Environmental Health and Safety Committee 4-30 Bret Bruhn, Merix Corporation February 2007.

Environmental Health and Safety Committee

4-30

Bret Bruhn, Merix Corporation

February 2007

Legislative & Regulatory Legislative & Regulatory ReviewReview

• TRI Program Issues

• RCRA Proposed Rules

• Merix F006 Delisting

TRI ProgramTRI Program

• The TRI Program campaign to re-engineer and modernize itself continues, but may have hit a wall.

• This has been best evidenced by “Stakeholder Dialogues” Proposed burden reduction rules Form A clarification Proposed streamlining of reporting forms

TRI ProgramTRI Program• (2) rounds of “Stakeholder Dialogues” have

been completed Round 1, Oct-Dec., 17, 2002 Round 2, Nov. ’03 – Feb. 4, 2004 Round 3, TBD

• The “Dialogues” resulted in a proposed “Burden Reduction Rule”

[EPA-HQ-TRI-2005-0073]

• The comment period closed on Jan. 13, 2006 and the final rule was approved Dec 18

TRI ProgramTRI Program• Highlights of the rule:

Allows use of Form A for reporting certain PBTs (including lead & lead compounds)

Expands use of Form A for non-PBT chemicals provided < 5,000 lbs are managed.

• Considering reducing the frequency of reporting in future burden reduction proposals

• Proposing eliminating requirements to report location information and redundant facility identifiers.

TRI ProgramTRI Program

• Clarified that filing a Form A in lieu of a Form R would be treated as a “data error,” not a “failure to file”

• EPA has indicated their intent to automate Section 8 of Form R

• EPA is pressing for electronic filing

Congressional/Public Opposition

• Changes perceived as a rollback• Opposition is top priority for OMB Watch • Solis – Pallone appropriations language

amendment approved in the House of Representatives by a large majority, but no Appropriations bill was finalized

• Senate EPW hearing on TRI rollbacks Feb 6, 2007

• Solis now holds House Subcommitee Chairmanship; plans to introduce bill

RCRA ProgramRCRA Program

• F006 Exemption proposal withdrawn on May 10, 2006

with no notice IPC endeavoring to uncover why the rule was killed

and by whom

• DSW Proposed changes to the Definition of Solid Waste

(DSW) EPA planed to repropose a broader rule by Dec

2006 Action delayed pending completion of OMB review

Regulatory BackgroundRegulatory Background• The F006 listing for “electroplating” sludge was part of the

original 1980 RCRA standard

• While the F006 definition appears limited, a review of the background guidance reveals that it applies not only “electroplating sludge,” but also to etching, chemical milling, and certain associated cleaning processes

• Some facilities have attempted to apply the 40CFR 261.2(e) exemption from the DSW for materials that are recycled to their F006 sludge. The exemption applied to:

40 CFR 261.2(1)(i) “materials used or reused in an industrial process, provided the materials are not being reclaimed, or”

40 CFR 261.2(1)(ii) “materials used as substitutes for commercially available products: or”

• Unfortunately, regulatory agencies have consistently held that smelter feed stocks are not “products,” and that the metals content in these materials is being reclaimed.

• Consequently, 40CFR 261, the DSW, has been a barrier to reclassification.

Regulatory Relief OpportunitiesRegulatory Relief Opportunities

• In January 2003 we were excited to learn that EPA was considering issuing an exemption for select F006 sludges.

• We have reviewed Agency proposals, organized meetings with Agency officials, and forwarded comments to support inclusion of our industry’s materials in an effective restructuring of F006 rules.

Regulatory OptionsRegulatory Options• Historically, (2) options have existed to secure

regulatory relief for F006 classified wastes: Petition to exclude (de-list) [40 CFR 260.22] Apply for a variance from classification as a solid waste

[40 CFR 260.30(c) & 260.31(c)]

• De-listing Facility Specific Must show that the basis for listing no longer applies Must demonstrate that the waste does not display hazardous

waste “characteristics”

• Variance Obtained from EPA or an Authorized State Program Seemingly easy, but quite difficult in practice Many states refuse to allow the use of an intermediate

processor or broker for management Many states establish burdensome and unnecessary

conditions

Justification for Regulatory Relief

• The basis for inclusion of PWB wastewater treatment sludge within the F006 listing no longer applies

[See 40CFR 261 Appendix VII] Our manufacturing processes don’t involve

cadmium plating Chromic acid etch-back processes have

been eliminated or replaced (no hexavalent chrome)

Nickel use is extremely limited Complexed cyanide use is extremely

limited and is typically segregated from general wastewater streams

Regulatory Relief Justification• The industry’s F006 materials pose no

environmental hazards when appropriately land-filled or reclaimed A June 2002 EPA OSW evaluation of delisting (530-R-02-

014) cites 51 successful delisting petitions for F006 sludge between 1980 and 1999 http://www.epa.gov/epaoswer/hazwaste/id/delist/report.pdf

This represents 37.5% of all delistings. The largest single waste category amounting for an estimated 229,500 tons.

