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Hazardous Waste Generator Requirements

The federal Resource Conservation and Recovery Act (RCRA) provides a systematic structure for managing hazardous waste. The Environmental Protection Agency (EPA) identifies hazardous waste generators as any person, by site, whose processes or actions create hazardous waste. Generators are separated into three categories based upon the quantity of hazardous waste they produce:

·         Large Quantity Generators (LQGs) generate 1,000 kilograms per month or more of hazardous waste, more than 1 kilogram per month of acutely hazardous waste, or more than 100 kilograms per month of acute spill residue or soil.

 

·         Small Quantity Generators (SQGs) generate more than 100 kilograms, but less than 1,000 kilograms, of hazardous waste per month.

 

·         Conditionally Exempt Small Quantity Generators (CESQGs) generate 100 kilograms or less per month of hazardous waste, or 1 kilogram or less per month of acutely hazardous waste, or less than 100 kilograms per month of acute spill residue or soil.

 

Hazardous waste as defined in 40 CFR 261.3 is a solid waste that is not specifically excluded as a hazardous waste and falls within two distinct categories:

 

·         It is a listed hazardous waste in Subpart D of 40 CFR 261; or

 

·         It is a characteristic hazardous waste, which is not a listed waste, but that exhibit ignitability, corrosivity, reactivity, or toxicity. 

 

Prior to the storage, treatment or disposal of any waste a determination whether the material is hazardous or nonhazardous is required by 40 CFR 262.11. The generator characterizes hazardous waste based on the aforementioned criteria. If the characteristics of the waste is unidentifiable through available information, including material safety data sheets (MSDS) or other data, testing may be required. 

 

If onsite treatment eliminates the hazardous characteristics, the material may no longer be considered a hazardous waste. Documentation of this process and the volume of the material must be maintained. Other regulations regarding treatment may apply and a thorough review of treatment process and resultant by-products is recommended. Additionally, State requirements for onsite treatment that eliminates hazardous characteristics may be more stringent than RCRA regulatory requirements. 

 

General Management for Hazardous Wastes

 

Each site where non-exempt hazardous waste is generated is required to obtain its own site specific EPA hazardous waste generator identification (ID) number.   The issuance of the ID number may be processed through the State if authorized by the EPA. 

 

A LQG may accumulate hazardous waste on-site for 90 days or less without obtaining a permit or without having interim status, provided that the facility complies with the management standards in Part 265. A SQG may accumulate up to 6,000 kg of hazardous waste for 180 days or less without obtaining a permit or without having interim status, provided that the facility complies with 40 CFR 262.34(d). If the SQG waste shipment is transported off-site for disposal in excess of 200 miles, the waste can be stored onsite for a maximum of 270 days. The time period for waste accumulation begins on the day accumulation first begins and containers must be marked with date accumulation first begins. All accumulation containers must be clearly labeled as “hazardous waste”. 

 

A 30-day accumulation extension for the EPA Regional Administrator or the State RCRA program coordinator is available for each of the 90-day, 180-day, and 270-day accumulation periods, if uncontrolled or unforeseen circumstances prohibit ship of the waste within the allotted time frame.

 

Facilities may accumulate up to 55 gallons of hazardous waste or 1 quart of acute hazardous waste in a satellite accumulation area at or near the area where the waste is initially generated and removed to the main hazardous waste storage area or transport the waste off site within three days of reaching the maximum quantity allowable. Satellite accumulation containers must have appropriate labeling and the operator must maintain the container in good condition in accordance with 40 CFR 262.34(c).  

 

A CESQG is not subject to the management standards provided in 40 CFR Parts 262 through 270 assuming they do not generate more than 100 kilograms or less per month of hazardous waste, or 1 kilogram or less per month of acutely hazardous waste, or less than 100 kilograms per month of acute spill residue or soil.   Hazardous wastes must be sent to a facility property licensed or authorized to manage hazardous waste.

 

Each site for LQG, SQGs, and CESQGs should maintain a log or tracking of the generation per month. Maintaining a log is not required; however, it is the most reliable method to determine and document what is generated each month.  

 

Transportation Requirements

 

Preparation for shipping of hazardous waste off site for treatment, storage, or disposal requires marking, labeling, and placarding the waste according to US Department of Transportation (DOT) requirements.   Additional DOT requirements for shipment of the waste are located in 49 CFR Parts 172 through 179. The shipment must include the properly completed Uniform Hazardous Waste Manifest signed by the generator, the transporter, if different than the generator and the receiving facility upon receipt of the shipment.  

