epa’s 2014 definition of solid waste rule – exclusions for …€¦ · 4 © lion technology...

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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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