Energy and Environment Monitor

Update on U.S. EPA’s Priority Waste Rules

The U.S. Environmental Protection Agency (EPA) has identified three “priority” waste rulemakings on its new Regulatory Gateway web site. They are: (1) Identification of Non-Hazardous Materials That Are Solid Wastes; (2) Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Power Producers; and (3) Financial Responsibility under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). EPA’s timelines for these rulemakings, each of which is in the pre-proposal stage, are as follows:

ü   The rulemaking for standards for the management of coal combustion residuals, formerly coal combustion waste, is expected to apply to the management of coal combustion residuals that are generated by coal-fired power plants. EPA has mentioned the following five regulatory options: (1) Subtitle C or hazardous waste; (2) Subtitle D or non-hazardous waste; (3) hybrid – except for beneficial reuse regulate as hazardous waste under Subtitle C; (4) regulate wet under Subtitle C and dry under Subtitle D; and (5) hybrid – Subtitle C for states that do not establish a permit program and Subtitle D for states that establish a permit program. West Virginia Governor Joe Manchin has asked EPA not to regulate coal combustion residuals as hazardous waste. The concern is that the hybrid approach of regulating coal combustion residuals as hazardous waste unless it is beneficially re-used will create a stigma resulting in killing the beneficial re-use of coal combustion residuals. EPA’s proposed rule was anticipated the end of 2009. According to Gateway, EPA is now projecting publication of the proposed rule in the Federal Register in April 2010. 

ü   EPA is proposing to define which non-hazardous secondary materials burned in combustion units are solid waste under Resource Conservation and Recovery Act (RCRA). If the secondary material is considered a “solid waste” then the unit that burns the secondary material would be subject to the requirements of Section 129 of the Clean Air Act. The meaning of “solid waste” as defined under RCRA is important because CAA § 129, which regulates emissions from sources that combust solid wastes, states that the term “solid waste” shall have the meaning “established by the administrator [pursuant to RCRA].” EPA published an advanced notice of proposed rulemaking in January 2009 (74 Fed. Reg. 41), and the comment period closed February 2009. EPA’s projected date for publication of the notice of proposed rulemaking, according to Gateway, is April 2010.   

ü   EPA has identified additional classes of facilities within three industries for which financial responsibility requirements under CERCLA §108(b) will be developed. The three industries are: (1) the chemical manufacturing industry; (2) petroleum and coal products manufacturing industry; (3) and the electric power generation, transmission, and distribution industry. EPA will undertake further study in order to decide whether to develop financial responsibility requirements for the following: (1) waste management and remediation services; (2) wood product manufacturing; (3) fabricated metal product manufacturing; (4) electronics and electrical equipment manufacturing; and (5) facilities engaged in the recycling of materials containing CERCLA hazardous substances. EPA developed its list of facilities by using information from the National Priorities List, Resource Conservation and Recovery Act Biennial Report and Toxic Release Inventory. EPA also highlights the costs associated with the cleanup of the coal ash spill at the Tennessee Valley Authority’s power plant in Kingston, Tennessee. EPA published an advanced notice of proposed rulemaking (ANPR) January 6, 2010 (75 Fed. Reg. 816), and the comment period, as extended, closes April 2010 (75 Fed. Reg. 5715). Gateway indicates that EPA projects publication of the proposed rulemaking in the Federal Register in April 2011. For further discussion of EPA’s January 6, 2010 ANPR, click here to read James R. Snyder’s article published February 8, 2010 on the Jackson Kelly Energy and Environment Monitor.   

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

EPA Announces “Eyes on Drilling” Tip Line

On January 26, 2010, the EPA announced the creation of the “Eyes on Drilling” tip line. The tip line is intended for use by citizens to report non-emergency suspicious activity related to oil and natural gas development. According to the website given at the end of the press release to provide instructions about the tip line, the tip line is for the EPA’s Mid-Atlantic Region (Region 3) and to be used to report dumping and other illegal or suspicious hauling and/or disposal activities.  

According to the instructional website, the citizen informants are encouraged to record, to the extent possible, the location, date, time, and who was involved in the event, observations, activities, discharge destination, and environmental impacts. The website also suggests that photo and videos are great ways to document observations. A toll free number and email address was provided to contact the tip line.  

The EPA’s Mid-Atlantic Region includes the states of Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia. In EPA’s press release, the following rationale was provided to explain why the tip line was established. 

“Public concern about the environmental impacts of oil and natural gas drilling has increased in recent months, particularly regarding development of the Marcellus Shale formation where a significant amount of activity is occurring. While EPA doesn’t grant permits for oil and gas drilling operations, there are EPA regulations which may apply to the storage of petroleum products and drilling fluids. The agency is also very concerned about the proper disposal of waste products, and protecting air and water resources. 

EPA wants to get a better understanding of what people are experiencing and observing as a result of these drilling activities. The information collected may also be useful in investigating industry practices. 

The agency works closely with state and local officials, as well as industry and public interest groups, to ensure that oil and natural gas drilling occurs in a manner which is protective of human health and the environment and complies with applicable laws. The agency is also counting on concerned citizens to report unusual or suspicious activity related to drilling operations.” 

The instructional website can be found at the following web address: http://www.epa.gov/region03/marcellus_shale/tipline.html. 

This article includes publically available information, and was assembled by Rachel Shanteau, Acacia Environmental Group LLC. For more information on the author see here.