 

The statement on the Uniform Hazardous Waste Manifest must state:

 

I certify that the waste minimization statement identified in 40 CFR 262.27(a) (if I am a large quantity generator) or (b) (if I am a small quantity generator) is true.

 

Record Keeping and Reporting

 

A generator must keep a copy of each manifest signed in accordance with §262.23(a) for three years or until the generator receives a signed copy from the designated facility which received the waste. The signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter.

 

LQGs and SQGs that ship hazardous waste off site must submit a Biennial Report to EPA each even numbered year. The report compiles data concerning waste shipped off site, where the waste was shipped and the manner in which the waste was treated, among other information. The Biennial Report must be retained for three years from the due date of the report.

 

The generator also must keep records of test results, waste analyses, and other determinations performed in accordance with §262.11 for a minimum of three years.

 

Waste Minimization

 

RCRA mandates, where feasible, that the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible (RCRA §1003(b)). A Waste Minimization Program is required for LQGs while all generators are also included in the mandate

 

Small quantity generators must make a good faith effort to minimize waste generation and select the best waste management method that is available and affordable.

 

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

Sierra Club Petitions Department of Energy for Moratorium on New LNG Export

In light of the abundance of natural gas that has been unlocked from deeply buried shale gas plays, the United States is poised to become a net exporter of natural gas through the use of liquefied natural gas (“LNG”) terminals. The environmental activist group Sierra Club, however, is actively trying to prevent the development of the infrastructure needed for large-scale LNG export to become a reality. Sierra Club recently petitioned the Department of Energy to place a moratorium on approving new LNG export facilities until the agency performs a programmatic environmental impact assessment on LNG export and revises its rules for evaluating applications for LNG terminals. 

 

Sierra Club’s opposition to LNG export terminals is just one of many fronts on which this group is actively fighting the natural gas industry. On its “Beyond Natural Gas” website, Sierra Club claims:

 

Exporting Liquefied Natural Gas (LNG) to overseas markets is a dirty, dangerous practice that lets the industry make a killing at the expense of human health.

 

The U.S. Department of Energy’s Office of Fossil Energy has regulatory authority over LNG terminals and evaluates all applications for LNG import and export. Currently, sixteen (16) applications for LNG export facilities are pending. If all sixteen applications were approved in full, they would have the capacity to export 28.3 billion cubic feet of natural gas per day, a ten-fold increase over the country’s current natural gas exports.

 

For the Office of Fossil Energy to green light LNG terminals, the agency must determine that the export of gas is “consistent with the public interest.” The Natural Gas Act requires that LNG exports to countries with which the U.S. has entered free trade agreements “shall be deemed to be consistent with the public interest and applications for such importation or exportation shall be granted without modification or delay.” 15 U.S.C. §717b. Accordingly, the agency has already authorized the sixteen facilities to export LNG to the handful of countries with which the U.S. has entered free-trade agreements.¹ Currently, many of the largest and most lucrative markets for LNG export are countries without free-trade agreements with the U.S., such as Japan, India, and all of Europe. 

 

The Office of Fossil Energy can approve the export of LNG to non-free trade countries only after soliciting public comments, protests, and motions to intervene and then determining that the proposed project is consistent with the public interest. Sierra Club boasts that it has intervened in opposition to all of the applications for LNG export terminals that have come before Office of Fossil Energy. Thus far, only one LNG export terminal has been granted permission to ship LNG to non-free-trade countries.

 

Not content with merely opposing LNG exports on a project-by-project basis, Sierra Club recently petitioned the Office of Fossil Energy to solicit public comments on its policy of evaluating proposed LNG export projects and promulgate new regulations requiring that domestic consumers, domestic industry, and environmental and public health implications be considered when evaluating an application for LNG export facilities. Sierra Club also petitioned the agency to place a moratorium on new approvals of export terminals until a full programmatic environmental impact assessment of LNG export is conducted. 

 

Regardless of whether Sierra Club’s petition to the DOE is successful, this well-financed group is determined to oppose the development and marketing of natural gas in every conceivable way.  

 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author, see here.

 

[1] These free-trade countries include Australia, Bahrain, Canada, Chile, Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Jordan, Mexico, Morocco, Oman, Peru, and Singapore.

