Veolia ES Technical Solutions

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1 Hazardous Waste Recycling/Reuse Regulations AHMP 2011 National Conference August, 2011 Kevin McGrath Sr. Manager of Environmental Affairs Veolia ES Technical Solutions NORTH AMERICA TECHNICAL SOLUTIONS Veolia ES Technical Solutions Hazardous Waste Management Services Hazardous Waste Incinerators Solvent Recycling Facilities Fuel Blending Hazardous Waste Storage Electronics Recycling Field Services In-Plant Services Transportation Why the Interest in Recycling/Reuse of Hazardous Waste? Customer s Request/Demand this Option Reuse of Valuable Resources Reduce Manufacture and Use of Virgin Product Reduce the Land Disposal of Useful Materials Achieve Sustainable Development Goals It s the Right Thing to Do 1

2 Agenda Overview of Current Regulations Proposed Definition of Solid Waste Amendments Legitimacy Criteria Examples Discussion Why Are the Hazardous Waste Recycling Regulations so Confusing Must Reference Multiple Regulations, FR Notices, and Interpretive Agency Memos Long History (Sylvia Lawrence Memo 4/26/89) RCRA Statute not Explicit on the Extent of the Agency s Authority Must Know What the Waste is and How it will be Reclaimed/Recycled/Reused Some Important Definitions and Concepts Solid Waste Any discarded material that is not excluded from regulation. Discarded Materials include materials that are abandoned or recycled. Recycling Used, Reused or Reclaimed. Reclaimed Processed to recover a usable product or regenerated. Hazardous Wastes are a Subset of Solid Wastes It is those solid wastes meeting specific listing or exhibiting a defined hazardous characteristic. 2

3 Some Important Definitions and Concepts (continued) Some recycled materials are not solid wastes. Others may be a solid waste but are not a hazardous waste. And other recycled materials may be a solid and hazardous waste, but are subject to less stringent management requirements. Hierarchy of Recycling Regulations This is the general hierarchy for determining how the RCRA rules apply to a material being recycled. Not a Solid Waste by Definition (40 CFR 261.2) Excluded from the Definition of Solid Waste (40 CFR 261.4(a)) Excluded from the Definition of Hazardous Waste (40 CFR 261.4(b)) Relief for Recyclable Materials (Hazardous Wastes) (40 CFR 261.6) Universal Waste (40 CFR and 40 CFR 273) Hazardous Waste Recycled but Subject to Full RCRA Regulation Materials That are Solid Wastes When Recycled or Reused (40 CFR 261.2(c)) Used in a Manner Constituting Disposal Burned for Energy Recovery Reclaimed Prior to Recycling or Reuse Accumulated Speculatively Inherently Waste-Like Materials 3

4 Solid Waste Exemptions for Secondary Materials (40 CFR 261.2(c)) Some used or residual waste-like materials (i.e., secondary materials) are NOT solid wastes when reclaimed, including: Sludge exhibiting a characteristic of hazardous waste By-products exhibiting a characteristic of hazardous waste Commercial chemical products (P or U listed hazardous wastes) By-product is defined as a material that is not one of the primary products in a production process, and is not separately produced. Commercial chemical products that are themselves fuels are not solid wastes when burned for energy recovery. 40 CFR 261.2(c) Table 1 Materials that are NOT Solid Wastes When Recycled 40 CFR 261.2(e) Used or reused as ingredients in an industrial process to make a product, provided the materials are not reclaimed; Used or reused as effective substitutes for commercial products; Returned to the original process as feedstock without first being reclaimed; However, materials that are Burned for energy recovery, Speculatively accumulated, or Used in a manner constituting disposal are solid wastes 4

5 Materials Excluded by Regulation Wastes excluded from the definition of solid waste in 40 CFR 261.4(a) including, but not limited to: Excluded Scrap Metal Shredded Circuit Boards Secondary Materials in a Closed Loop System Cathode Ray Tubes (CRTs) Hazardous Secondary Materials Transferred for Reclamation Solid wastes which are NOT hazardous wastes, 40 CFR 261.4(b) including, but not limited to: Household Hazardous Wastes Cement Kiln Dust Used Chlorofluorocarbon Refrigerants from Totally Enclosed Equipment that is Reclaimed Requirements for Recyclable Materials 40 CFR Hazardous wastes that are recycled are subject to generator, transporter, and storage requirements (40 CFR 261.6(a)(1), except for: Recyclable Materials subject to 40 CFR 266 Standards Recyclable Materials Used in a Manner Constituting Disposal (Subpart C) Hazardous Waste Burned for Energy Recovery in BIFs (Subpart H) Precious Metals Reclamation (Subpart F) Spent Lead-Acid Batteries (Subpart G) Recyclable Materials NOT subject to Regulation Industrial Ethyl Alcohol Scrap Metal Used Oil Materials that are Hazardous Wastes even when Recycled Universal Wastes (40 CFR 273) Batteries Lamps Mercury Containing Devices Pesticides Hazardous Wastes Requiring Reclamation Prior to Reuse Distillation of Spent Solvent Wastes 5

