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EPA’s 2014 Definition of Solid Waste Rule –Exclusions for Hazardous Secondary Materials
Scott C. Dunsmore, CET
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Agenda
• Review the 2008 DSW rulemaking
• Discuss changes to the generator-controlled exclusion
• Examine the new exclusions for:
– Transfers of recycled hazardous secondary materials
– Remanufactured spent solvents
• Discuss effect on other solid waste exclusions
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The 2008 Rule…a Look Back
The 2008 DSW rule provided three exclusion opportunities:
1. Generator-controlled
– Non-land-based units [40 CFR 261.2(a)(2)(ii)]
– Land-based units [40 CFR 261.4(a)(23)]
2. Transfer-based [40 CFR 261.4(a)(24) and (25)]
3. Petitions [40 CFR 260.30-260.34]
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Issues and Concerns With the 2008 Rule
Petitioners argued that the 2008 DSW rule lacked:
• Definitions for key terms associated with the exclusions
• Proper management standards for storing, handling, and shipping hazardous secondary materials
• Standards for emergency preparedness and planning
• Consideration for environmental justice concerns
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The New Rule vs. the 2008 Rule
• Generator-controlled exclusion remains
– Rules consolidated to40 CFR 261.4(a)(23)
– Management, notification, and recordkeeping requirements added
• Petitions remain
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The New Rule vs. the 2008 Rule
• Transfer-based exclusion replaced with a “verified recycler” exclusion
• New exclusion created for “remanufacturing” certain high-value spent solvents
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“Hazardous Secondary Materials”
Hazardous secondary material (HSM) means:
“a secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter.”
[40 CFR 260.10]
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Generator-Controlled
The hazardous secondary material may be reclaimed at:
• The generator’s site
• Another site under the generator’s “control”
• A “toll manufacturer’s site”
[40 CFR 261.4(a)(23)(i)]
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“Control”
Means that the person has “the power to direct the policies of the facility, whether by ownership of stock, voting rights, or otherwise”
• This excludes sites in which a contractor operates the facility on behalf of another person
[40 CFR 261.4(a)(23)(i)(B)]
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Six Conditions for Generator-controlled Exclusion
1. Material is not subject to specific 40 CFR 261.4(a) exclusion or lead-acid batteries
2. Generator must satisfy notification requirements
3. Generator must document legitimacy of recycling
[40 CFR 261.4(a)(23)(ii)]
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Six Conditions for Generator-controlled Exclusion
4. Generator must prove material is not “speculatively accumulated”
5. Material must be “contained”
6. Generator must comply with emergency preparedness requirements
[40 CFR 261.4(a)(23)(ii)]
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Notification
• Generators must submit a written notification to the EPA or state using EPA Form 8700-12
• Notification is required:
– Prior to operating under the exclusion,
– By March 1 of every odd-numbered year, and
– Within 30 days of “stopping”
[40 CFR 260.42 and 261.4(a)(23)(ii)(C)]
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Notification Contents
• Type and amount of secondary hazardous material
• Method of storage/accumulation
• Length of time accumulated prior to reclamation
• Regulatory reference of exclusion
• Date facility expects to start managing under the exclusion
[40 CFR 260.42(a)]
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Notification Contents
• EPA waste numbers
• Indication if land-based units will be used
• Quantity to be managed annually
• Certification (by “authorized representative”)
[40 CFR 260.42(a)]
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Documenting Legitimacy
Generator must maintain documentation that demonstrates that the:
• Hazardous secondary material provides a “useful contribution” to the recycling process,
• Hazardous secondary material is managed as a valuable commodity,
• Recycling process produces a valuable product, and
• Product is comparable to legitimate products
[40 CFR 260.43(a)]
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“Legitimate Product”
The product of the recycling process must:
• Have the same levels of Appendix VIII constituents and exhibit same characteristics of an analogous product, or
• Meet widely recognized commodity standards or be returned to the generating process
[40 CFR 260.43(a)(4)]
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Speculative Accumulation
Must mark hazardous secondary material’s storage unit with the date the material is first accumulated
• If placement on the storage unit is not practicable, can maintain an inventory log (or similar)
[40 CFR 261.1(c)(8)]
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Storing Hazardous Secondary MaterialsStorage Units
• Under the generator-controlled and verified recycler exclusions, hazardous secondary materials must be “contained” in storage units
• Storage units can be:
– Non-land-based (e.g., containers or tanks); or
– Land-based (e.g. , surface impoundments or piles)
[40 CFR 260.10]
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Storing Hazardous Secondary Materials“Contained”
Three criteria must be met in order for hazardous secondary materials to be considered “contained”
[40 CFR 260.10]
Storage units meeting 40 CFR 264 or 265 standards are presumed to be “contained”
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Conditions for “Contained”Good Condition
1. The unit must be:
• In good shape, and
• Free of leaks or unpermitted releases
[40 CFR 260.10]
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Conditions for “Contained”Properly Marked
2. The identity of the hazardous secondary materials inside a unit must be indicated by either:
• Labeling the unit, or
• A log or similar means
[40 CFR 260.10]
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Conditions for “Contained”Compatibility
3. Unit must be compatible with all materials inside and must be constructed to address fire and explosion
– Different materials in the same unit must be compatible with each other
[40 CFR 260.10]
