release of a reportable quantity of any hazardous substance or oil must be reported to the National Response Center at 800-424-8802.

Vessel owner/operators must report any instances of noncompliance with the permit at least once per year to the regional office responsible for the waters in which the noncompliance occurred.

The permit requires owner/operators to submit a one-time report that contains basic information about the vessel after the 30th month of permit coverage. EPA is requiring this report in lieu of an annual report. Specifically, the report must include the owner and operator name(s) and addresses, the name of the vessel, the flag of the vessel, the size of the vessel, whether or not the monitoring conditions of the permit have been met, and the date of submission of the report.

Additional requirements are specified for cruise ships, ferries, barges, oil and petroleum tankers, research vessels, emergency vessels and vessels employing experimental ballast water treatment.  For example the permit requires an additional inspection for barge operations every time water is pumped from any area below deck, the vessel operator must conduct a visual sheen test by conducting a visual inspection of the discharge and the water around the barge to check the water for a visual sheen. Under 40 CFR 110 or 40 CFR 302, if a visible sheen is detected, the discharge must be reported immediately to the National Response Center at 1-800-424-8802 or on the Center’s website at www.nrc.uscg.mil. Furthermore, appropriate corrective actions must be taken according to the corrective actions section in Part 3 of the permit and the event must be recorded according to Part 4.2 of the permit.

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

 

CAIR Lives, Confusion Reigns

            The Federal Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) issued an Order December 23, 2008, that revises a remedy it had previously issued in July of 2008. The D.C. Circuit vacated the Clean Air Interstate Rule (CAIR) in July, but had not issued the court mandate making the vacatur effective.

 

Subsequent to the vacatur decision, states and the regulated community had to begin to put the toothpaste back in the tube inasmuch as most eastern states had promulgated regional haze State Implementation Plans (SIPs) that were predicated on the CAIR being in place. Reactions ranged from simply observing proceedings while waiting for the D.C. Circuit Court mandate to be issued to at least one state proposing emergency rules to replace the CAIR at the state level. Complicating the issue was the fact that the CAIR required utilities to commence operating NOx and some SO2 controls as early as January 1, 2009. With the expected vacatur imminent, many utilities were uncertain regarding whether to complete construction of controls and, if control units were completed, whether they had to commence operation in January of 2099.

 

The December 23, 2008, D.C. Circuit Court Order revised the remedy from vacatur to remand, but does not impose a deadline on EPA to respond to the Order. The impact is that the CAIR remains in effect at least until EPA responds to the remand Order. However, during the interim between the July vacatur decision and the December remand Order, many states began negotiating a Memorandum of Understanding (MOU) that, if implemented, may trump even the CAIR requirements for NOx and SO2 controls.

 

Our understanding is that a draft MOU is circulating among states east of the Mississippi River and that negotiations are continuing despite the remand Order. Stay tuned for further developments.

 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

Court Rejects Rule Prohibiting Roads in Designated Areas

    The United States District Court (D. Wy.) recently addressed (Wyoming v. US Department of Agriculture 07CV17B) the State of Wyoming's challenge to the adoption of the Roadless Area Conservation Final Rule ("Roadless Rule"), 66 Fed. Reg. 3244-3272 (Jan. 12, 2001), which was promulgated by the United States Department of Agriculture and the United States Forest Service. The Roadless Rule prohibits road construction, road reconstruction, and timber harvesting in inventoried roadless areas, and is applicable on a nationwide basis. The Roadless Rule affects 58.5 million acres, which is approximately 31 percent of National Forest System lands.

    The Court found that the Roadless Rule was promulgated in violation of the National Environmental Policy Act and the Wilderness Act, which required that it be set aside. The Court noted that the Wilderness Act's purpose is to prescribe the procedure for designation of wilderness areas and to divest that authority from the Department of Agriculture. The Court found the designation of 58.5 million acres as "roadless areas" to be a "thinly veiled attempt to designate 'wilderness areas' in violation of the clear and unambiguous process established by the Wilderness Act for such designation." The Order Granting Plaintiff's Motion for Declaratory Judgment and Injunctive Relief is attached.

    This article was authored by Ronda L. Sandquist, Jackson Kelly PLLC. For more information on the author see here.

Download Nov Blog. Wyoming v US Dept of Agriculture 07CV17B (D0526952)

Bhopal Litigation Continues

        November 3, 2008, the Federal Second Circuit Court of Appeals in New York reinstated a suit - Sahu v. Union Carbide Corp., 2^nd Cir., No. 06-5694 11/03/08), seeking injunctive relief and monetary damages under New York State law as a result of groundwater pollution allegedly caused by the Union Carbide Bhopal pesticide manufacturing facility which was the site of an event frequently cited as the world’s worst industrial disaster.  December 3, 1984, a Union Carbide subsidiary pesticide plant released 42 tons of methyl isocyanate (MIC) gas, exposing at least 520,000 people to toxic gases and resulting in the immediate deaths of more than 3,000 people, according to the Indian Supreme Court. It is estimated that a total of 8,000 people died within two weeks, and it is estimated that an additional 8,000 have since died from gas related diseases (Wikkipedia).  The Bhopal incident was significant for West Virginia since the UCC Institute West Virginia facility also manufactured MIC and because of UCC's significant industrial presence in West Virginia. 

 

        The plaintiffs in the groundwater pollution case alleged that groundwater was contaminated before the accident by wastes generated during the manufacture of pesticides. Plaintiffs are trying to bypass the corporate entity and pursue legal action against individuals behind the corporation, notably the then chief executive of Union Carbide, Warren Anderson.   Plaintiffs in the case were members of a group that had previously filed a different suit involving the catastrophic release of MIC. In that case claims were barred by a settlement agreement between the government of India and Union Carbide (Bano v. Union Carbide Corp. 273 F. 3d 120 (2^nd Cir. 2001). 