Revisions to Area Source MACT For Gasoline Distribution and Dispensing Facilities

    December  15, 2009 EPA proposed revisions (74 FR 66470)  to the  Area Source MACT for Gasoline Distribution Facilities, 40 CFR 63 Subpart BBBBBB, applicable to bulk gasoline terminals and bulk plants, and Subpart CCCCCC, applicable to gasoline dispensing facilities, based on two petitions for reconsideration filed by the  Alliance of Automobile Manufacturers (Alliance)  and the  American Petroleum Institute (API).  EPA granted certain of the requests for reconsideration primarily to clarify the regulations, 40 CFR 63 Subpart BBBBBB and Subpart CCCCCC. There was no change in the compliance date for existing sources of January 10, 2011. The compliance date for New Sources (affected sources constructed since November 9, 2006) was January 10, 2008 or upon startup if startup occurs after January 10, 2008. Comments are due February 16, 2010. 

    The following sections: “Bulk Gasoline Plants and Terminals” and “Gasoline Dispensing Facilities” describe the proposed respective changes to the regulations:

Bulk Gasoline Plants and Terminals  

    The following are the proposed amendments to 40 CFR Part 63 Subpart BBBBBB:  

• Revision to the definition of ‘‘bulk gasoline plant’’ to clarify that gasoline from these facilities is subsequently loaded into gasoline cargo tanks for transport to GDFs. The proposed definition is as follows: ‘‘Bulk gasoline plant means any gasoline storage and distribution facility that receives gasoline by pipeline, ship or barge, or cargo tank and subsequently loads the gasoline into gasoline cargo tanks for transport to gasoline dispensing facilities, and has a gasoline throughput of less than 20,000 gallons per day. Gasoline throughput shall be the maximum calculated design throughput as may be limited by compliance with an enforceable condition under Federal, State, or local law and discoverable by the Administrator and any other person.’’

 

• Clarification that  that gasoline storage tanks located at bulk facilities, but used only for dispensing gasoline in a manner consistent with tanks located at a gasoline dispensing facility (GDF “Gasoline dispensing facility (GDF) i.e., any stationary facility which dispenses gasoline into the fuel tank of a motor vehicle).are not subject to any of the requirements in 40 CFR part 63, subpart BBBBBB, but instead, these tanks must comply with the applicable     requirements of 40 CFR part 63, subpart CCCCCC. Amendment to §63.11081. 

• Provision stating that if a bulk gasoline facility’s monthly throughput ever exceeds the definition of “bulk gasoline terminal, the source will still be subject to the provisions of Subpart BBBBBB even if later its monthly throughput threshold falls below the regulatory threshold. This  “once in always in” requirement is similar to other environmental requirements; the concept is that one cannot discontinue or disable a pollution control device even though the original criteria for installing the device are no longer met. 

• Amend item 1 in Table 1 to provide different controls for two types of gasoline storage tanks which have a capacity of less than 75 cubic meters (m3) as follows: 

▪ Add a capacity/throughput threshold below which small, infrequent-use gasoline storage tanks(capacity of less than 151 cubic meters and a throughput of less than 480 gallons per day)  would be required to be equipped with a fixed roof and covers on all openings that are to be maintained in a closed position at all times when not in use.  

▪Add a definition for surge control tanks and provisions requiring that they be equipped with pressure/vacuum (PV) vents with a positive cracking pressure of no less than 0.50 inches of water and that all openings are to be maintained in a closed position at all times when not in use. 

• Correct the definition of ‘‘vapor-tight cargo tank;’’ Vapor-tight gasoline cargo tank means:

a gasoline cargo tank which has demonstrated within the 12 preceding months that it meets the annual certification test requirements in §63.11092(f). 

Gasoline Dispensing Facilities (GDFs)  

Clarification that EPA intended to cover all public and private GDFs. The new proposed definition is:  

‘‘Gasoline dispensing facility (GDF) means any stationary facility which dispenses gasoline into the fuel tank of a motor vehicle, motor vehicle engine, nonroad vehicle, or nonroad engine, including a nonroad vehicle or nonroad engine used solely for competition. These facilities include, but are not limited to, facilities that dispense gasoline into on- and offroad, street, or highway motor vehicles, lawn equipment, boats, test engines, landscaping equipment, generators, pumps, and other gasoline-fueled engines and equipment.’’  

• An important revision addresses how to calculate throughput in determining whether stations are subject to the regulations. Revision is made to the definition of monthly throughput in §63.11132 to remove the reference to a ‘‘rolling 30-day average’’ and to add a clarification on how monthly throughput is calculated. This revision is intended to clarify that it was EPA’s intent that the monthly throughput is calculated by summing the volume of gasoline loaded into, or dispensed from, all gasoline storage tanks at each GDF during the current day, plus the total volume of gasoline loaded into, or dispensed from, all gasoline storage tanks at each GDF during the previous 364 days, and then dividing that sum by 12.  