EPA Proposes Changes to Requirements for Storage Tanks to Accommodate Large Increase in Natural Gas and Oil Production

Due to the substantial increase in higher volume liquid storage required for natural gas and oil shale production, such as in the Marcellus, Utica, Bakken, Eagle Ford, Barnett, etc., April 12, 2013 EPA published an update to its 2012 final New Source Performance Standards (NSPS) for storage tanks used in natural gas and crude oil production to streamline some requirements. (71 FR 22126, et. seq) Storage tanks used for temporary storage of liquids produced during in the oil and natural gas production process, before those liquids are moved to a pipeline or sold, can be sources of emissions of volatile organic compounds (VOCs), including benzene. Storage tanks used in oil or natural gas production are subject to EPA’s 2012 New Source Performance Standards (NSPS) for VOCs if they have the potential to emit 6 or more tons of VOCs a year. EPA’s  proposed changes are due to recent information showing that more higher-volume storage tanks will be coming on line than the agency originally estimated when the August 16, 2012 final NSPS standards were published and petitions for reconsideration were filed. Based on information supplied to EPA, the Agency now estimates 970 storage vessels per month being installed at this time and expected in the future, and over 20,000 affected storage vessels were constructed, modified or reconstructed between the August 23, 2011, proposal date of the NSPS and April 12, 2013. (NSPS standards are applicable to facilities constructed modified or reconstructed after the proposal date).  

 

EPA now believes there will not be sufficient control equipment available for tanks to meet the original Oct. 15, 2013 deadline for storage tanks to control VOC emissions by 95 percent. The proposed changes to the rule are intended to provide time for manufacturers to produce sufficient control equipment and will help prevent a slow-down of oil and natural gas production. 

 

In summary EPA’s revisions: adjust requirements for tanks built before April 12, 2013; establish alternative emission limits for tanks where emissions have dropped; simplify test protocols where control equipment has been installed; clarify the types of tanks subject to the rule; streamline compliance monitoring requirements while EPA addresses monitoring issues raised in reconsideration petitions; and update requirements for submitting annual reports. Public comment is due May 13, 2013 and EPA anticipates taking final action on today’s proposal by July 31, 2013.

 

Exclusion from Control Devices for Certain Tanks:

 

EPA is proposing to address storage tanks in two groups in order to focus the limited control equipment currently available on the tanks likely to have the highest emissions.

·         Group 1 tanks are defined as tanks constructed between Aug. 23, 2011 and April 12, 2013

 

o   Instead of installation of a control device by April 15, 2014, EPA proposes an initial notification by October 15, 2013, to inform regulatory agencies of the existence and location of the vessels.

o   If there is a change that potentially would increase the tank’s emissions-- such as the addition of a well supplying the tank or the refracture of an existing well -- the owner/operator would have to install controls to reduce VOC emissions by 95 percent within 60 days of the change or by April 15, 2014, whichever is later.

 

EPA’s rationale for this exemption from the control device requirements is that emissions from tanks generally decline over time, because the amount of liquid that moves through the tank declines as production from a well slows and for those constructed after August 23, 2011 it is likely that many will have less liquid and therefore less emissions.

 

o   Group 2 tanks: Tanks that are constructed after April 12, 2013 would have to have controls to reduce VOC emissions by 95 percent in place by April 15, 2014 or within 60 days after startup, whichever is later.

 

Alternative Emissions Limit:

 

EPA also is proposing an alternative emissions limit for storage tanks that would allow owners/operators to either:

o   Reduce VOC emissions at a tank by 95 percent, as required in the original rule; or

o   Demonstrate emissions from a tank have dropped to less than 4 tons per year of VOCs without emission controls. The alternative limit also reflects the decline in emissions that occurs at most tanks over time and allows owners/operators to shift control equipment to higher-emitting tanks. To qualify for this emissions limit, owners /operators would have to document that emissions had been below 4 tons for at least 12 consecutive months.

o   If emissions increase (at or above the 4 ton-per-year limit), owners/operators would have 30 days to meet the 95 percent reduction requirement.

 

Clarifying test protocols for control equipment:

 

The 2012 NSPS allows owners/operators to use manufacturer-tested emission control device models (combustors) that have been demonstrated to reduce VOC emissions from storage tanks by 95 percent, rather than requiring field performance testing of these devices. The proposal aligns the protocol that emission control manufacturers must use in testing the controls with the testing protocol required in EPA’s 2012 air toxics regulations for storage tanks. EPA also is proposing to allow tank owners/operators to use control devices that are designed to reduce VOC emissions by 95 percent, while the agency reviews issues raised in the reconsideration petitions related to field testing protocol requirements. EPA expects to address this issue by the end of 2014.

