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by Chris 1. Psihos, ChE, Esg.

Through Environmental Enforcement Actions

h e U S . Environmental Pro- tection Agency’s (EPA) regulations relating to the gen- eration, storage, treatment and -

disposal of used oil and hazardous wastes are especially complex. With penalties for non-compliance potentially amount- ing to $25,000 per day per violation, the EPA’s incentives for maintaining strict compliance are clear.

Despite extraordinary efforts, even the most conscientious manufacturer can become a party to an enforcement action when non-compliance items are discov- ered through an audit performed by the EPA or the regulating state.

This article briefly will discuss the basic regulatory framework often trig- gered by parts washing and associated operations including brazing, plating, and painting. I t also discusses some of the options available for regulated parties against whom an enforcement action is brought for non-compliance.

Facilities with parts cleaning opera- tions should consult with their regulating authorities about specific regulations affecting ope rat ions.

The Regulatory Framework Inherent to all parts cleaning operations is the removal of an undesirable constituent through the use of a cleaning agent. This discussion assumes that oils are removed from machined parts using aqueous-based or petroleum-based cleaning agents in a parts washer. Wastes typically produced include used oils that are periodically or

continuously removed from parts clean- ers, and spent cleaning solution.

Generation, on-site management, and disposal of these wastes can trigger both the used oil and hazardous waste rules. Whether the wastes generated from parts cleaning are subject to hazardous waste or used oil rules can only be ascertained after proper waste characterization. Most states regulate used oil in accordance with the requirements specified in 40 CFR Part 279. Check with your state for specific regulatory requirements. (See Regulatory Resources, page opposite.)

Used Oil Generation Parts cleaning operations that generate used oil are subject to the requirements specified in 40 CFR Part 279, Subpart C. All generators of wastes are required to characterize their wastes by performing a three-teir process: analytical testing, by application knowledge of their waste’s character obtained through review of Material Safety Data Sheets (MSDS), and evaluation how the process can con- tribute to the waste. Cautious generators always perform analytical testing of their wastes to assure proper characterization.

Oils removed from parts cleaners can qualify as used oil or a hazardous waste depending on the process generating the waste and subsequent management methods. Used oils mixed with hazardous wastes generally are regulated as haz- ardous wastes, not as used oils. The defi- nition of used oil is based on three criteria: origin, use, and contamination.

A material must meet all three parts to be,defined as used oil under Part 279.

Ongin: The used oil must be derived from crude oil or synthetic oil (i.e., derived from coal, shale, or polymers). Examples of such oils are motor oil, mineral oil, lami- nating surface agents, and metalworking oils. The origin-based definition does not include animal and vegetable oils.

Use: The oil must have been used as a lubricant, coolant, heat (non-contact) transfer fluid, hydraulic fluid, or for a sim- ilar use. Lubricants include, but are not limited to, used motor oil, metalworking lubricants, transmission fluids, and emul- sions. Heat transfer fluids can be materials such as coolants, heating media, refrigera- tion oils, and electrical insulation oils.

Contamination: The used oil must be contaminated by physical (e.g., high water content) or chemical (e.g., lead, halogens, or other hazardous con- stituents) impurities as a result of use. Petroleum-based solvents and antifreeze are not regulated as used oil.

Used Oil: On-Site Management Assuming your waste qualifies as used oil, it may be managed on-site or disposed of off-site. A generator managing its used oil on-site can be subject to the used oil processor requirements specified in 40 CFR Part 279, Subpart F. Activities that can subject a generator to processing requirements include:

On-site chemical or physical treat- ment of used oil such as blending used oil with virgin petroleum products

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Sparks advises those in the cleaning indus- try. “Work upstream from the cleaning process to eliminate the soils or substitute them with easier-to-clean and less toxic substances. Work with the product design- ers to ‘design out’ the need for a cleaning process altogether. Employ closed-loop (filtration) cleaning processes to minimize environmental discharges and to extend the life of the cleaners. Smart companies are finding that they can be more compet- itive when they integrate environmental issues into their strategic decision-making processes. These companies know that pollution prevention pays and compliance costs.”