• Proposed new paragraph stating that if a GDF’s monthly throughput ever exceeds an applicable monthly throughput threshold, the GDF will remain subject to those requirements even if the GDF’s monthly throughput later falls below the applicable monthly throughput threshold. (subparagraph (i) to §63.11111) 

• Proposed new paragraph stating that the dispensing of gasoline from fixed gasoline storage tanks at GDF into portable gasoline storage tanks for the on-site delivery and subsequent dispensing of the gasoline into the fuel tank of a motor vehicle or other gasoline-fueled engine or equipment used at the area source is subject to standards (subparagraph (j) to §63.11111)    

• Proposed new paragraph stating that owners or operators using portable gasoline containers that meet the requirements of 40 CFR part 59, Subpart F, (the Mobile Source Air Toxics Rule) will be considered in compliance (paragraph (d) to §63.11116) 

• New paragraph specifying the dates by which compliance demonstration for vapor balance systems at GDF with a gasoline throughput of 100,000 gallons or more are required (§63.11120(e) If the vapor balance systems were in place prior to January 10, 2008 it is considered compliant if system is required to comply, and complies, with either a 90-percent reduction in emissions, or uses management practices at least as stringent as those in must be conducted per the regulations. 

• New provision to allow storage tanks to have an additional option for submerged fill pipes that are further from the bottom of the tank than the distances previously specified in § 63.11117 (i.e. for tanks installed prior to 11/09/06 no more than 12 inches from bottom of tank; for tanks installed after 11/09/06 no more than 6 inches from bottom of tank) Owner/operator must be able to demonstrate that the liquid level in the tank is always above the entire opening of the fill pipe. Documentation providing such demonstration must be made available for inspection by delegated agency.  

• New paragraph (c) to § 63.11125 clarifying that cargo tank vapor tightness testing records must be kept for a period of 5 years, but adding that cargo tank owners or operators have the option of keeping only the current year’s records with the cargo tank and keeping records for the previous 4 years in the owner’s office if the records are instantly available. 

• Add a definition of ‘‘vapor-tight cargo tank,’’ correct the definition of ‘‘gasoline cargo tank,’’ and clarify that vapor tight testing records must be kept in the cab of the cargo tank for inspection by the facility operator. Proposed definition would read as follows: ‘‘vapor-tight gasoline cargo tank means a gasoline cargo tank which has demonstrated within the 12 preceding months that it meets the annual certification test requirements in §63.11092(f).’’ 

•Add definition of ‘‘gasoline cargo tank’’ clarified to reference “unloading” as well as “loading” operations  

• Add definitions for ‘‘gasoline,’’ ‘‘motor vehicle,’’ ‘‘nonroad engine,’’ and ‘‘nonroad vehicle’’ to ensure consistency with other rules 

• Amend the current definition of ‘‘gasoline dispensing facility’’ in §63.11132 to clarify intent to include all public and private stationary facilities that dispense gasoline into the fuel tanks of on- and off-road engines, vehicles, and equipment rather than just those facilities that dispense gasoline into the fuel tanks of motor vehicles.  

    The foregoing are only the primary changes proposed in the regulations, the proposed regulations should be reviewed for all of the revisions.    

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

2008 TRI National Analysis

On December 8, 2009 US EPA released its annual analysis of the Toxic Release Inventory of 2008 information.  The TRI database contains information on chemical releases into the air, land and water, as well as waste management and pollution prevention activities.  The analysis of 2008 data shows that 3.86 billion pounds of toxic chemicals were released into the environment, a 6 percent decrease from 2007. 

 

More than 21,000 facilities reported information on 650 chemicals in 2008.  There was a 5% decrease in the number of facilities reporting in 2008.  This could be due to the economic downturn.  Some facilities that reported in 2007 did not report in 2008.  EPA is planning to investigate. 

 

Air releases were decreased 14% from 2007 and decreased 30% from 2001.  Surface water releases increased 3% from 2007 and 1% from 2001.  It is believed that the surface water increase is due to the Tennessee Valley Authority coal ash spill.  Land releases were virtually unchanged with a 0.1% increase from 2007.  Land releases decreased 40% from 2001 levels.

 

The report shows decreases in the releases of persistent, bioaccumulative, and toxic (PBT) chemicals such as lead, dioxin, and mercury.  Mercury was down 11% from 2007 report.  Dioxin was down 77% from the 2007 report.  Lead was down 2% from the 2007 report.  PCBs increased 121% from 2007.  PCBs are longer manufactured in the United States.  The increase is due to the removal and treatment of legacy PCBs.  

 

3.86 billion pounds were disposed or otherwise released in 2008.  87% was released on-site through air releases (30%), surface water (6%), on-site underground injection wells (5%) and land disposal (46%).   The remaining 13% were disposed or otherwise released off-site.

 

In 2008, the production-related waste managed was 22.57 billion pounds.  Of the production-related waste managed, 38% was recycled, 12% was used for energy recovery, 33% was treated, and 17% was disposed of or otherwise released.  The waste management hierarchy establishes that once the waste is generated the preferred management methods are recycling, followed by burned for energy recovery, treatment and, as a last resort, disposal or otherwise released.

 

The quantity disposed of or otherwise released from the production-related waste management is 3.94 billion pounds while the TRI disposal or other release value is 3.86 billion pounds.  Why are these values different?  When looking at total production-related waste, the quantity disposed of or otherwise released includes all reported disposal or other releases except those due to remedial, catastrophic or one-time releases.  On the other hand, total disposal or other releases, discussed above, excludes amounts that were sent to other TRI facilities and reported as disposed or otherwise released (to avoid double-counting).

 

There were 179 carcinogens on the TRI list for 2008; 35 of the 179 carcinogens were not reported for 2008.  Total disposal or other releases of carcinogens reported was 776 million pounds in 2008.  92% were disposed of or otherwise released on-site and 8% were disposed of or otherwise released off-site.  From 2007 to 2008, total disposal or other releases of carcinogens decreased by 60 million pounds or 7%.  Air releases decreased by 16 million pounds or 18%.  From 2001 to 2008, total disposal or other releases of carcinogens decreased by 33% (388 million pounds), including a decrease of 44% (59 million pounds) in air releases. 

