Workshop H Practical Tips & Trends in RCRA Hazardous Waste - PDF document

Workshop H Practical Tips & Trends in RCRA Hazardous Waste Management and Enforcement Tuesday, March 26, 2019 11:15 a.m. to 12:30 p.m.

Biographical Information Timothy W. Ling, P.E., Corporate Environmental Director, Plaskolite, LLC. P.O. Box 1497, Columbus, OH 43216-1497 (614) 294-3281 tim.ling@plaskolite.com Mr. Ling is the Corporate Environmental Director for Plaskolite LLC., a Columbus-based manufacturer of continuously processed plastic sheet. Mr. Ling is responsible for Plaskolite’s environmental compliance at its 10 manufacturing facilities in North America. He has over 28 years of experience in environmental engineering, both as a consultant to businesses, and now as in-house environmental manager. He has spoken and written on a wide range of environmental topics. Mr. Ling graduated with a Bachelor of Science degree in Civil Engineering from the Florida Institute of Technology (1989), and Master of Science degree in Civil Engineering from the University of Notre Dame (1991). He is a Registered Professional Engineer in the states of Ohio and Florida, and a Qualified Industrial Storm Water Practitioner (QISP) in the state of California. David M. Edelstein, Partner, Vorys, Sater, Seymour and Pease LLP 301 East Fourth Street, Suite 3500, Great American Tower, Cincinnati, Ohio 45202 (513) 723-4007, dmedelstein@vorys.com Mr. Edelstein is a Partner in the Vorys Cincinnati office and a member of the finance, energy and real estate group. His practice is focused on environmental enforcement, regulatory, and transactional matters. Prior to joining Vorys, David served as chief of the criminal enforcement unit for EPA Region VI in Dallas, Texas. He also served as a RCRA enforcement attorney for the EPA Region VI. Mr. Edelstein has a Bachelor of Science degree in Biology from Ohio Northern University (2003), a Master’s Degree in Environmental Science from Cleveland State University (2007), and a Juris Doctorate from the Cleveland-Marshall College of Law (2007). Scott A. Smith, P.E., CPEA, CHMM, Principal Consultant, ERM, Inc. 3333 Richmond Road, Suite 160, Beachwood, OH 44122 216-593-5212, Scott.Smith@erm.com Mr. Smith is a senior project manager based in ERM’s Cleveland office, and has over 30 years of experience with environmental consulting, planning and managing numerous individual and multi-site, multi-state environmental compliance evaluations for industries including chemical processing plants, steel foundries, plastics manufacturers, automotive manufacturing plants, and various industrial manufacturing facilities. His regulatory experience includes: Environmental, Health and Safety compliance auditing, Spill Prevention, Containment and Countermeasures (SPCC) planning, storm water and RCRA contingency plans, air emission inventories and permits, SARA Title III and hazardous waste reporting, RCRA closure assessment and implementation, Phase I/Phase II environmental site assessments, and drinking water systems for Non-Transient Non- Community water systems. Mr. Smith is a Registered P.E. in the states of Ohio, Michigan and Pennsylvania, and holds a Master of Project Management degree from the Keller Graduate School of Management.

Practical Tips & Trends in 1 RCRA Hazardous Waste Management & Enforcement Timothy W. Ling, P.E. Plaskolite, LLC. David M. Edelstein Vorys, Sater, Seymour and Pease LLP. Scott A. Smith, P.E., CPEA, CHMM ERM, Inc.

2 Plaskolite, LLC  Plastic sheets & pellets  Doubled in size in 2018  11 plants

3 Topics  RCRA update  Enforcement - from civil to CRIMINAL!!  Trends

4 Where Is RCRA Now…  Field is MATURE  Compliance “routine"  Less new pollution  Cleanups largely done  EPA less “command-and-control”  BUT…

5 EPA’s Not Done…  Going electronic (e-Manifest)  “Next Gen” enforcement  Lower limits & tighter rules?  New or expanded rules?