According to Dibble, an open mind and a long-range outlook will be the best defense against becoming caught in the maelstrom of restrictions that lurk on the horizon.

“Keep yourself open to new altema- tives,” Dibble recommends. “Just because supercritical C02 is not the solution for your industry today, doesn’t mean that it won’t be a solution in five years. Consider new processes, not just new solvents.”

In an era where corporate responsibil- ity has become an integral component of the public relations picture, businesses ignore such recommendations at their own peril.

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Blending used oils to meet the on- specification requirements specified in 40 CFR Part 279.11 Filtration Simple distillation Chemical or physical sepration Re-refining.

A generator subject to the used oil processing requirements, generally, must: provide notification to the EPA; main- tain the facility and equipment on-site to minimize the risks of fire, explosion, and unplanned releases; provide training; and have a written on-site contingency plan.

Used Oil: Disposal Used oil can either be disposed of on-site via recycling or burned on-site in space heaters vented to atmosphere with a maximum heat input rating of 0.5 MM Btu per hour. Used oil also can be shipped off-site to a used oil processor who will re-refine or blend the oil to make it suitable for re-use. Used oil shipped off site to.be burned for energy recovery must be evaluated to determine whether it qualifies as on-specification or off-specification. On-specification used oil must satisfy the criteria specified in 40 CFR Part 279.11 as shown in Figure 1.

Used oil satisfying the on-specifica- tion criteria is not subject to Part 279.1 1. Used oil that is off-specification can only be burned for energy recovery in one of four types of units qualifying with the requirements specified in 40 CFR Part 279.12.

Any person who either directs a ship- ment of off-specification used oil from

their facility to a used oil bumer, or first claims that used oil that is to be burned for energy recovery meets the used oil fuel specifications set forth in Sec. 279.11, is subject to the Used Oil Marketer Requirements specified in 40 CFR Part 279, Subpart, H and must provide notifi- cation to the EPA and comply with other relevant used oil rule requirements.

Used and Virgin Oil: SPCC Regulations Used oil generators storing oil - whether used or virgin - in on-site storage con- tainers with above-ground capacities greater than 660 gallons singularly or more than 1320 gallons cumulatively, or who have an underground storage capac- ity greater than 42,000 gallons must com- ply with the Spill Prevention and Countermeasure Plan (SPCC) require- ments specified in 40 CFR Part 11 2.

Cleaning Agents: Regulatory Framework Parts cleaning agents, whether aqueous- based or petroleum-based, must be char- acterized to determine whether they qualify as a hazardous waste. Wastes qual- ify as hazardous if they are either ‘charac- teristically hazardous’ or if they are from

a sDecific or non-sDecific source ‘listed’ in 4 iCFR Subpart e.

Characteristically hazardous wastes are

Corrosive (i.e., a pH greater than 2.0 and less than 12.5) Ignitable (i.e., a flashpoint greater than 140” F) Reactive (i.e., unstable, reacts vio- lently/explosive, emits toxic gasses when mixed with water, contains sulfide/cyanide ) or fail the Toxicity Characteristic Leaching Procedure (TCLP) test for any of the constituents specified in 40 CFR Subpart C.

Examples of common ‘listed’ hazardous wastes are those from the ‘F‘ list (40 CFR 261.31a) which includes, in part, various spent solvents used in degreasing and cleaning operations.

Cleaning agents are commonlyhaz- ardous wastes. Aqueous cleaning agents are commonly hazardous due to the pH exceeding the corrosivity threshold; the presence of heavy metals or organics in quantities above the characteristically thresholds; or due to co-mingling with listed hazardous wastes. Petroleum-based cleaning agents are commonly hazardous because they are ignitable; due to the presence of heavy metals or organics in quantities above the characteristically thresholds; or due to co-mingling with listed hazardous wastes.

All spent cleaning agents must be evaluated to determine if they are haz- ardous. If a hazardous waste is generated, the generator must comply with the rele-

either:

General Regulatory Information The Regulatory information Service Center, part of the General Services Administration has established Web sites to assist users who want to find infar- Register. You can su \ scribe to an email service for federal Register updates. motion about lederol, state, and local regulations. http:// olkywods. ov/mfindex.htm h ttp:/Ieg in fo.g o v!