 

In addition to the traditional analysis of the TRI database, EPA conducted a TRI Chemical Hazard Analysis.  EPA used the Risk Screening Environmental Indicators (RSEI) “toxicity-weighted-pounds” methodology to conduct additional analysis.  The idea is to provide additional insights that go beyond simple pounds analysis and reflect some basic measure of chemical toxicity.  More information on RSEI is available at www.epa.gov/oppt/rsei

 

For this analysis, EPA included all TRI chemicals that have RSEI hazard weights and addresses total disposal or other releases to all media.  RSEI toxicity weights are available for both cancer and non-cancer health effects.  Two analyses are done, one using the cancer toxicity weights and one using the non-cancer toxicity weights. 

 

For 2008, 493 TRI chemicals were reported on by TRI facilities.

· 33% of the chemicals have RSEI cancer toxicity weights

· 68% of the chemicals have RSEI non-cancer toxicity weights

· 24% of the chemicals have both cancer and non-cancer toxicity weights

· 23% of the chemicals reported on for 2008 do not have RSEI toxicity weights, including known or suspected carcinogens such as dioxins, creosote and polychlorinated alkanes.

 

Comparing the nationally aggregated total toxicity weighted pounds of disposal or other releases using the RSEI cancer toxicity weights to years past shows that for 2007 to 2008 there was an increase of 10% using RSEI cancer toxicity weighted pounds.  For 2001 to 2008 there was a decrease of 53% using RSEI cancer toxicity weighted pounds. 

 

For non-cancer RSEI toxicity weights, there was a decrease of 7% from 2007 to 2008.  For 2001 to 2008, there was a decrease of 55% using RSEI non-cancer toxicity weighted pounds. 

More information on the 2008 TRI analysis is available at http://www.epa.gov/tri

 

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

Final Revisions to SPCC Rules

After almost a year of reconsideration on November 13, 2009, EPA finalized the SPCC regulations which were originally promulgated December 5, 2008, during the Bush Administration and were to be come effective on February 3, 2009.   However, with the change in administrations, these rules were subjected to the new administration’s regulatory review process, and their effective date was delayed while the Obama EPA considered objections that had been made to some of the new provisions of the regulations which principally affected oil production facilities.

 

The effective date for the November 18, 2009 rule is January 14, 2010, and the date by which these new SPCC requirements must be implemented is November 10, 2010. Relative to the SPCC requirements for onshore oil storage facilities most changes in the November 2009 final rules were to make wording and regulatory references less complicated. Substantively, the changes effected by the November 13, 2009 rules are: 

• Hot mixed asphalt (HMA) and HMA containers, pesticide application equipment and related mix containers, and heating oil containers at single-family residences, including those located at farms are exempted from the regulations;
• The definition of "facility" is amended  to clarify the existing flexibility associated with describing a facility's boundaries;
• There are amended facility diagram requirements to provide additional flexibility;
• A new definition of "loading/unloading rack" is provided  to clarify the oil transfer equipment subject to the provisions for facility tank car and tank truck loading/unloading racks, as well as amended provisions for this equipment;
• Amended general secondary containment requirements to provide more clarity;
• Exemption of non-transportation-related tank trucks from the sized secondary containment requirements;
• Amended security requirements;
• Amended integrity testing requirements to allow greater flexibility in the use of industry standards;
• Amended integrity testing requirements for containers that store animal fats and vegetable oils (AFVOs) and meet certain criteria;
• Amended definition of "production facility";
• Clarification that drilling and workover activities are not subject to the provisions at §112.9;
• Exemption for certain intra-facility gathering lines at oil production facilities from the SPCC requirements;
• More prescriptive requirements for a flowline/intra-facility gathering line maintenance program for all production facilities and an alternative compliance option for flowlines and intra-facility gathering lines for contingency planning in lieu of all secondary containment;
• Alternative compliance option for flow-through process vessels at oil production facilities to comply with the general secondary containment requirements and additional oil spill prevention measures in lieu of the sized secondary containment requirements;
• Definition of "produced water container" and alternative compliance measures for these containers which require general secondary containment, a process or procedure certified by a professional engineer (PE) designed to remove free-phase oil on the surface of the produced water in these containers and compliance with additional oil spill prevention measures in lieu of sized secondary containment requirements;
• Clarification of the definition of "permanently closed" as it applies to an oil production facility; and

A few provisions finalized in the December 2008 rule which are beneficial to the regulated community to whom they apply , become effective on January 14, 2010, with technical corrections:

• Exemption for underground oil storage tanks that supply emergency diesel generators at nuclear power generation facilities.
• Designation of a subset of "Tier I" qualified facilities with a set of streamlined SPCC rule requirements for which the owner or operator has the option to complete a self-certified SPCC Plan template in lieu of a full SPCC Plan.
• Compliance date for new oil production facilities changes to November 10, 2010, to align with the current compliance date.

The following provisions which were included in the December 2008 final rule were REMOVED  from the November 13, 2009 final rule.removed and are no longer part of the regulatory program. 

• Exclusions for oil production facilities and farms from loading/unloading rack requirements were removed. .
• Alternative qualified facility eligibility criteria for an oil production facility were removed.
• Exemption for certain produced water containers were removed.