6 What’s Changed?  Definition of Solid Waste (DSW)  e-Manifest  Ohio universal waste rule

7 Definition of Solid Waste (DSW) Rule  “Is RECYCLING considered hazardous waste generation?”  “2015 DSW” rule effective July 13, 2015

8 American Petroleum Institute v. EPA  2015 DSW court challenge  D.C. Circuit ruling March 6, 2018  Vacated legitimacy of “Factor 4”  Vacated “Verified Recycler Exclusion”

9 2018 DSW: Haz Secondary Materials  May 30, 2018 DSW rule to implement March 6, 2018 decision  Replaced specific 2015 Rule provisions  Clarifications on recycling hazardous secondary materials

10 Who’s Adopted the 2018 Definition?

11 What’s The 2018 DSW Final Rule?  “Legitimate” recycling provision  “Under control of the generator” exclusion  Self-implementing  Materials generated & reclaimed under generator’s control

12 What’s The DSW Final Rule?  “Transfer-based” exclusion  Self-implementing  Materials generated & transferred to another company for reclamation  Non-waste determination procedure  Materials that are non-wastes  Petition process

13 e-Manifest – The Basics  Primary goals:  No paper  Fees discourage paper manifests  Start date: June 30, 2018  Signed manifests to U.S. EPA within 30 days of signature

14 e-Manifest – The Basics (cont.)  Also submit for state-defined HW that requires a HW manifest  Data publicly available in 90 days  5-part manifest or paper printout still needed in truck (per DOT rules)

15 e-Manifest – The Basics (cont.)  Generators are not required to sign up to use e-Manifest, but recommended  Sign-up through RCRAInfo at CDX (http://epa.ohio.gov/derr/National-e-Manifest-System)  RCRAInfo access to manifests for state/federal regulators

16 e-Manifest – Fees  Mail paper - $15  Scanned image uploaded - $10  Image and data uploaded - $6.50  e-Manifest - $5

17 Ohio Universal Waste Rule  Paint & paint-related waste  Antifreeze  Non-empty aerosol containers

18 NOT Paint  Adhesives  Stucco/cement based coatings  Geotextiles & geomembranes  Surface leveling products  Insulation products/spray foams  Petroleum asphalt products  Paint ingredients (solvent, binder, pigment, 2-part epoxy)

19 Paint-Related Wastes  Material contaminated with paint  Packaging of paint  Wholesale/retail operations  Paint manufacturing  Paint application/removal activities

20 NOT Paint-Related Wastes  Demolition debris  Spill cleanup materials  Floor sweepings, other than paint chips  Paint ingredients (solvent, binder, pigment, 2-part epoxy)

21 Paint-Related Wastes  Only handler that generated UW paint- related wastes can reclaim on-site  Waste codes can include: ignitability, heavy metals, characteristic & listed solvents

22 Ohio-Specific UW Issues  If waste is not HW, then not required to be managed as a HW or a UW  Ohio-only UW program optional  UWs are a unique subset of HW subject to less burdensome requirements

23 What Else Has Changed?  Limiting use of guidance documents in affirmative civil enforcement cases  Jan. 25, 2018 Assoc. AG memo  Cooperative Federalism  Jan. 22, 2018 (USEPA Asst. Admin. Bodine) & Oct. 30, 2018 (USEPA Acting Admin. Wheeler) memos

24 The Civil Enforcement Process  Targeting  Inspection (or information request)  Enforcement (administrative, civil)  Resolution (penalty, injunctive relief)

25 Enforcement Triangle Criminal Civil Administrative Enforcement

26 How Does EPA Target Facilities?  Annual planning of a list of facilities  Time since last inspection (schedule)  Compliance history  Orders, Consent Decrees, open NOVs  Pollution cross sections ( NESHAPS & RCRA waste impoundments)  “Next Gen” enforcement strategies

27 Civil Inspectors’ General Authority  Administrative authority to inspect equipment, records & operations  Enter during normal business hours, at main gate  Get permission from someone in authority (NOT guard or receptionist)

28 Civil Inspectors’ General Authority  Present credentials & explain purpose  Will sign in but will never sign liability waivers or confidentiality agreements  Advance notice is not required

29 Civil Inspectors’ General Authority  Under no circumstance is fear, trickery or any kind of threat to be used  A civil inspector’s “five senses” to be used at all times

30 Exit Interviews  Inspectors should conduct exit interviews & you can request one  Take copious notes & request copies of documentation (all “discoverable”)  Your observations & notes essential to Legal in any Agency follow-up

31 When It Becomes CRIMINAL  False statements to the Government  Obstruction  Conspiracy

32 The Criminal Enforcement Process Leads from: - EPA offices - Other agencies - Citizens Prosecutions Leads Leads Evaluate thousands of leads/year Investigations Open about 20% as criminal investigations Prosecutions >90% conviction rate

33 Criminal Intent  Primary role of criminal enforcement: “Is it a civil or criminal violation(s)?”  Perpetrator's mental state is KEY  Offender must be shown to have acted knowingly in violating the law