6 Recycling Flow Chart Is hazardous waste recycling activity listed in 261.6(a)(2)? No Is hazardous waste recycling activity listed in 261.6(a)(3)? No Is hazardous waste recycling activity listed in 261.6(a)(4)? No Is hazardous waste being exported or imported from OECD countries for the purposes of recovery? No Fully regulated under 261.6(b), (c), & (d). Yes Yes Yes Yes Subject to special standards under Part 266, Subpart C-H And applicable provisions in Part 270 & Part 124 (i.e., permitting). Recyclable material exempt from regulation See Part 279, Used Oil Standards See Part 262, Subpart H Less Stringent Regulation, so MUST be adopted by Individual States. Currently only 5 States in the Contiguous United States have authorization for the DSW Idaho, Illinois, New Jersey, and Pennsylvania (adopted) Iowa (Under Federal Authority) Hazardous Secondary Materials Secondary Materials that are not discarded, but are legitimately reclaimed under the control of the generator. Exclusion for Hazardous Secondary Material Materials that are generated and reclaimed under the control of the generator. Materials that are generated and transferred to another person for reclamation under specific conditions. Materials that EPA deems non-waste through a case-by-case petition process. 6

7 EPA s Definition of Legitimate Recycling 40 CFR defines what constitutes legitimate recycling for hazardous secondary materials. Two Mandatory Criteria Must provide a useful contribution to the recycling process Must yield a valuable product or intermediate Additional Factors to be Considered in Legitimacy Determination Is the HSM managed as a valuable commodity Does the Recycled Product contain toxic constituents at levels similar to a non-recycled product (toxics along for the ride) Reclaimed under the Control of the Generator HSM reclaimed under the control of the generator is not discarded, therefore, not a hazardous waste. Under the Control of the Generator Generated and reclaimed at the same facility Generated and reclaimed by the same company, but at a different facility Reclaimed by a third party under a tolling agreement Reclaimed under the Control of the Generator Generator must submit a notice to EPA every 2 years identifying their recycling activities HSM must be CONTAINED HSM must not be speculatively accumulated 7

8 Requirement Existing Requirements for LQGs DSW Requirements Accumulation time limits yes yes - no speculative accumulation Notification yes yes - every 2 years Tracking shipments yes no Recordkeeping yes - certification that material is generated yes and reclaimed by same "person" or contract between tolling contractor and batch manufacturer. Biennial reporting yes no Emergency and contingency plans yes no Personnel training yes no Storage requirements yes limited - must be contained if land-based unit Residuals management yes, if haz waste yes - if haz waste Financial assurance no no Closure and post-closure yes - general standard no Export notice yes N/A Transferred Off-Site to 3 rd Party for Reclamation Generator Requirements Must submit Notice to EPA Prior to first off-site shipment then every two years thereafter. HSM must not be speculatively accumulated. Must perform a due diligence assessment (audit) of the reclaimer or intermediate facility. Transferred Off-Ste to 3 rd Party for Reclamation Reclaimer Requirements Must submit an initial notice to EPA and every 2 years thereafter Must have Financial Assurance for Closure HSM must be managed in an Environmentally Protective Manner Properly manage/classify residual materials generated by the reclamation process 8

9 Due Diligence Audit Reasonable Effort and Credible Evidence Reclaimer has Notified EPA Reclaimer has Financial Assurance Recycling/Reclamation Process is Legitimate Residuals are Managed Properly Reclaimer s 3-Year Compliance History is Satisfactory Maintain Audit records for 3 years and repeat every 3 years Certification Generator Requirements Requirement Existing Requirements for LQGs DSW Requirements Time limits yes yes - no speculative accumulation Notification yes yes - every 2 years Tracking shipments yes yes - but no manifest needed Recordkeeping yes Maintain ship records (and receipts) for 3 yrs Biennial reporting yes no Emergency and contingency plans yes no Personnel training yes no Storage requirements yes limited - must be contained Financial assurance no no Closure and post-closure yes - general standard no Due diligence n/a yes -reasonable efforts Export notice yes yes - 60 days prior Recycler/Reclaimer Requirements Requirement Existing Requirements for TSDFs DSW Requirements Time limits yes yes - no speculative accumulation Notification yes every 2 years Tracking shipments yes yes - but no manifest needed Recordkeeping Maintain ship records for 3 yrs and provide yes receipts to generators. Biennial reporting yes no Emergency and contingency plans yes no Personnel training yes no Storage requirements yes - managed like analogous raw materials or yes - permit contained if land based storage. Financial assurance yes yes -tailor to recycling Closure and post-closure yes - general standard no Residuals requirements yes - if haz waste yes - if haz waste, protective of HH&E Export notice yes yes 9