Basic Applicability of SPCC Rules

 

The following sets forth the types of sources subject to the SPCC rule; the coverage has not changed substantially from the 2002 version of the SPCC rule:

 

The SPCC rule applies to owners or operators of non-transportation-related facilities that:

• Drill, produce, store, process, refine, transfer, distribute, use, or consume oil or oil products; and
• Could reasonably be expected to discharge oil to U.S. navigable waters or adjoining shorelines.

Facilities are subject to the rule if they meet at least one of the following capacity thresholds:

• Aboveground oil storage capacity greater than 1,320 U.S. gallons, or completely buried oil storage capacity greater than 42,000 U.S. gallons.

The following are exempt from the rule:

• Containers with a storage capacity less than 55 U.S. gallons of oil;
• Permanently closed containers;
• Motive power containers;
• Wastewater treatment facilities;
• Hot-mix asphalt and hot-mix asphalt containers;
• Residential heating oil containers at single family residences;
• Pesticide application equipment and related mix containers;
• Completely buried storage tanks subject to all the technical requirements of the underground storage tank regulations;
• Intra-facility gathering lines subject to U.S. Department of Transportation’s pipeline regulations; and

Underground oil storage tanks at nuclear power generation facilities.

 

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

Solid Waste Management Rule: WVDEP Responds to Comments on Proposed Revisions

Earlier this year, the West Virginia Department of Environmental Protection (WVDEP) proposed revisions to West Virginia’s Solid Waste Management Rule, 33 CSR 1. The proposed revisions include removing the requirement that Free Day tonnage count toward monthly/daily totals for landfills and defining the term pick-up truckload as the equivalent of 500 pounds. The definition of pick-up truckload is important because all solid waste facilities in West Virginia are required by W. Va. Code §22-15-7 (2009 Repl. Vol.), to provide one day a month when residential waste (up to one pick-up truck) may be disposed of free of charge. While Free Day discourages the improper, unlawful dumping of waste, it also results in lost revenue for the WVDEP and the county or regional Solid Waste Authorities (SWAs) because the tons are exempt from state and county assessment fees. The WVDEP recently responded to comments opposing the revisions by two of the fifty SWAs in West Virginia as well as comments supporting the revisions by the West Virginia Association of Waste Haulers & Recyclers and the West Virginia Landfill Managers Association. The WVDEP’s response to comments are important for owners and operators of commercial and municipal solid waste landfills and transfer stations, solid waste haulers and recyclers, and county and regional SWAs in West Virginia because they offer insight into the WVDEP’s interpretation of regulatory revisions that will likely be adopted by the West Virginia Legislature in 2010.  

Harrison County, which is the home of the Federal Bureau of Investigation Fingerprinting Center, is also the home of two landfills. The Harrison County SWA objected to the proposed regulatory language limiting a pick-up truckload to 500 pounds as contrary to legislative intent, citing the Legislature’s failure to pass S.B. 585 which attempted to make the same change to the statutory language. In addition, the Harrison County SWA explained that it had only one set of scales and expressed concerns pertaining to a backlog of vehicles onto the public highway and traffic safety issues on Free Day as well as increased illegal dumping. The WVDEP responded that the proposed change to limit a pick-up truckload to 500 pounds would not negatively affect the intent of Free Day, explaining that the intent behind defining a weight limit for the total amount of waste that could be brought to the landfill by one truck was to reduce or eliminate the occurrences of overloaded, overweight vehicles littering the highways and streets leading to the state’s landfills.  

The Berkeley County SWA also objected to the proposed definition to limit one pick-up truckload to 500 pounds. Relying upon data from the U.S. EPA that the average person generates 4.6 pounds of refuse per day, which works out to 552 pounds in 30 days for a family of four, the Berkeley County SWA contended that a weight limit would lead to illegal dumping or stock piling of waste in the back yard. In addition, the Berkeley County SWA expressed “fairness” concerns, stating that the Free Day was “close to being whittled down to no value”. In response, the WVDEP noted that the West Virginia State Plan estimates that a family of four generates 480 pounds of refuse in 30 days, and revised the definition of pick-up truckload or its equivalent to be no more than 516 pounds, the average of the U.S. EPA and West Virginia estimates and the equivalent of approximately 50 bags of trash per family of four per month.  

The Berkeley County SWA also objected to removing the requirement that Free Day tonnage count toward monthly/daily totals for landfills. It explained that the Berkeley County landfill is private and that the monthly and daily tonnage limits were “long-standing agreed upon concessions during the landfill’s initial siting”. The Berkeley County SWA expressed concern that the proposed revision would undermine its agreement as well as “place more tonnage into the facility, more traffic near the schools and more litter on the roads”.   The WVDEP acknowledged the negotiations involved in the siting of the Berkeley County landfill but concluded that the proposed change should not have a negative effect on its operations. The WVDEP reasoned that if Free Day tonnage were to count against a landfill’s monthly or daily total, a landfill could theoretically reach its limit before the end of the month, which would mean it could not accept any more waste that month. The WVDEP further reasoned that if the landfill could not accept waste, it would accumulate on curbs or in yards or garages, creating a greater chance that such waste would be illegally dumped or otherwise contribute to a public health risk.  