Codified Regulations http://www..gpo.gov/su~docs/oces/aces 140. html The Code of Federal Regubtions (CFR) is a codification of the rules published in the FedemlRegiserby the Execufive departments and agencies of he federal government. It is divided into 50 titles representing broad areas subject to federal regulation; environmental regulations are contained main1 in Title 40. This section is revised

http://www.access.gpo.gov/nar~~r~ndex. html

The EPA offers full text of CFR Title 40 retrievable by chapters, subchapters, and parts in portable document format (pdf). http://www.epa.gov/epahome/cfr4O. htm

The EPA also provides links to references to other Federal Regulations found in CFR Title 40 as well as state government regulations and programs. http://www.epo.gov/do~/epacfr4O/find-aid.info/stote/

Regulations and Proposed Rules EPA notices, meetin s, proposed rules, and regulations as published in the federal

h t t p / / w , epo.gov/fedrgstr/

The Government Printing Office (GPO) maintains the official electronic database that covers Federal Register documents from all Departments and Agencies.

Laws The US. Code is the official retard of all federal laws.The United States Code (US0 database is available from the Government Printing Office (GPO). The site indi- cates that the information is current through January, 1998. http://www.access.gpa.gav/su~docs/aces/aacesOO2.html

The Library of Congress provides access to current legislation uncompiled Public Laws, the Congressional Record, committee information, and information about the le islative process. http:/!!’thomosIor .g ov/

once each calendar year and is issued every Ju T y 1.

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vant hazardous waste requirements.

Hazardous Waste: Regulatory Framework Hazardous wastes commonly generated include parts cleaning solutions, spent solvents, and spent plating baths. All waste generators should check with their regulating authority for specific require- ments, summarized below.

License: The generator must apply for a hazardous waste generator’s license. Different licenses are required depending on the quantity of hazardous wastes gen- erated during a calendar month. The EPA issues three types of hazardous waste generator licenses: very small quantity (less than 220 pounds per month), small quantity (220 to 2200 pounds per month), and large quantity (more than 2200 pounds per month).

Labeling: All hazardous wastes must be stored in approved containers labeled with a description of the waste, appropriate hazardous waste codes, Department of Transportation codes, and the generation dates.

Storage: Depending on the generator size (i.e., very small, small, large quan- tity), the generator may store hazardous wastes on-site from 90 days to 270 days. Hazardous wastes must be stored on-site within adequate secondary containment systems designed to capture any release from the storage containers.

Manifesting: Hazardous wastes gener- ated on-site may only be disposed of using a licensed hazardous waste trans- porter transferring the hazardous waste to a licensed disposal facility. When wastes are shipped off-site, the generator must complete a hazardous waste manifest for all wastes shipped off-site.

Special Requirements for Large Quuntity

Generators: In addition to the above require- ments, large quantity generators must train employees on hazardous waste management activities, prepare a hazardous waste contin- gency plan, and submit biennial hazardous waste reports to the regulating authority documenting hazardous waste activities.

Superfund Amendment and Reauthorization Act Section 311 and 312 of the Superfund Amendment and Reauthorization Act (SARA) also can apply to facilities where parts cleaning occurs if the listed chemical is stored at a quantity greater than the threshold reporting quantity.

Facilities which manufacture or process greater than 25,000 pounds per year, or otherwise use more than 10,000 pounds per year of any chemical reportable under Section 313 of SARA, must fill an annual ‘R’ Report.

Common Non-compliance Pitfalls The above discussion, although cursory, is still quite complex, identifying many pit- falls for the regulated party. Common areas where companies that clean parts on-site are particularly vulnerable to enforcement actions for non-compliance include:

Failure to properly characterize wastes as on-specification used oil, off-specification used oil, or haz- ardous wastes. Failing to provide proper notice to the EPA of used oil generator, mar- keter, or processor status. Failing to comply with used oil gen- erator, marketer, and processor requirements. Improper disposal of off-specifica- tion used oil. Failure to apply for a hazardous waste license.