10 Incidental Processing Guidance Document Memorandum to the Regions from Director, OSW, October 4, 2005 Preamble to the 1985 Definition of Solid Waste regulations states that materials which undergo only incidental processing are not reclaimed and are excluded under the use/reuse provisions (50 FR 639) Incidental processing includes only those processing steps that are not necessary to material recovery, and which do not themselves regenerate the material or recover material values Incidental Processing Guidance Document EXAMPLES Wetting of dry wastes to avoid wind dispersal Briquetting of dry wastes to facilitate resmelting Shredding and grinding leather trimmings to attain required particle size Triple distillation of 99% mercury to a higher specification Filtration to protect the mechanical integrity of product handling equipment, such as pumps Final filtration to remove minute quantities of particulate matter to guarantee the physical quality of the product Proposed Revisions to the DSW Published July 22, FR Eliminates Transfer-Based Exclusion Reclamation/Recycling Facility Requirements Hazardous Waste Storage Permit Receive on a Hazardous Waste Manifest 10

11 Proposed Revisions to the DSW Transfer-Based Alternative Subtitle C Regulations Generator Requirements Notification Initial and by March 1 every Even-Numbered Year Reclamation Plan Describes HRM and Facility to be Utilized Written Confirmation from Recycling/Reclamation Facility Expected Quantity of HRM Documentation of Legitimacy Proposed Revisions to the DSW Transfer-Based Alternative Subtitle C Regulations Generator Requirements Management Standards Storage Container Marked with the words Hazardous Recyclable Material Storage for up to One-Year Transportation Hazardous Waste Manifest Proposed Revisions to the DSW Retains the Generator-Controlled Exclusion On-Site Within the Same Company Tolling Four Changes to the Generator-Controlled Exclusion Definition of Contained Notification Recordkeeping Storage Requirements 11

12 Proposed Revisions to the DSW Definition of Contained Unit is in good condition with no leaks or continuing or intermittent releases of the hazardous secondary material Designed to prevent releases such as: precipitation runoff, releases to groundwater, dust, fugitive air emissions, and catastrophic unit failures Labeled, or system to identify hazardous secondary materials (e.g., log) Is not used to hold incompatible materials Proposed Revisions to the DSW Legitimacy Criteria Proposed Changes All Four Factors would be Mandatory Applies the Legitimacy Criteria to ALL hazardous secondary materials and hazardous waste recycling Additional Requirements added to the Managed as a Valuable Commodity Factor Or in an equally protective manner Additional Requirements to the Comparison of Toxics in the Product Factor Comparable to or lower than analogous products Documentation of Legitimacy Determinations Proposed Revisions to the DSW Re-Manufacturing Exclusion Material MUST be one of 18 Solvents manufactured and remanufactured for use in reacting, extracting, blending, or purifying (cannot be used for cleaning or degreasing) Re-Manufacturing Requirements Notification Re-Manufacturing Plan Recordkeeping Storage Requirements Comply with Air Emission Standards Storage Limits 12

13 Proposed Revisions to the DSW Variances and Non-Waste Determinations Re-Apply if changes to recycling/reclamation process or materials Re-Notification every other year Partial Reclamation criteria must be reviewed and evaluated collectively Non-Waste Determinations must explain/demonstrate why the hazardous secondary materials do not meet any of the Definition of Solid Waste Exclusions Regional Administrator is the recipient of the petitions for variance and non-waste determinations Real World Issues TOXICS ALONG FOR THE RIDE USED FOR INTENDED PURPOSE Examples A solvent used for degreasing/cleaning operations outlives it s usefulness: - What is the regulatory status of this solvent if it is reclaimed to produce virgin solvent? - What is the regulatory status of this solvent if it is used as an ingredient to make a fertilizer? - What is the regulatory status of this solvent if it is used to clean drums? - What is the regulatory status of this solvent if, after used to clean the drums, the drums are subsequently cleaned with a virgin solvent? 13

14 Examples An ultrapure concentrated sulfuric acid is used in the semi-conductor industry to clean silicon wafers before being etched. Over time the acid picks up small amounts of ash and photo-resist such that it can no longer be used for this purpose. However, the acid concentration is still purer than commercially available sulfuric acid used as a raw material in other industrial processes. - What is the regulatory status of the sulfuric acid if it is used to make reagent-grade sulfuric acid? - What if the sulfuric acid must be filtered first to protect the recycling equipment? Examples What is the regulatory status of copper-containing flue-dust (characteristically hazardous for toxicity) generated from a copper smelting operations air pollution control system that is reclaimed for its copper content? What is the regulatory status of a K061 flue dust from a steel manufacturing process that is reclaimed for its nickel content? What is the regulatory status of the K061 flue dust if it contained a concentration of 0.5% nickel, and the slag generated from the reclamation process contained 0.7% nickel? Discussion? 14