In contrast to the comments opposing the proposed revisions, the West Virginia Association of Waste Haulers & Recyclers supported the proposed revision of limiting one pick-up truckload or its equivalent to 500 pounds, finding that it provided clarity to the volume of waste permitted to be disposed of on Free Day, and agreed that the revision would help reduce litter from overloaded trucks. Like the West Virginia Association of Waste Haulers & Recyclers, the West Virginia Landfill Managers Association also supported the revision to limit Free Day disposal to 500 pounds per visit. The West Virginia Landfill Managers Association stated that the weight limit would reduce the unsafe storage of waste for long periods of time and “deter the practice of businesses or individuals charging for cleanup services, un-certificated hauling of trash from multiple households or businesses, and construction and demolition debris being disposed on ‘Free Day’.”  

Both the West Virginia Association of Waste Haulers & Recyclers and the West Virginia Landfill Managers Association supported the proposed revision that Free Day tonnage not count against the facility’s monthly or daily tonnage limit. They reasoned that the proposed revision would result in paying customers not being denied access to landfill space and would relieve the costs and burdens Free Day poses to rate-paying customers, the landfills, and the SWAs.  

In addition, the West Virginia Association of Waste Haulers & Recyclers suggested the rule be further revised to provide for designated areas at each landfill where Free Day customers could unload their vehicles without tying up traffic at the landfill face. The West Virginia Association of Waste Haulers & Recyclers also asked the WVDEP to require a prominent sign posted at each landfill to underscore the penalty for violating the mandatory disposal provisions of the West Virginia Code. The WVDEP declined to make these requested changes explaining that they were outside the scope of the proposed revisions, the purpose for the public notice, and the impetus for the revisions.   

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

USEPA Updates Chemical Export Notification Requirements Under TSCA

On September 3, 2009, the USEPA released an updated table that lists more than 200 chemicals that are or have been subject to final Toxic Substances Control Act (TSCA) Section 4 test rules and/or enforceable consent agreements (ECAs) issued by the USEPA under the TSCA Existing Chemicals Testing Program. The table, which is identified as the “Sunset Dates of Chemicals Subject to Final TSCA Section 4 and Related 12(b) Actions, Modified on September 1, 2009,” provides the following information:

·     Each chemical compound in ascending Chemical Abstract Service (CAS) Registry number order.

·     The Federal Register (FR) and Code of Federal Regulations (CFR) citations.

·     Sunset date/status for export notification requirements.

USEPA states that subject chemical substances or mixtures will remain in the table for historical as well as information purposes, even when those chemical substances or mixtures have sunset and TSCA Section 4 final test rules and enforceable consent agreements/orders are no longer applicable.   Finally, the USEPA states that it plans to use the expanded information in the table to revise and update that table that is currently found at 40 CFR 799.18. Information regarding the specific TSCA Section 12(b) export notification requirements are found in 40 CFR 707 Subpart D. USEPA’s announcement and updated table are available at www.epa.gov/oppt/chemtest/pubs/sunset.html. 

 

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

Proposed Covered Electronic Device Takeback Program: WVDEP Responds to Comments

The West Virginia Department of Environmental Protection (WVDEP) has responded to comments on the proposed Covered Electronic Device Takeback Program Rule, 33 CSR 11, that the agency proposed as required by S.B. 746 that took effect in June 2008. The 2010 Legislature will likely adopt a version of the proposed rule, and the WVDEP’s response to comments provides guidance for manufacturers selling or interested in selling computers, monitors, televisions, digital picture frames and other electronic devices in West Virginia as well as counties and municipalities interested in obtaining funding to stage electronic takeback events or establish long-term takeback/recycling programs for electronic devices. The WVDEP’s response to comments may also be of interest to retailers and consumers of electronic devices seeking access to the manufacturers authorized to sell or lease their products in West Virginia. 

Senate Bill 746 added six new sections to The A. James Manchin Rehabilitation Environmental Action Plan, which are codified at W. Va. Code §§22-15A-24 through 29, relating to implementing a takeback program for certain electronic devices with manufacturers. The proposed rule would establish procedures for manufacturers of covered electronic devices (CEDs) to register their brands with the state and pay the required annual registration fee. During the first year of the program, the initial registration fee is $10,000 per manufacturer that has not implemented a takeback program in West Virginia. The fee for all subsequent years for non-participating registered manufacturers is $5,000. A fee of $3,000 is required if an approved takeback or recycling program has been implemented in the prior year in West Virginia, and the fee for all subsequent years for participating manufacturers is $500. The proposed rule would also establish the Covered Electronic Device Grant Program, which would allow counties and municipalities to receive grants to stage electronic takeback events or establish long-term take back/recycling programs. Written comments were submitted by the Information Technology Industry Council (ITI), which represents manufacturers of computers, televisions, printers, and other electronic equipment, and two manufacturers, 3M Touch Systems, Inc. (3M) and Eastman Kodak Company (Kodak). 

 In response to a comment by ITI that the legislation did not make clear which manufacturers are supposed to pay registration fees to the state under the law, the WVDEP stated that the proposed rule specified that two primary criteria must be met before a manufacturer is required to register in West Virginia. Those criteria are: (1) the manufacturer must have manufactured an average of more than 1,000 CEDs per year in a three-year period immediately preceding the initial registration; and (2) the manufacturer desires to sell or lease CEDs in West Virginia. 