Change for Monitoring Requirements for Tanks That Already Have Controls:

 

For the tanks which already installed control equipment designed to 95 percent efficiency, monitoring requirements are relaxed. The 2012 final NSPS required that tank owners/operators conduct a performance test and use a continuous parametric monitoring system (CPMS) to demonstrate that they are meeting requirements to reduce VOC emissions from tanks by 95 percent. The proposed compliance monitoring provisions include only monthly inspections of covers, closed-vent systems and control devices. These procedures were selected as they require little or no specialized compliance monitoring training or equipment.

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

EPA Issues Vapor Intrusion Guidance Documents for Public Comment

In April 2013, EPA issued the following long-awaited vapor intrusion (VI) draft Guidance Documents for public comment:

 

·         Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites.

·         OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air.

 

Both draft Guidance Documents are available at www.epa.gov/oswer/vaporintrusion/. Public comments can be submitted through May 24, 2013 at Regulations.gov (EPA-HQ-RCRA-2002-0033). 

 

As historical background, the EPA, Office of Solid Waste and Emergency Response (OSWER) issued its first draft VI guidance to evaluate the subsurface VI pathway in November 2002. In December 2009, the Office of the Inspector General (OIG) recommended that EPA’s 2002 Draft VI Guidance be updated and incorporate the following:

 

·         Updated toxicity values.

·         Multiple lines of evidence be used to evaluate VI.

·         Identify how risks from petroleum hydrocarbon vapors should be addressed.

·         How the guidance applies to Superfund Five Year Reviews (FYRs).

·         When or whether preemptive mitigation is appropriate.

·         Operations, maintenance, and termination of mitigation systems.

·         When institutional controls (ICs) and deed restrictions are appropriate.

 

In March 2011, OSWER generally agreed with OIG’s recommendations to finalize the VI guidance. Both VI draft Guidance Documents released by EPA in April 2013 reflect EPA’s efforts to address OIG’s recommendations.

 

Since EPA issued its Draft VI Guidance in November 2002, VI as a potential migration pathway for exposure to environmental contamination in subsurface soil and groundwater has developed into a, if not the, driver of potential human health risk at contaminated sites in West Virginia (e.g., brownfields, voluntary remediation, and leaking underground storage tank). Hence, in addition to soil, groundwater, surface water, and sediment environmental media that we have historically assessed and if necessary, remediated, VI now is often a major driver in the overall cost of assessment and remediation at such properties. In addition, as part of the upcoming Phase I ESA standards to be released by ASTM during the second half of 2013, the VI pathway will now require evaluation as part of establishing the various liability protections available under Superfund.

 

While assessing and remediating environmental contamination associated with soil, groundwater, surface water, and sediment has been occurring since at least the early 1980s in the United States, VI is a relatively new contaminant pathway of concern that has really only come into its own since the early to middle 2000s. So, for those who are not familiar with the concept of vapor intrusion, EPA provides the following definition of VI:

 

“Certain hazardous chemicals that are released into the subsurface as liquids or solids may form hazardous gases (i.e., vapors) that migrate through the vadose zone and eventually enter buildings as a gas by migrating through cracks and gaps in basement floors and walls or foundations, including perforations due to utility conduits and any other openings (e.g., sump pits). Vapor intrusion is the general term given to migration of hazardous vapors from any subsurface contaminant source, such as contaminated soil or groundwater, through the vadose zone and into indoor air. Vapor intrusion can occur in a broad range of land use settings, including residential, commercial, and industrial, and affect buildings with virtually any foundation type (e.g., basement, crawl space(s), or slab on grade). Vapor intrusion is similar to radon intrusion in that mechanisms of subsurface vapor migration and soil gas entry into buildings are similar for radon and volatile, hazardous chemicals of concern to EPA’s programs.”