 

        The Sahu water pollution suit argued that Union Carbide’s response to the 1984 disaster was insufficient. Defendants asked for an order granting summary judgment because the documentary evidence contradicted the allegations of the complaint the defense motions was supported by thousands of pages of evidence. 

 

        The Second Circuit’s ruling was not on any substantive grounds but on a procedural issue that the New York federal District Court had improperly converted a motion to dismiss to a motion for summary judgment.

 

        This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

U.S. EPA Releases Electronic Waste Guidelines

          On October 31, 2008, U.S. EPA released new guidelines on how to run safe and environmentally protective electronic waste recycling operations.  The guidelines, known as “Responsible Recycling (R2) Practices for Use in Accredited Certification Programs for Electronics Recyclers,” set forth thirteen principles to help electronics recyclers insure their material is handled safely and legally both in the United States and abroad.  The thirteen principles relate to: (1) environmental, health, and safety management system plans; (2) policies based on a “reuse, recover, dispose” hierarchy of responsible management strategies; (3) compliance with legal requirements in the United States and abroad; (4) on-site environment, health, and safety practices; (5) management of “focus materials” or FMs; (6) testing and packaging of reusable equipment and components; (7) tracking throughput; (8) data destruction; (9) storage; (10) facility security; (11) insurance, closure plan, and financial responsibility; (12) transport; and (13) recordkeeping.

The guidelines call on recyclers to develop policies that promote reuse and material recovery over landfill disposal or incineration.  “Focus materials” are materials in electronic equipment that require greater care during recycling, refurbishment, materials recovery, incineration or disposal and include items containing polychlorinated biphenyls (PCBs), items containing mercury, cathode ray tubes (CRTs) and CRT glass, batteries, and whole and shredded circuit boards except whole and shredded circuit boards that do no contain lead solder and have undergone safe and effective mechanical processing, or manual dismantling, to remove mercury and batteries.  Although not defined as FMs, toner and toner cartridges are to be managed similar to focus materials.  Before shredding, materials recovery, energy recovery, incineration, or land disposal of discarded electronic equipment of components, FMs as well as toner and toner cartridges are to be removed except small items containing mercury and CRTs, batteries, and circuit boards contained in equipment or components destined for materials recovery.  Removed FMs are to be sent to licensed processing, recovery, or treatment facilities.  Energy recovery, incineration, and land disposal may not be used as a management strategy for focus materials or equipment of components containing focus materials.  Electronics recyclers are to exercise due diligence in their selection and ongoing use of downstream vendors of focus materials. 

The R2 practices are not legal requirements and do not replace electronics recyclers’ legal obligations.  Adherence to the principles is voluntary, and if a requirement conflicts with an applicable legal requirement, the legal requirement controls.  The guidelines are for use in accredited certification programs of recyclers of electronic wastes, such as discarded computers, copiers, fax machines, imaging systems, printing systems, telephones, televisions, video cassette recorders, camcorders, digital cameras, control boxes, stereo systems, compact disc players, radios, cell phones, pagers, personal digital assistants (PDAs), calculators, organizers, game systems, and their accessories as well any other or new types of equipment that are designed primarily to store or convey information electronically any new accessories to such equipment.  The guidelines are for electronics recyclers as well as electronics resellers, refurbishers, demanufacturers, asset recoverers, brokers, and leasing companies engaged in e-recycling activities.   

A multi-stakeholder group started work on the guidelines in January 2006.  Their next step will be to identify certification programs to verify electronics recyclers who adhere to the R2 practices.  For more information on U.S. EPA’s Responsible Recycling Practices, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Additional Time for Compliance with VOC standards for Aerosol Spray Paints

          November 7, 2008, EPA promulgated a direct final rule (i.e., no proposed rule) amending the 40 CFR Part 59, Subpart E for the National Volatile Organic Compound Emission Standards for Aerosol Coatings, which establishes volatile organic compound (VOC) emission standards for the aerosol coatings category (aerosol spray paints) under the Clean Air Act (73 FR 66184-66187).  40 CFR Part 59 is the National VOC Emission Standards for Consumer and Commercial Products. In this direct final action, EPA is moving the applicability and compliance dates for aerosol coatings from January 1, 2009, to July 1, 2009. EPA is also making initial notifications required due on the compliance date, as opposed to 90 days in advance of the compliance date. This direct final rule takes effect December 29, 2008 without further notice, unless EPA receives adverse comment by December 8, 2008 (EPA also promulgated a proposal the same date for the purpose of taking the comment).

         EPA found these two time extensions necessary to allow EPA time to add compounds and applicable reactivity factors that are currently used in aerosol coatings, but were not included on the list in the regulations. The extensions also allow regulated entities sufficient time to develop initial notification reports based on revised tables; and, in the case of making initial notifications due on the compliance date, make the aerosol coatings rule consistent with the requirements of other part 59 rules, increasing consistency and clarity for the regulated entities.

          Section 59.511(j) anticipated that there may be some compounds that aerosol coating manufacturers are currently using, or intend to use, that were not included in Table 2 of the final rule. Section 59.511(j) allowed for regulated entities to petition EPA to add such compounds to the list. EPA received such petitions, but has not been able to finalize the additions to the list with sufficient time to allow manufacturers to certify compliance based on the deadlines in the final rule. Delaying the compliance date and the date when initial notifications are due will allow EPA time to finalize the additions to the list through appropriate public notice and comment procedures, and allow regulated entities sufficient time to prepare initial notification reports, and review and certify their compliance with the limits based on the revised tables.

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.