ITI also asserted that the legislation indicated that the legislature intended to include only CEDs from consumers and consequently only the manufacturers of devices sold to consumers. The WVDEP disagreed, explaining that manufacturers of CEDs ordinarily do not sell their products directly to the general public, but to distributors and retailers. The WVDEP further explained that as a result manufacturers could not control the ultimate destination of the CEDs manufactured. The WVDEP did agree, however, that there may be some confusion regarding the term “consumer” as it is applied in the statute with regard to the Covered Electronic Devices Takeback Program. Because the term “consumer” is used interchangeably with the term “person” throughout the statute, the WVDEP agreed to add a definition of “consumer” to the proposed legislative rule. The definition that the WVDEP agreed to add will provide that ,a consumer is “a natural person or resident, corporation, firm, partnership, agency, association, organization or society that resides in West Virginia and has legally purchased or is in legal possession of a CED.” 

ITI also requested clarification for the products covered by the “video display device” definition, asserting that the definition could include many devices other than computers, monitors, laptops, and televisions. The WVDEP responded that the rule defines a video display device as an electronic device with an output surface (a screen) that displays or is capable of displaying moving graphical images, regardless of the technology used to attain those images. The WVDEP explained that the definition is intended to accommodate future changes in technology and is not intended to be limited to a few specific products.

ITI along with 3M, a member company which manufactures touch screen monitors for business, industrial, medical, educational, and governmental usage, urged the WVDEP to clarify the exemption for “video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment” based on the design and intended use of the CED. Both ITI and 3M offered the following exemption language:

A covered electronic device that is functionally or physically a part of, or connected to, or integrated within a larger piece of equipment or system designed and intended for use in an industrial, governmental, commercial, research and development, or medical setting, including but not limited to diagnostic, monitoring, control or medical products (as defined under the Federal Food, Drug, and Cosmetic Act), or equipment used for security, sensing, monitoring, anti-terrorism, emergency services purposes or equipment designed and intended primarily for use by professional users.

 

The WVDEP declined to adopt the corrective language suggested by ITI and 3M. The WVDEP interprets the exemption in the definition of “covered electronic device” to be based on the physical characteristic of the CED, not the use of the CED. The WVDEP finds the words “contained within” in the statutory definition are sufficient to convey that the exemption applies only to those CEDs that are too bulky or cumbersome to be reasonably transported to a takeback center or mailed back to the manufacturer.

3M asked the WVDEP to add language to the proposal clarifying that the state website listing manufacturers authorized to sell or lease their products in West Virginia also reference the possibility that industrial/commercial equipments is exempt and therefore a manufacturer selling that equipment may not be listed. The WVDEP agreed to incorporate 3M’s suggestion and also stated that the website would provide that CED manufacturers that manufacture less than 1,000 units, on average, over a three-year period are exempt from the registration policy process. 

Finally, 3M requested that the WVDEP add a small volume exclusion to the proposed rule. To illustrate, 3M explained that a small volume exclusion would allow items such as specialty devices for the impaired to enable them to use computers or view screens on monitors. 3M suggested a graduated fee scale based on estimated market share, rather than the large initial fee, with no graduated fee scale, that WVDEP used for the proposal. 3M also suggested that the regulatory section on manufacturer registration be clarified to refer to 1,000 units sold in West Virginia. The WVDEP missed the point of 3M’s concerns and summarily responded that the statute and the proposed rule currently allow for a small volume exclusion, noting that the registration requirements do not apply to manufacturers that manufacture an average of less than 1,001 CEDs per year in a three year period immediately preceding the initial registration. 

In its comments, Kodak, which manufactures digital picture frames as well as cameras, printers, and other consumer equipment, requested clarification of the products covered by the “video display device” definition that is included within the regulatory definition of CED. While the primary function of the digital picture frames manufactured by Kodak is to display still photographic images, some of its devices have the capability to display video images. Kodak commented that the regulatory definition suggests any “video-enabled” product could also be considered a CED. Kodak maintained that such an interpretation would “broaden the scope of products beyond what other states are regulating as [CEDs]”. Kodak asserted that the Legislature intended “to cover those products that are most prevalent in the waste stream and are already covered by other state electronic recycling laws,” i.e., computers, monitors, and televisions. Disagreeing with Kodak’s view, the WVDEP stated that a digital picture frame meets the criteria of a CED if it has a screen greater than four inches, measured diagonally, and displays or is capable of displaying moving graphical images. The manufacturer of a digital picture frame meets the criteria of a CED and is subject to the registration requirements if the quantity threshold is satisfied and the product is sold in West Virginia. 

 

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

Obama Administration EPA May Reverse Agency Position on Industrial Wipes

October 15, 2009 the Obama Administration EPA took steps which appear to set the stage for a reversal of a proposed rule exempting industrial wipes from classification as hazardous waste. November 20, 2003, the Bush Administration EPA proposed to conditionally exclude from the definition of solid wastes, and therefore classification as hazardous waste, reusable shop towels, rags, disposable wipes, and paper towels (collectively referred to as "wipes")to be disposed of or sent for cleaning. The proposal affects contaminated industrial wipes being sent to both landfill and non-landfill (e.g., laundries and combustion) facilities and is applicable to: industrial wipes exhibiting a hazardous characteristic (i.e., ignitability, corrosiveness, reactivity or toxicity) due to use with solvents; or industrial wipes contaminated with F001-F005 spent F-listed solvents or comparable P- and U-listed commercial chemical products that are spilled and cleaned up with industrial wipes. The classification of solvent contaminated industrial wipes as hazardous waste had led to complex and absurd distinctions. For example if a wipe was sprayed with a solvent and then used for cleaning it would not be classifiable as an F001-F005 hazardous waste, but if the surface to be cleaned were sprayed with the same solvent prior to wiping the wipe would be characterized as a F001- F005 hazardous waste.  