Maintaining the improper hazardous

Improper hazardous waste manifesting. Exceeding the hazardous waste stor- age time limits without obtaining a storage facility license. Improper treating of hazardous wastes on-site. Failure to comply with SPCC requirements. Failure to comply with SARA requirements.

waste license status.

Navigating Through an Enforcement Action Failing to comply with environmental regulations can have severe conse- quences. Proactive compliance has obvi- ous benefits including protection of the environment and assurance that your company can focus on operations without the fear of ramifications and severe penal- ties associated with non-compliance.

In addition to penalties for non-compli- ance, parties to an enforcement action often pay extraordinary attorney fees resulting from the significant quantity of time required to navigate through enforce- ment actions only to find that the penalties assessed are rarely reduced in any signifi- cant amount. Regardless of the penalties assessed, a party subject to an enforcement action must still incur all costs associated with bringing the facility back into compli- ance. Hence, it is always a better use of cap- ital to proactively comply with regulations.

Enforcement Procedures and Penalty Assessment When the EPA assesses penalties for haz- ardous and used oil management activity non-compliance, i t follows its RCRA Civil Penalty Policy guidance document. The EPA uses similar enforcement poli-

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In accordance with the RCRA Civil Penalty Policy, the EPA assesses penal- ties for each violation as follows:

1. Levying a gravity-based penalty for each violation from a gravity-based penalty assessment matrix

' 2. Adding a multi-day component 3. Adjusting up or down for case-spe-

cific circumstances, and 4. Adding to this the benefit gained by

the regulated entity through non-com- pliance.

Within each of the four categories, the EPA evaluates several factors for proper penalty assessment.

Legal Defenses When defending clients for non-compli- ance, attorneys provide the EPA with facts favorable to the client that tend to dis- count or negate the claims brought by the regulating authority. Attorneys will also tend to show the EPA that where facts are in dispute, there is an inherent risk of liti- gation, which will result in substantial costs to both the client and the EPA.

Where there is n o defense to a par- ticular claim, a n attorney has little recourse than to attempt to negotiate a lower penalty. As attorney fees are directly proportional to the vigorous- ness of the defense, they often can exceed the amount of penalty assessed. Hence, a good attorney will advise their client of the merit of the EPA's claims and assist them in selecting the proper defense strategy (total cost including civil penalties plus attorney's fees) designed to achieve the most cost effective result.

Civil Penalty Alternative: Supplemental Environmental Projects In settlements of environmental enforce- ment actions, the EPA requires alleged vio- lators to achieve and maintain compliance with regulations in addition to paying a civil penalty To further the EPA's goals to protect and enhance public health and the environ- ment, the EPA may permit Supplemental Environmental Projects (SEPS).

In certain instances, the EPA will permit an alleged violator to propose an environ- mentally beneficial SEP that the alleged violator is not otherwise legally required to perform. The proposed SEP must fall within the categories approved by the EPA, which include public health, pollution pre- vention, pollution reduction, environmen-

tal restoration and protection, assessment and audits, environmental compliance pro- motions, emergency planning and pre- paredness, or other approved projects.

The costs incurred by the alleged vio- lator are used to offset the penalty assessed by the EPA and, like civil penal- ties assessed, are not tax deductible.

The EPA determines the allowable amount for the SEP using a computer model called PROJECT. Once a SEP is agreed upon, the SEP will be integrated into the final consent order issued by the EPA pursuant to the enforcement action. As part of the SEP, the alleged violator must implement the SEP in accordance with the agreed upon timeline, provide notice to the EPA of completion, provide the EPA with documentation of costs, and provide the EPA with a report sum- marizing the benefits of the SEP after implementation.

Minimize Risk, Consequence Proactive environmental regulatory compliance is absolutely necessary in minimizing infractions that lead to enforcement by federal and state agen-

ties. However, proactive compliance can only address known issues. With regula- tory agencies frequently modifying and adding to environmental rules, it is chal- lenging for regulated parties to maintain a fully environmentally compliant status.

Environmental attorneys and regula- tory compliance consultants can assist companies in keeping abreast of environ- mental regulations. These advisors can conduct comprehensive environmental audits which will identify non-compli- ance issues proactively to minimize risks of enforcement and civil penalty.