 

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

EPA Issues Major Reinterpretation of Excluded PCB Products

EPA has clarified the meaning of the term “Excluded PCB Products” pursuant to the Toxic Substances Control Act (TSCA) and is signaling its intention to deemphasize the regulation of low concentration PCBs in commercial products. TSCA section 6(e) generally prohibits the manufacture, processing, distribution in commerce and use of PCBs in the United States. However, EPA has historically excluded certain PCB products from these prohibitions. For example, Excluded PCB Products contain PCBs at concentrations less than 50 parts per million (ppm) and are defined as follows:

·         Non-aroclor inadvertently generated PCBs generated as a byproduct or impurity resulting from a chemical manufacturing process.

·         Products contaminated with aroclor or PCB materials from historic PCB uses (e.g., investment casting waxes).

·         Recycled fluids and/or equipment contaminated during use of the products described above (e.g., heat transfer and hydraulic fluids and equipment and other electrical equipment components and fluids).

·         Used oils meeting the following criterion:

o   The products or source of the products were legally manufactured, processed, distributed in commerce, or used before October 1, 1984.

o   The products or source of the products were legally manufactured, processed, distributed in commerce, or used pursuant to authority granted by EPA regulation, by exemption petition, by settlement agreement, or pursuant to other EPA-approved programs.

o   The resulting PCB concentration (less than 50 ppm) is not a result of dilution, or leaks and spills of PCBs in concentrations over 50 ppm.

EPA published this Excluded PCB Products reinterpretation in response to a request by the Institute of Scrap and Recycling Industries, Inc. (ISRI) on February 24, 2011 to clarify the management of plastic separated from residue generated as part of automobile shredding. Shredder residue can contain low concentrations of PCBs (less than 50 ppm). Management of the plastic separated from shredder residue as a PCB remediation waste had decreased the recycling industry’s ability to reuse this material and had increased recycling operation costs nationwide. If the plastic separated from shredder residue was clearly understood to be an Excluded PCB Product under TSCA, then the regulatory burden would be substantially decreased for the recycling industry.

 

In response to the ISRI request, EPA published a notice for public comments in the Federal Register on December 12, 2012 and received a total of 27 comments. After review of the comments, EPA has decided to adopt the interpretation discussed in the December 12, 2012 notice. EPA’s interpretation relies principally on the regulatory provisions for Excluded PCB Products under TSCA and was published in the Federal Register on April 5, 2013, Polychlorinated Biphenyls (PCBs); Recycling Plastics from Shredder Residue, Volume 78, No. 66, pages 20640 through 20642. In this notice, EPA concluded the following:

“EPA is adopting the generic 50 ppm exclusion for the processing, distribution in commerce, and use, based on the Agency’s determination that the use, processing, and distribution in commerce of products with less than 50 ppm PCB concentration will not generally present an unreasonable risk of injury to health or the environment. EPA could not possibly identify and assess the potential exposures from all products which may be contaminated with PCBs at less than 50 ppm. EPH has concluded that the costs associated with the strict prohibition on PCB activities are large and outweigh the risks posed by these activities.”

In the April 5, 2013 notice, EPA noted that the burden of demonstrating that a regulatory exclusion applies rests with the party seeking that exclusion. EPA stated that shredders and their suppliers that follow the ISRI Voluntary Procedures for Recycling Plastics from Shredder Residue (October 24, 2012) can treat their feedstock as an Excluded PCB Product, unless they have information specifically noting otherwise. Feedstock materials and residue containing concentrations of PCBs greater than 50 ppm cannot qualify as an Excluded PCB Product.

 

Finally, EPA noted that there is uncertainty as to the source of PCBs in shredder residue. However, EPA stated that since PCBs in general, and aroclors in particular have not been intentionally produced in the United States since the prohibitions in TSCA section 6(e) became effective, the aroclors and PCBs associated with plastics separated from shredder residue were likely manufactured prior to 1984 and therefore, meet EPA’s interpretation of Excluded PCB Products under TSCA. 

 

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

Toxic Release Inventory Reporting for 2012 Data

The TRI-MEweb is now available for filing Toxic Release Inventory reports for 2012 data.  

2012 Forms and Instructions are available here. 

US EPA has updated the available training materials.  The training materials are available here.  

The Basic Concepts training module covers: 

• If your facility is covered by EPCRA Section 313 (the Toxics Release Inventory);
• If your facility is covered, for which chemicals your facility must submit a TRI report.
• Information on making the release and other waste management calculations and estimates;
• When the Form A Certification statement can be used instead of the Form R;
• Reporting exemptions(i.e., particular uses of TRI chemicals that don’t have to be included in TRI reports); and
• General TRI program and process information.