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Emergency Preparedness
All persons involved with the generator exclusion must comply with 40 CFR 261.410 (comparable to 40 CFR 265, Subpart C)
[40 CFR 261, Subpart M]
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Contingency Planning
• If accumulate ≤ 6,000 kg of hazardous secondary material (HSM), then also comply with 40 CFR 261.411 (emergency coordinator and info near phone)
• If > 6,000 kg HSM, then also comply with 40 CFR 261.420 (emergency coordinator and written contingency plan)
[40 CFR 261, Subpart M]
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Tracking Shipments
• Generators and receiving facilities must keep records for each shipment that include the:
– Name of the transporter,
– Date of shipment/receipt, and
– Type and quantity of HSM
• Records must be retained for at least three years
[40 CFR 261.4(a)(23)(i)(B) and (C)]
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Verified Recycler Exclusion
Exclusion requires the hazardous secondary material to be recycled by a facility that:
• Has a RCRA Part B permit, or
• Has received a variance per 40 CFR 260.31(d)
[40 CFR 261.4(a)(24)]
The same requirement applies for intermediate facilities that store the material for more than 10 days
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Verified Recycler ExclusionProhibition
This exclusion is not available to spent lead-acid batteries or any secondary material already subject to a specific exclusion at 40 CFR 261.4(a)
[40 CFR 261.4(a)(24)]
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Verified Recycler ExclusionGenerator’s Recordkeeping Requirements
Comply with the following recordkeeping requirements:
• Notification per 40 CFR 260.42
• Legitimate recycling per 40 CFR 260.43
[40 CFR 261.4(a)(24)(iv) and (vii)]
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Verified Recycler ExclusionGenerator’s Management Requirements
• The material must be:
– “Contained” per 40 CFR 260.10
– Marked per the “speculative accumulation” definition at 40 CFR 261.1(c)(8)
• The generator must comply with the emergency preparedness requirements at 40 CFR 261, Subpart M
[40 CFR 261.4(a)(24)(i) and (v)]
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Shipments of Materials Underthe Verified Recycler Exclusion
Generator must maintain shipping records that include:
• Date of shipment
• Type and quantity of the HSM per shipment
• Name of the transporter
• Name and address(es) of each recycler and interim facility
• Confirmation of receipt from each recycler and interim facility
[40 CFR 261.4(a)(24)(v)(C) and (D)]
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Shipments of Materials Underthe Verified Recycler Exclusion
Shipping records must be retained for ≥ three years
[40 CFR 261.4(a)(24)(v)(C) and (D)]
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Verified Recycler ExclusionRecycling and Intermediate Facilities
• Avoid speculative accumulation
• Comply with the emergency preparedness requirements at 40 CFR 261, Subpart M
[40 CFR 261.4(a)(24)]
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Verified Recycler ExclusionRecycling and Intermediate Facilities
• Notify the EPA per 40 CFR 260.42
• Retain records proving legitimate recycling per 40 CFR 260.43
• Keep records of all receipts
• Provide confirmations of receipt to all generators
• Comply with the financial assurance requirements at 40 CFR 261, Subpart H
[40 CFR 261.4(a)(24)]
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Remanufacture Exclusion
Exclusion applies only to 18 specific spent solvents
• Spent solvents must originate from and be remanufactured by four specific manufacturing sectors
• Remanufactured solvents must be used in the manufacturing process at covered manufacturing sectors
[40 CFR 261.4(a)(27)]
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Remanufacture ExclusionCovered Solvents
1. Acetonitrile
2. n-Butyl aclohol
3. Chlorobenzene
4. Chloroform
5. Chloromethane
6. Cyclohexane
7. Dichloromethane
8. NN-dimethylformamide
9. Ethanol
[40 CFR 261.4(a)(27)(i)]
10. Ethylbenzene
11. n-Hexane
12. Methanol
13. Methyl tert-butyl ether
14. Methyl isobutyl ketone
15. Tetrahydrofuran
16. 1, 2, 4-Trimethylbenzene
17. Toluene
18. Xylenes
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Remanufacture ExclusionCovered Solvents
Solvents must be “commercial grade” and used for:
• Reacting,
• Extracting,
• Purifying, or
• Blending chemicals
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Covered Industrial Sectors
The listed spent solvents must originate from:
1. Pharmaceutical manufacturing (NAICS 325412),
2. Basic organic chemical manufacturing (NAICS 325199),
3. Resins manufacturing (NAICS 325211), or
4. Paints and coatings manufacturing (NAICS 325510)
[40 CFR 261.4(a)(27)(ii)]
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Covered Industrial Sectors
Additional industries can petition the EPA to be added to the exclusion
[40 CFR 261.4(a)(27)(ii)]
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Management of Spent Solvents Under Remanufacturing Exclusion
Generators and remanufacturers must:
• Manage solvents in containers or tanks meeting 40 CFR 261, Subpart I or J
• Avoid speculative accumulation
• Comply with air emission standards
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Management of Spent Solvents Under Remanufacturing Exclusion
Generators and remanufacturers must:
• Notify the EPA per 40 CFR 260.42
• Develop remanufacturing plans
• Retain records of shipments and receipts
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Impact on 2008 DSW Rule
Rule issued under RCRA (not HSWA) is effective since July 13, 2015
• For states under Federal oversight, all provisions apply on effective date
• For states that did adopt the 2008 rule, not effective until state adopts changes
• States that did not adopt the 2008 rule will have to decide whether to adopt new exclusions
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Impact on Pre-2008 Exclusions
• Two components of final rules apply to all solid waste recycling exclusions in all states:
– Legitimate recycling at 40 CFR 260.43 and 261.2(g)
– “Speculative accumulation” at 40 CFR 261.1(c)(8)
• All states will need to adopt these changes, at the least
– Effective date of these changes is unclear in the Federal Register
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QUESTIONS?
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