In the unfortunate event that your com- pany is party to an enforcement action, the EPA's SEP policy provides a reasonable alternative which, if carefully selected, can yield extraordinary benefits.

About the Author Chris Psihos (chris@psihos.com) is a chemical engineer and attorney who prowid.es regulatwy consulting services to industriul clients through Psihos B Associates, Inc. (Minneapolis, MhJ) . With both attorneys and engmers on st~ff, Psihos B Associates, lnc. (www.psihos.com) assists its clients with regulatory compliance uctiuities.

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What is the best grade of water to use when cl wrong decision can prove quite costly, from a standpoint and due to substandard results and equipment /

(Ni2+33+), zinc (Zn2+), lead (Pb2+>4+),

All of these contaminants have conductive effects and

W

damage. Some cleaning operations use tap water; use ultrapure grades. How do you determine w appropriate for your application?

Water quality is a measure of the level of any substance (other than pure H20) sample. The potential severity of a contami

but dissolved silica will.

determined by a solution' current. This potential chemical species prese

tion and valence. Water hardness.

a1 to carry an electrical dent on the dissolved solution (pure water is

her method of analyzing water

measure of the calcium and magnesium content of water and is most often expressed in terms of parts per million (ppm) of calcium carbonate.

Instrt"ntation. There are a number of instrumental methods for measuring water quality. These can be sim- ple, convenient, and informative especially if the instru- mentation is available on-site. If, however, samples must be sent to an independent analytical laboratory, the analyses can become quite costly. Many instrumental techniques, such as atomic absorption (AA) or induc- tively coupled plasma (ICP), can return levels of anions, cations, and elements as low as parts per billion. Measure only what is necessary to keep the process cost-efficient.

Problem Contaminants Ionic contaminants. The most likely culprits in degrading the purity of water are ionic contaminants. Cationic con- taminants are primarily metals such as magnesium (Mgz'), calcium (Ca2+), iron (Fe2+,3+), and, for some applications, sodium (Na') and potassium (K+). Other ions that can be common at trace levels in tap water (and at higher levels in wastewater) include copper (Cul+J+) , manganese (Mn2+J+,4+,7+), aluminum (Al3+), tin

can have dangerous consequences if left as residues on substrates. All of the metals except sodium and potassium will form insoluble precipitates and solids when they con- tact anions like carbonates, oxides, borates, and silicates.

These insoluble salts can cause a number of problems. They have an affinity for many surfaces and contribute to he formation of "water spots" upon drying. Also, these recipitates tend to clog pumps, membranes, and nozzles. hey contribute heavily to aesthetic equipment scale that

\ p n y of the anions that form these insoluble species are' introduced through the use of builders, corrosion inhibitors, and some surfactants in aqueous cleaning agents. When employing such chemistries, it is para- mount that good quality water be used. Aside from the external effects mentioned above, hardness ions can cause cleaning agents to lose their cleaning power. By binding with certain active materials, the ions often can disable some formulas and in some cases lead to the creation of foam builders and stabilizers.

Anionic contaminants do not promise the same dis- abling effects as cationic contaminants. Some anions, like chlorides (Cl.), have the potential to cause corro- sion. However, most scales and precipitates that form due to cationic contamination drag an anionic half along with them. By themselves, most cations and anions are free-rinsing; the trouble occurs when they meet each other and combine to form insoluble and tenacious compounds.

Silica. Otherwise known as silicon dioxide (SOz), silica occurs naturally as sand, quartz, and other related materials. In water, it occurs mainly as a dispersed, insol- uble colloid or particle. The main trouble with silica is that it has a strong affinity for surfaces and produces a very tenacious scale. Silica also can form a problematic haze on glass or polished surfaces. Unless an extremely well-formulated surfactant is employed, silica can only be removed by either an acid (which converts it into soluble silicic acid) or an alkaline material (which converts it into a soluble silicate).

Other Contaminants. Other contaminants that can impact the purity of incoming water include miscella- neous dissolved and undissolved solids, like dust or dirt, which can lead to general particulate contamination. Bacteria can cause odors if exposed to a food source and

I ust be removed periodically. -

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