The Advanced Concepts training module covers:

• Advanced issues related to threshold determinations, TRI reporting, and exemptions;
• Information on reporting requirements for PBTs (such as lead, mercury, PACs, etc.) and other chemicals (such as hydrochloric and sulfuric acid aerosols, ammonia, metal compounds nitrate compounds, and metal cyanides) with special TRI reporting considerations;
• General TRI program and process information; and
• How to use the TRI-MEweb online reporting application, and the CDX electronic submission process.

New information on showcasing sustainability is available

New addition to the TRI list 

The administrative stay on the reporting of hydrogen sulfide was lifted by US EPA.  The TRI report due on July 1, 2013 will be the first report that will require hydrogen sulfide if applicable.  

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.

Department of Transportation (DOT) Changes Requirement for Shipping Hazardous Materials

Effective January 1, 2013 DOT regulation 49 CFR §172.202(b) requires that the UN/NA number, used for describing hazardous materials, must precede the shipping name on the shipping manifest and bills of lading.   The description of hazardous material for shipment includes the UN/NA number, the proper shipping name, hazard class and packing group (if applicable). 

UN numbers are four-digit numbers designated by the United Nations Committee of Experts on the Transport of Dangerous Goods and can be accessed at http://www.unnumber.net .   There are approximately 3,500 UN numbers, which identifies the material within a general hazard class.  If the material poses multiple dangers, additional risk identification numbers are required as specified within the UN number listing. 

NA numbers serve the same purpose as UN numbers and are issued by the DOT.  Some materials may have a NA number, but not have a UN number.  There are approximately 2,000 NA numbers that provide descriptions for transporting hazardous materials in the United States. 

The following is an example of a DOT shipping manifest description: 

RQ, UN1587, Copper cyanide, 6.1, PGII, Marine Pollutant 

Additional requirements for shipping of hazardous materials are located in Title 49 CFR Parts 100-185. 

The Federal CFRs can be accessed at http://www.ecfr.gov/.  

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

EPA Announces Agenda for Waste Rules for 2013 and Beyond

The U.S. Environmental Protection Agency (EPA) has posted its Fall 2012 Semi-Annual Regulatory Agenda, dated December 24, 2012, online at http://www.reginfo.gov and at http://www.regulations.gov, Document ID: EPA-HQ-OA-2012-0987-0001. Rulemakings that “may have a significant impact on a substantial number of small entities” are identified in EPA’s Regulatory Flexibility Agenda that was published in the Federal Register on January 8, 2013 (78 Fed. Reg. 1624). To learn about EPA’s plans for waste-related regulations, continue reading.

 

EPA’s e-Agenda lists the following “active” waste-related rulemakings, e.g., rulemaking actions that are within a year of proposal or promulgation:

 

Title of Rulemaking	Stage of Rulemaking	Projected Date
Hazardous Waste Requirements for Retail Products; Clarifying and Making the Program More Effective	NODA1	March 2013
Management Standards for Hazardous Waste Pharmaceuticals	Second NPRM2	August 2013
Addition of Subsurface Component to the Hazard Ranking System (HRS)	NPRM	May 2013
Revisions to the National Oil and Hazardous Substances Pollution Contingency Plan; Subpart J Product Schedule Listing Requirements	NPRM	March 2013
Modifications to RCRA Rules Associated with Solvent-Contaminated Industrial Wipes	Final Rule	October 2013
Revising Underground Storage Tank Regulations – Revisions to Existing Requirements and New Requirements for Secondary Containment and Operator Training	Final Rule	November 2013
Hazardous Waste Management Systems: Identification and Listing of Hazardous Waste: Carbon Dioxide (CO2) Streams in Geological Sequestration Activities	Final Rule	April 2013
Rulemaking on the Definition of Solid Waste	Final Rule	April 2013

¹ NODA means Notice of Data Availability.

² NPRM means Notice of Proposed Rulemaking.