Because of risk concerns, EPA'S 2003 proposal did provide that industrial wipes contaminated with benzene; carbon tetrachloride; chlorobenzene; cresols (o, m, p); methyl ethyl ketone (MEK); trichloroethylene; 2-nitropropane; nitrobenzene; pyridine; tetrachlroethylene; and methylene chloride cannot be disposed in municipal or other non-hazardous waste landfills. 

Now EPA has conducted a revised risk analysis, which was peer reviewed, of updated data and information, including the use of a newly developed landfill model. The revised risk analysis shows that 8 of the 20 solvents evaluated could pose a potential health risk if disposed of in an unlined municipal solid waste landfill. The revised risk analysis also shows one (tetrachloroethylene) of the 20 solvents evaluated has a potential health risk if the wipes or laundry sludge are disposed in a composite lined landfill.  

The public comment period on the revised risk analysis will be open for 60 days after the notice is published in the Federal Register.  

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

West Virginia’s Waste Rules: 2009 Revisions Proposed by WVDOT and WVDEP

The West Virginia Department of Transportation (WVDOT) and West Virginia Department of Environmental Protection (WVDEP) are proposing revisions to three waste-related rules for the 2010 West Virginia Legislative Session. The three rules and proposed revisions are as follows:

Ø                  The WVDOT – Division of Highways is proposing revisions to 157 C.S.R. 7, “Transportation of Hazardous Wastes upon the Roads and Highways”. As its name indicates, Series 7 regulates the transportation of hazardous wastes by vehicle upon the roads and highways of West Virginia. The regulations apply if the transport requires a manifest under Section 6 of the West Virginia Hazardous Waste Management Rule, 33 C.S.R. 20. The current rule incorporates by reference federal and state statutes and regulations in effect as of July 1, 2007 and July 1, 2008, respectively. The proposed revisions merely change the dates to July 1, 2008, to incorporate changes to the federal regulations at 40 C.F.R. and 49 C.F.R. and to July 1, 2009 to incorporate changes made last year to the West Virginia Hazardous Waste Management Rule, 33 C.S.R. 20. The changes are necessary to maintain full federal funding of West Virginia’s hazardous waste program. The proposed rule was filed in the Office of the West Virginia Secretary of State June 26, 2009, and the comment period ends August 1, 2009.

Ø                  The WVDEP – Division of Water and Waste Management is proposing revisions to 33 C.S.R. 1, “Solid Waste Management Rule” (SWMR). The proposed revisions are in Section 4 concerning landfill performance standards and include removing the requirements in 33 C.S.R. § 33-1-4.12.b.3 that free day tonnage count toward monthly/daily totals. The revised language reads: “Free day tonnage must be included in each monthly report, but shall not count against the facility’s monthly or daily tonnage limit.” The proposed rule would also clarify the definition of pick-up truck. Section 4.14.a.2 of the current rule defines a “pick-up truckload” in terms of cargo weight rating and reads as follows: “‘One (1) pick-up truckload, or its equivalent’ means a vehicle manufacturers specified or recommended cargo weight rating. The cargo weight rating does not include the weight of the vehicle, fuel and passengers. For example, a one-half ton pick-up truck may have a cargo weight rating of 1100 lbs. and one ton pick-up truck may have a cargo weight rating of 2000 lbs”. The proposed rule would define a “pick-up truckload” in terms of weight and reads: “‘One (1) pick-up truckload, or its equivalent’ means no more than five hundred (500) pounds”. In addition, technical revisions and corrections are made throughout the proposed rule. The SWMR was last promulgated in 2006. The proposed SWMR was filed in the Office of the West Virginia Secretary of State June 12, 2009, and the comment period ended July 14, 2009.

Ø                  The WVDEP – Division of Waste Management is proposing revisions to 33 C.S.R. 20, “Hazardous Waste Management System” (HWMR). The proposed rule would adopt and incorporate by reference the federal regulations set forth in 40 C.F.R. Parts 260 and 279 that are in effect as of June 1, 2009, with the exception of two federal amendments that U.S. EPA is currently reconsidering. The two exceptions are: (1) the “Revisions to the Definition of Solid Waste” that was published in the Federal Register on October 30, 2008 (73 Fed. Reg. 64668); and (2) the “Expansion of RCRA Comparable Fuel Exclusion” that was published in the Federal Register on December 19, 2008 (73 Fed. Reg. 77954). In addition to updating the date of the federal rules incorporated by reference, the proposed rule would adopt two new federal rules: the Academic Laboratory Waste Rule published on December 1, 2008 (73 Fed. Reg. 72912) and Amendment to Hazardous Waste Code F019 published on June 4, 2008 (73 Fed. Reg. 31756). The Academic Laboratory Waste Rule allows alternative requirements for hazardous waste determination and accumulation of unwanted materials at laboratories owned by colleges and universities and other affiliated entities. The Amendment to Hazardous Waste Code F019 expands the exclusion for F019 waste code, sludges generated from the chemical conversion coating of aluminum using a zinc phosphating process. The F019 waste code exclusion applies only to the automobile or light truck manufacturing industry. The HWMR was last promulgated in 2009. The proposed HWMR was filed in the Office of the West Virginia Secretary of State June 10, 2009, and the comment period ended July 21, 2009. For additional information on the waste rules being proposed by the WVDOT and WVDEP for adoption by the 2010 West Virginia Legislature, 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.