Enforcement Trends at EPA: Affiliated Industries. Ethan R. Ware McNair Law Firm, P.A. (803)

Transcription

1 Enforcement Trends at EPA: Metal Finishing and Affiliated Industries Ethan R. Ware McNair Law Firm, P.A. (803) The information contained herein is not legal advice. This information does not create an attorney-client relationship between you and McNair Law Firm, P.A. Please contact an attorney if you have a legal issue that you wish to discuss.

2 Overview Hazardous Waste: New Areas of Focus Hazardous Waste: Same Old Things Enforcement Trends at EPA Name of Presentation - Date McNair Law Firm P.A. 1

3 Hazardous Waste: EPA s Always Probing New Areas Hazardous Waste October 1, 2012 McNair Law Firm P.A. 2

4 Hazardous Waste: Wet Floors Wet Floor Drag out Spills Leaks Accumulate on floor of plating room

5 Hazardous Waste: Wet Floors Two Questions: 1. Solid Waste? 2. If so, Hazardous Waste? 40 CFR 261.3(a)

6 Hazardous Waste: Wet Floors Solid Waste means discarded material by Abandoned Recycled 40 CFR 261.2(a)

7 Hazardous Waste: Wet Floors Abandoned means Disposed Accumulated, stored or treated in lieu of being abandoned. 40 CFR 261.2(b)

8 Hazardous Waste: Wet Floors Question: Are dragout, spills, and leaks on the plating room floor discarded? Answer: Maybe Disposed through cracks Accumulated in lieu of disposal

9 Hazardous Waste: Wet Floors Hazardous Waste 1. Listed F006 F Characteristics Ignitability Corrosivity Reactivity Toxicity

10 Hazardous Waste: Wet Floors F006 Hazardous Waste Wastewater treatment sludges from electroplating operations Question: Can a plating room floor be used to accumulate F006 sludges in lieu of disposal? 40 CFR

11 Hazardous Waste: Wet Floors F007 Hazardous Waste Spent Cyanide baths from elctro-plating Question: Can a plating room floor be used to accumulate F007 in lieu of disposal?

12 Hazardous Waste: Wet Floors Characteristics of Hazardous Waste Corrosivity: 2.0 ph 12.5 ph Toxicity: Cd 1.0 (mg/l) Cr 5.0 Ag CFR

13 Hazardous Waste: Wet Floors Hazardous Waste Storage Options Containers Tanks Drip pads Containment buildings Miscellaneous units Hazardous Waste October 1, 2012 McNair Law Firm P.A. 12

14 Hazardous Waste: Wet Floors Hazardous Waste Containers Containers are portable storage units Wet Floors do not meet the definition of a container Hazardous Waste October 1, 2012 McNair Law Firm P.A. 13

15 Hazardous Waste: Wet Floors Hazardous Waste Tanks A stationary device, designed to contain an accumulation of hazardous waste Constructed of non earthen materials which provide structural support NOTE: Wet Floors could be considered a tank or part of a tank system (Ancillary Equipment) Hazardous Waste October 1, 2012 McNair Law Firm P.A. 14

16 Hazardous Waste: Wet Floors Wastewater Treatment Unit Exemption: Tank Treats or stores influent wastewater Hazardous Waste Subject to regulation under the Clean Water Act 40 CFR Name of Presentation - Date McNair Law Firm P.A. 15

17 Hazardous Waste: Wet Floors Containment Building A hazardous waste unit that is used to store or treat hazardous waste under the provisions of RCRA Wet Floors do not meet this definition Hazardous Waste October 1, 2012 McNair Law Firm P.A. 16

18 Hazardous Waste: Wet Floors Drip Pads An engineered structure consisting of a curbed, free-draining base for the collection of drippage from treated wood Wet Floors would not fall under this storage type Hazardous Waste October 1, 2012 McNair Law Firm P.A. 17

19 Hazardous Waste: Wet Floors Miscellaneous Unit Unit that is not a container, tank, or any other defined unit Could meet the conditions of a Wet Floor Hazardous Waste October 1, 2012 McNair Law Firm P.A. 18

20 Hazardous Waste: Wet Floors Dragout on the Floor If the spilled hazardous material is left on the floor for an unreasonable period of time, the material may be considered discarded. Evaporation concentrates = Toxicity Corrosive = ph F006 or F007 Hazardous Waste October 1, 2012 McNair Law Firm P.A. 19

21 Hazardous Waste: Wet Floors Tank Rule: Must remove accumulated leaks or spills Within 24 hours, or Earliest practicable time Question: Can the industry meet a similar standard for spills, leaks, or dragout on plating room floors? 40 CFR (c)(3) Name of Presentation - Date McNair Law Firm P.A. 20