 

 EPA’s e-Agenda also includes the following “long-term” waste-related actions:

 

Title of Rulemaking	Stage of Rulemaking	Projected Date
Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Power Producers	Final Rule	TBD
RCRA Smarter Waste Reporting	NPRM	TBD
Hazardous Waste Manifest Revisions – Standards and Procedures for Electronic Manifests	Final Rule	TBD
Revisions to Land Disposal Restrictions Treatment Standards and Amendments to Recycling Requirements for Spent Petroleum Refining Hydrotreating and Hydrorefining Catalysts	NPRM	TBD
Financial Responsibility Requirements Under CERCLA Section 108(b) for Classes of Facilities in the Hard Rock Mining Industry	NPRM	May 2014
CERCLA/EPCRA Reporting Requirements for Air Releases of Hazardous Substances from Animal Waste at Farms	NPRM	December 2013

 

Waste-related rulemakings identified in EPA’s Regulatory Flexibility Agenda as potentially having a “significant impact on a substantial number of small entities” are:

 

Title of Rulemaking	Stage of Rulemaking	Projected Date
Revisions to the National Oil and Hazardous Substances Pollution Contingency Plan; Subpart J Product Schedule Listing Requirements	NPRM	March 2013
Hazardous Waste Management Systems: Identification and Listing of Hazardous Waste: Carbon Dioxide (CO2) Steams and Geological Sequestration Activities	Final Rule	April 2013
Rulemaking on the Definition of Solid Waste	Final Rule	April 2013

 

Finally, the following waste-related rulemakings were listed in the Spring 2011 and/or Fall 2011 online Semi-Annual Regulatory Agenda but are not listed in the Fall 2012 online Semi-Annual Regulatory Agenda:

 

Title of Rulemaking	Stage of Rulemaking	Projected Date
Correction of Errors and Adjustment of CERCLA Reportable Quantities (Revisions to CERCLA Reportable Quantity (RQ) Values for F- and K- Wastes)	Pre-proposal	TBD
National Contingency Plan Revisions to Align With the National Responses Framework	Pre-proposal	TBD
Episodic Generation Rulemaking	Pre-proposal	TBD
Revisions to RCRA Subtitle C Financial Test Criteria	Pre-proposal	TBD
Management of Cement Kiln Dust	Final	TBD
Standards for the Safe and Environmentally Protective Placement of Coal Combustion Residuals as Minefill in Coalmines Not Regulated Under the Surface Mining Control Act	Pre-proposal	TBD

 

Now for a few observations: First, the failure to list in the Fall 2012 online Semi-Annual Regulatory Agenda rulemakings that were listed in the Spring 2011 and/or Fall 2011 online Semi-Annual Regulatory Agenda does not necessarily mean that EPA has abandoned them. Second, EPA’s Rulemaking on the Definition of Solid Waste is no longer listed on EPA’s Regulatory Development and Retrospective Review Tracker (Reg DaRRT) website of “priority” rulemakings. Third, a slight discrepancy of two months exists for the projected date of the final rule on Modifications to RCRA Rules Associated with Solvent-Contaminated Industrial Wipes. EPA’s Reg DaRRT website gives the projected date as October 2013, whereas the Fall 2012 online Semi-Annual Regulatory Agenda gives the projected date as December 2013. The preamble to EPA’s Semi-Annual Regulatory Agenda, however, states that its Reg DaRRT website provides “earlier and more frequently updated information about Agency regulations than is provided by the Regulatory Agenda.” Third, although neither EPA’s Fall 2012 online Semi-Annual Regulatory Agenda nor Reg DaRRT provide a date for the final rule titled “Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Power Producers,” EPA represented to the court and parties in a brief it filed on October 11, 2012, in Appalachian Voices v. EPA, No. 1:12-cv-00523-RBW (D.D.C.), that the agency needed until 2014 to review and respond to all of the comments before issuing the final rule.

 

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

EPA Issues Final PCB Bulk Product Waste Reinterpretation

EPA recently posted its final Polychlorinated Biphenyl (PCB) Bulk Product Waste Reinterpretation Guidance on its website at: http://www.epa.gov/osw/hazard/tsd/pcbs/pubs/caulk/reinterpret.htm.  The final guidance, dated October 24, 2012, “allows building material ‘coated or serviced’ with PCB bulk product waste (e.g., caulk, paint, mastics, sealants) at the time of designation for disposal to be managed as a PCB bulk product waste.”  Id. at 1.  The guidance is intended to allow for “accelerated cleanups” of PCB-contaminated building material found in schools and other locations by allowing for more waste to be characterized as PCB bulk product waste rather than remediation waste.  Id. at 2.  The characterization as either PCB bulk product waste or PCB remediation waste is important because it determines the cleanup requirements and disposal options.  Under the Toxic Substances Control Act (TSCA)  regulations at 40 CFR Part 761, PCB bulk product waste, which is defined as waste derived from caulk or paint containing PCBs at 50 parts per million (ppm) or greater, and includes non-liquid bulk debris “from the demolition of buildings and other man-made structures manufactured, coated, or serviced with PCBs,” may be sent to solid waste landfills, while PCB remediation waste, which is defined as “waste containing PCBs as a result of a spill, release, or unauthorized disposal...,” is subject to stricter disposal requirements, such as disposal in TSCA chemical waste landfills.   Id. at 1. 