We’re aware of at least 6 additional recent examples of successful petitions for delisting from EPA and/or state issued variances

This indicates a clear and growing body of evidence, supported by extensive analytical data, demonstrating that large volumes of F006 classified materials are non-hazardous

RCRA Program / F006RCRA Program / F00640 CFR 268.40 Treatment Standards for F006 are:

Cadmium 7440-43-9 0.19 mg/l TCLP

Chromium 7440-47-3 0.86 mg/l TCLP

Cyanide (Total) 57-12-5 590 mg/kg

Cyanide (Amenable) 57-12-5 30 mg/kg

Lead 7439-92-1 0.37 mg/l TCLP

Nickel 7440-02-0 5.0 mg/l TCLP

Silver 7440-22-4 0.30 mg/l TCLP

RCRA Program / DSWRCRA Program / DSW

• EPA released proposed rule changes to the definition of solid waste (DSW) on October 28, 2003

• 68 Fed Register 61557

• For information access www.epa.gov/fedrgstr www.epa.gov/edocket/ www.regulations.gov


• Background Precipitated by EPA vs. ABR court decision Ruled that EPA had exceeded its authority in

attempting to classify materials as hazardous wastes

• IPC Activities Analyzed the proposed rule Held discussions with Paul Borst EPA OSWER

Economist Drafted and filed extensive comments


• Issues/Comments Proposed rule is too narrow and could limit

opportunities based on definitions of continuous process same generating industry (NAICS code)

EPA overestimates the benefits of the proposed rule

Would undercut recycling infrastructure Asked for comments on a “Broader Rule”

based on four-point legitimacy criteria


• Legitimacy Criteria Manage materials as a valuable commodity or

analogous raw material Provides a useful contribution to the process or

product Provides reasonable economic incentives TAR (toxics-along-for-the-ride)

“bright line” approach (i.e. numeric limits) “risk-based” approach meet product or feedstock specifications


• Legitimacy Criteria Manage as a valuable commodity or analogous raw

material Provides a useful contribution to the process or product Provides reasonable economic incentives TAR (toxics-along-for-the-ride)

“bright line” approach (i.e. numeric limits) “risk-based” approach meet product or feedstock specifications

• Storage• One Time notification• Recordkeeping, reporting, documentation, &

manifesting questions


• Other potential issues Storage One Time notification Recordkeeping Reporting Documentation / manifesting

• Status Proposal may move forward in 2007 Entrenched opposition within the Agency along

with concerns from outside interest groups could impede progress


• Current Timelines

• Future Actions

Pursuing the Delisting OptionPursuing the Delisting Option

• How do you start? With over 57 successful delistings already approved,

plenty of good templates exist to choose from Search the Federal Register, pick one or two that you

like, and contact the Agency for copies of the filings There may be small charges, but often the number of

pages is considered de minimis You can probably limit your search to only the most

relevant sections

• I recommend Tokusen and Bekaert

• The EPA RCRA Delisting Program Guidance Manual for the Petitioner, dated March 23, 2000 can also be helpful

Delisting Tips• Typically Petitions are broken down into 2 -3

parts The Petition. A fairly standard legal description of

what is being requested and the rationale for submission

A Sample and Analysis Plan. This includes a detailed description of the facility and plant processes. It describes waste treatment and generation, waste characteristic, identifies constituents of concern, lists what will be analyzed and how often, and how sampling will be performed

The Quality Assurance Plan. This describes lab and analytical methods and procedures, how data will be analyzed and reported, etc.

Delisting Tips (cont.)• Of the three sections the Sample and Analysis Plan is

the most critical.• Chapter 9 of the RCRA Waste Sampling Draft

Technical Guidance SW-846 (EPA 530-R-99-015) provides 318 pages of dense, un-illuminating, reading. It describes accepted sampling and statistical methods.

• The method must be matched to the material characteristics and mode of generation.

• For instance: is it a batch or continuous process, how much variation exists, is it deposited into totes, bags, hoppers, or roll-offs

• There are several methods that might be acceptable, but you may want to select one that’s already been approved.

Delisting Tips (cont.)• Once you have your documentation

prepared, what do you do with it?

• It depends upon your location.

• In some locals you’ll have to file with the State, in others you may be able to file directly with the EPA Regional Office.

• While there are pros and cons to each option, you should be able to submit a copy to the Region for review in advance.

• They will screen it for completeness so that it won’t be rejected on technical grounds.

Delisting Tips (cont.)• Should I take advantage of the opportunity

for review?• Great question. How much time do you have and what

are the consequences of an initial rejection?

• If you think you can get a quick response, why not? I recommend asking for a response date in writing.

• On the other hand, if there’s no filing fee, starting the formal process typically starts an express timetable. Rejection, modification, and refilling, may take less time than the review.

• If you’re prepared to commit to additional sampling and analysis, you should be able to greatly reduce the risk of rejection.

Delisting Tips (cont.)

• What will it cost?• The two major components are staff time and

lab support.

• I’d estimate 1 month of staff time for preparation.

• 20-40 hours for actual sampling, preparation, and paperwork.

• Lab costs vary, but $5,000 – 6,000 would probably be reasonable.

Keep in Touch with EHSKeep in Touch with EHS

•Visit the Website at www.ipc.org under • “Legislative and Regulatory Affairs”•Subscribe to the EHS Update•Join Compliance Net email forum

Contact:

Fern Abrams, IPC Director of Environmental Policy (202) 962-0460, [email protected]

Environmental Health and Safety Committee 4-30 Bret Bruhn, Merix Corporation February 2007.

Documents

Transcript of Environmental Health and Safety Committee 4-30 Bret Bruhn, Merix Corporation February 2007.