22 Hazardous Waste: Wet Floors What Is Earliest Practicable Time? For Hazardous Waste Tanks hours or in a timely manner Wet Floors -- unknown Hazardous Waste October 1, 2012 McNair Law Firm P.A. 21

23 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 22

24 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 23

25 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 24

26 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 25

27 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 26

28 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 27

29 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 28

30 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 29

31 Hazardous Waste: Wet Floors Hazardous Waste October 1, 2012 McNair Law Firm P.A. 30

32 Hazardous Waste: Wet Floors Option #1 (Dry Floor) Provide a plating line design where all dragout flows back into the tanks Can be done using tank connectors, splash guards and other barriers to prevent the material from hitting the floor Floor is kept dry and there are no waste accumulation issues Saves on loss of product, treatment and disposal costs Hazardous Waste October 1, 2012 McNair Law Firm P.A. 31

33 Hazardous Waste: Wet Floors Option #2 (Waste Not Stored) The spilled material is cleaned up in Earliest Practicable Time. The material would not be considered to be discarded Hazardous waste requirements would not apply to the material No tank requirements apply to the floor Hazardous Waste October 1, 2012 McNair Law Firm P.A. 32

34 Hazardous Waste: Wet Floors Option #3 (Waste Stored) The spilled material is not cleaned Earliest Practicable Time, but is cleaned up within 90 days of the first drop to hit the floor: May be Manufacturing Processing Unit and exempt May be a hazardous waste tank or ancillary equipment Effect: All hazardous waste tank requirements may apply, including tank assessment and certification by an independent professional engineer Hazardous Waste October 1, 2012 McNair Law Firm P.A. 33

35 Hazardous Waste: Wet Floors Option #4 (Waste Stored >90) The spilled material is not managed within 90 days and the floor is considered to be a tank Hazardous Waste Storage Facility requiring State or Federal permits NOTE: Exempt from regulation if Part of a wastewater treatment facility. Hazardous Waste October 1, 2012 McNair Law Firm P.A. 34

36 Hazardous Waste: Sometimes EPA s Looking at Same Old Things Hazardous Waste October 1, 2012 McNair Law Firm P.A. 35

37 Hazardous Waste: Container Management GENERATION AREAS 1. Maintained to prevent sudden or non-sudden releases of hazardous wastes, or hazardous waste constituents to: Air Surface Water Soil. Hazardous Waste October 1, 2012 McNair Law Firm P.A. 36

38 McNair Law Firm, P.A.

39 SATELLITE ACCUMULATION 1) Hazardous waste must be in containers McNair Law Firm, P.A.

40 McNair Law Firm, P.A.

41 SATELLITE ACCUMULATION 2) Less than 55-gallons (total hazardous waste). How do you know? McNair Law Firm, P.A.

42 McNair Law Firm, P.A.

43 - McNair Law Firm, P.A.

44 SATELLITE ACCUMULATION 3) Located at or near the point of generation and under the control of the operator of the process. Provides relief from weekly inspections. McNair Law Firm, P.A.

45 McNair Law Firm, P.A.

46 SATELLITE ACCUMULATION REQUIREMENTS (continued) 4) Labeled with the words Hazardous Waste or other words to identify contents. McNair Law Firm, P.A.

47 McNair Law Firm, P.A.

48 McNair Law Firm, P.A.

49 SATELLITE ACCUMULATION 5) Closed Definition: the lid is secured so that if the drum or container is tipped over, the waste will not leak out. Is this a subjective standard? Hazardous Waste October 1, 2012 McNair Law Firm, P.A.

50 McNair Law Firm, P.A.

51 McNair Law Firm, P.A.

52 McNair Law Firm, P.A.

53 McNair Law Firm, P.A.

54 McNair Law Firm, P.A.

55 TRICKY ISSUES 1. Container of containers - - Empty? Closed? (e.g., aerosol cans) 2. Dried solvent wastes? (e.g., rags, paint pieces) 3. Time between adding and removing. Hazardous Waste October 1, 2012 McNair Law Firm, P.A.

56 Requirements for less than 90-Day storage areas - 40 CFR (a) 1. The waste is placed in: Containers Subpart I of 265 Tanks Subpart J of 265 Drip pads Subpart W of 265 Description of waste removal procedure Time and date of removal every 90 days Containment buildings Subpart DD of 265 Hazardous Waste October 1, 2012 McNair Law Firm, P.A.

57 Containers must be in good condition and managed to minimize releases. McNair Law Firm, P.A.

58 McNair Law Firm, P.A.

59 Labels and dates must be visible for inspection. McNair Law Firm, P.A.

60 All containers must be dated. Pop Quiz: When does a container in a storage area have to be dated? McNair Law Firm, P.A.