Under EPA’s previous guidance, building material (e.g., masonry or concrete) contaminated by the migration of PCBs from PCB bulk product waste, such as caulk or paint, was considered a PCB remediation waste.  On February 29, 2012, EPA published notice of a proposed PCB bulk product waste reinterpretation guidance.  77 Fed. Reg. 12293.  The proposed reinterpretation would have modified this guidance to provide that only detached building materials would be labeled remediation waste.  Building components such as window frames where paint had migrated into the substrate would be labeled bulk product waste as long as they were still attached to the original bulk product waste – PCB-laden paint, sealant, or caulk.  Commenters challenged EPA’s logic, noting that the original product, e.g., paint, with likely higher concentrations of PCBs, could be managed as a solid waste and meet less stringent standards, while the substrate likely with lower PCB levels, would have to meet more stringent disposal requirements as remediation waste.  

Under the final guidance, where PCB bulk product waste such as paints have leached into the substrate (e.g., masonry or concrete), EPA will now allow such building material to be managed as a PCB bulk product waste, and meet less stringent standards, provided the materials are “coated or serviced” with PCB paints or caulk or other PCB bulk product waste “at the time of designation for disposal”.  Id. at 2.  However, if at the time of designation for disposal, the paint or caulk has been removed from the substrate or flaked off, then the substrate will be considered a remediation waste.  Additionally, the final reinterpretation guidance allows for the possibility that during a cleanup or demolition process PCB bulk product waste (e.g., caulk, paint, mastics, and sealants) could separate from the contaminated building material before all of the waste is physically placed in the final disposal facility.  As long as the PCB material (e.g., caulk, paint, mastic, or sealant) is attached to the contaminated building material “at the time of designation for disposal,” the “label as PCB bulk product waste would stay with the contaminated building materials.”  EPA is recommending that an abatement plan be developed to document the decision to designate building materials as bulk product waste at the time of designation for disposal.  Id. 

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

Industrial Shop Towels

Does your facility generate shop towels?  Shop towels are commonly used to collect paints, solvents, petroleum products, dyes or other residues associated with industrial machinery. Many facilities recycle their shop towels through an industrial laundry.  If shop towels are discarded, the nature of the contamination associated with the towels determines whether the towels are considered a hazardous or otherwise regulated waste. 

West Virginia has been authorized by the United States Environmental Protection Agency (USEPA) to administer the Resource Conservation and Recovery Act (RCRA).  The West Virginia Department of Environmental Protection (WVDEP) determines how contaminated towels are regulated within the state.  Contaminated shop towels are considered a solid waste. However, if the towels contain a listed hazardous waste or exhibit a characteristic of a hazardous waste, they become a hazardous waste and must be handled as such until they are cleaned.  

The transportation of a hazardous waste generally requires the use of a “cradle-to-grave” manifest.  However, facilities classified as either a Conditionally Exempt Small Quantity Generator (generating 100 kilograms or less per month of hazardous waste, or 1 kilogram or less per month of acutely hazardous waste) or a Small Quantity Generator (generating more than 100 kilograms, but less than 1,000 kilograms, of hazardous waste per month) do not need hazardous waste manifests to transport used shop towels for cleaning and re-use. 

The USEPA has recently begun investigating air toxic emissions from industrial laundries in New England that treat shop towels contaminated with volatile organic compounds consisting of methyl ethyl ketone, toluene and xylene.  The USEPA levied a $65,000 penalty against the G&K Services facility in Manchester, New Hampshire and the company has agreed to upgrade their pollution control equipment.  Additionally, 17 industrial laundries in New England reportedly are under investigation by state and/or federal regulators regarding toxic emission controls at their facilities. 

It is likely that additional scrutiny by the USEPA into industrial laundering facilities around the county will follow.  This anticipated scrutiny may well extend to the individual businesses that generate and store industrial shop towels prior to shipment for cleaning. 

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