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

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

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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.

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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.

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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.

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Practical Tips & Trends in 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.

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Plastic sheets & pellets Doubled in size in 2018 11 plants

Plaskolite, LLC

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Topics

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

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Where Is RCRA Now…

Field is MATURE

  • Compliance “routine"
  • Less new pollution
  • Cleanups largely done
  • EPA less “command-and-control”

BUT…

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EPA’s Not Done…

Going electronic (e-Manifest) “Next Gen” enforcement Lower limits & tighter rules? New or expanded rules?

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What’s Changed?

Definition of Solid Waste (DSW) e-Manifest Ohio universal waste rule

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Definition of Solid Waste (DSW) Rule

“Is RECYCLING considered hazardous waste generation?” “2015 DSW” rule effective July 13, 2015

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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”

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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

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Who’s Adopted the 2018 Definition?

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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

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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
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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

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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)

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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

e-Manifest – The Basics (cont.)

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e-Manifest – Fees

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

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Ohio Universal Waste Rule

Paint & paint-related waste Antifreeze Non-empty aerosol containers

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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)

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Paint-Related Wastes

Material contaminated with paint

  • Packaging of paint
  • Wholesale/retail operations
  • Paint manufacturing
  • Paint application/removal activities
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NOT Paint-Related Wastes

Demolition debris Spill cleanup materials Floor sweepings, other than paint chips Paint ingredients (solvent, binder, pigment, 2-part epoxy)

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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

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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

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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

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The Civil Enforcement Process

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

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Enforcement Triangle

Enforcement Criminal Civil Administrative

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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

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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)

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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

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Civil Inspectors’ General Authority

Under no circumstance is fear, trickery

  • r any kind of threat to be used

A civil inspector’s “five senses” to be used at all times

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Exit Interviews

Inspectors should conduct exit interviews & you can request one Take copious notes & request copies

  • f documentation (all “discoverable”)

Your observations & notes essential to Legal in any Agency follow-up

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When It Becomes CRIMINAL

False statements to the Government Obstruction Conspiracy

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The Criminal Enforcement Process

Leads

Prosecutions

Leads from:

  • EPA offices - Other agencies
  • Citizens

Evaluate thousands of leads/year Open about 20% as criminal investigations >90% conviction rate

Leads Investigations Prosecutions

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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

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Criminal Enforcement Tools

Search Warrants Grand Jury Subpoenas Interviews Surveillance Undercover Operations Surreptitious Evidence Gathering

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Keep out of RCRA

  • Substitution (e.g., parts washer)
  • Waste reduction
  • Continued use (beneficial reuse)
  • Universal waste rules
  • Recycling (if NOT haz waste)

RCRA Trends

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Concern about e-Manifests

  • Useful for “desktop enforcement”
  • Readily available to the public

Private enforcement (citizen lawsuits)

  • West Coast states (CA, WA)
  • Storm water, CA Proposition 65
  • What’s EPA’s role?

RCRA Trends

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Sites reaching end of 30-year post- closure monitoring period

  • Will it end?
  • What’s next?

What’s Congress & EPA going to do next?

RCRA Trends

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VSQG consolidation Episodic generation Waiver from 50-foot rule

Fewer CARROTS

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SQG re-notification Hazards on accumulated waste labels SAAs subject to incompatibility & emergency preparedness/prevention

More STICKS

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Notification of closure Closure as a landfill for LQGs accumulating hazardous wastes in containers that cannot meet closure performance standards

More STICKS (cont.)

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Biennial reporting for whole year, not just months the generator is an LQG Biennial reporting for recyclers who don’t store prior to recycling Quick reference for contingency plans

More STICKS (cont.)

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RCRA Trends

Regulation over guidance documents More state influence Budget cuts could have the largest impact on enforcement

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Budget Cut Impacts on Enforcement

Likely little in the way of rulemaking Fewer on-site inspections More “Next Gen” enforcement More citizen & NGO suits

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Final Thoughts

“Is RECYCLING considered hazardous waste generation?” OH:Yes IN:Maybe KY:No

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Final Thoughts

EPA says e-Manifest changes =

  • Cost savings
  • More accurate & timely information
  • Effective waste shipment monitoring
  • Potential for integrating with other

federal/state information systems

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Final Thoughts

BUT…could also =

  • Easier to find non-compliance
  • Easier to take enforcement
  • $5 e-Manifest fee today…
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A Final Thought…

DON’T SWEAT THE “STUFF” THAT YOU CAN’T CONTROL …

SWEAT THE “STUFF” THAT YOU CAN CONTROL !!!

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Final Thoughts

Explore continued use/beneficial reuse options Take advantage of Ohio universal waste rules CESQG/VSQG on EPA radar

  • Voluntary SQG?
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Final Thoughts

Prepared for “Next Gen” enforcement

  • “Desktop” enforcement
  • e-manifest discrepancies
  • Waste management SOP
  • Waste profiles, manifests, inventories

3-year RCRA record retention

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Burning Questions