61 Pop Quiz: Is this label acceptable? McNair Law Firm, P.A.

62 No Product Labels McNair Law Firm, P.A.

63 Containers are open and in poor condition McNair Law Firm, P.A.

64 Aisle space must be maintained. McNair Law Firm, P.A.

65 Aisle space must be maintained to allow for the unobstructed movement of personnel and spill control equipment. McNair Law Firm, P.A.

66 Containers <50 feet from property line McNair Law Firm, P.A.

67 Not So Good Examples McNair Law Firm, P.A.

68 McNair Law Firm, P.A.

69 McNair Law Firm, P.A.

70 69

71 McNair Law Firm, P.A.

72 McNair Law Firm, P.A.

73 Enforcement Trends: Does it Matter? Name of Presentation - Date McNair Law Firm P.A. 72

74 Enforcement Trends: 2011 McNair Law Firm, P.A.

75 Hazardous Waste October 1, 2012 McNair Law Firm P.A. 74

76 Hazardous Waste October 1, 2012 McNair Law Firm P.A. 75

77 Hazardous Waste October 1, 2012 McNair Law Firm P.A. 76

78 Hazardous Waste October 1, 2012 McNair Law Firm P.A. 77

79 Hazardous Waste October 1, 2012 McNair Law Firm P.A. 78

80 Conclusion Hazardous Waste: Regulations are ever changing but pervasive Enforcement: Increasing Liability Name of Presentation - Date McNair Law Firm P.A. 79

81 Ethan R. Ware Shareholder 1221 Main Street, Suite 1800 Columbia, SC (803) Experience Hazardous Waste October 1, 2012 Ethan Ware is the Managing Shareholder of the Administrative/Regulatory Unit of McNair Law Firm. His practice is limited to representation of industry and business in environmental and health and safety legal matters. He has appeared on behalf of business in negotiations relating to environmental permits, in defense of environmental and OSHA enforcement actions by state and federal agencies, in defense of toxic tort lawsuits, and on behalf of industry in criminal and civil environmental actions. Ethan's practice also involves review of environmental issues in transactions and environmental and health and safety training and auditing programs. Ethan has an active Southeastern practice and has authored many articles on timely environmental issues for the South Carolina publication, Business Journal, and the South Carolina Law Journal. He is also past President of the South Carolina Bar, Natural Resource Section. He works with Western Carolina Industries, South Carolina Chamber of Commerce, South Carolina Manufacturers Association, the Manufacturers and Chemical Industry Council (Raleigh), South Carolina Mining Association, and other business related trade associations, providing environmental and OSHA council and guidance. Ethan is best known for his accomplishments in air, hazardous waste, and wetlands law. McNair Law Firm P.A. 80

82 Office Locations Anderson, SC 132 East Benson Street Anderson, SC (864) Bluffton, SC The Plaza at Belfair 4 Clarks Summitt Drive Bluffton, SC (843) Charleston, SC 100 Calhoun Street Charleston, SC (843) Charlotte, NC Two Wells Fargo Center 301 South Tryon Street Charlotte, NC (704) Columbia, SC 1221 Main Street Columbia, SC (803) Pawleys Island, SC Ocean Highway Pawleys Island, SC (843) Greenville, SC Poinsett Plaza 104 South Main Street Greenville, SC (864) Hilton Head Island, SC Shelter Cove Executive Park 23-B Shelter Cove Lane Hilton Head Island, SC (843) Lexington, KY 1010 Monarch Street Lexington, KY (859) Myrtle Beach, SC Founders Centre 2411 Oak Street Myrtle Beach, SC (843) McNair Law Firm P.A. 81

83 DISCLAIMER: This presentation and related materials were created by McNair Law Firm, P.A. for informational purposes only. Prior results do not guarantee a similar outcome in other cases. The presenters of this material are not providing legal advice nor should the information contained within this presentation and related materials be misinterpreted as legal advice. The audience should not rely on any comments made during this presentation as answering a specific individual legal need or question. This presentation and all related materials are being distributed by or on behalf of McNair Law Firm, P.A., or a lawyer within the law firm. The distributor does not intend to waive any privilege, including the attorney-client privilege, that may attach to this distribution. Recipients of this material are not authorized to copy, forward or disseminate this material without the consent of McNair Law Firm, P.A. CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any US Federal Tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (I) avoiding penalties under the internal revenue code or (II) promoting, marketing or recommending to another party any transaction or matter addressed herein. This advice may not be forwarded (other than within the taxpayer to which it has been sent) without our express written consent. To read more about this disclosure, please see Circular_230.pdf