Environmental Law Hazardous Materials Hazardous Wastes and by jennyyingdi

VIEWS: 8 PAGES: 93

									    Environmental Law:
   Hazardous Materials,
  Hazardous Wastes and
Other Hot Topics for Retailers
            June 6, 2011

          Elizabeth Richardson
              202-789-6066
        erichardson@bdlaw.com

                                 1
           Environmental Law
•   Hazmat Transportation
•   Hazardous Waste
•   Other Hot Topics
•   Some Observations




                               2
Hazardous Materials Transportation

• DOT Hazmat Regulations apply to
  materials based on their potential to pose
  hazards during transportation.
• The regulations prescribe very specific
  requirements for packaging, marking,
  labeling, and documentation for any
  material classified as hazardous.
• Additional requirements for training and
  recordkeeping
                                               3
       Why Does Hazmat Matter?
• Retailers send (and receive) a number of materials
  subject to regulation as hazardous materials.
   –   Batteries.
   –   Household cleaners.
   –   Aerosols.
   –   Pesticides.
   –   Certain personal care products.

• Obligations apply as the shipper of hazmat throughout
  distribution and reverse distribution chains.
   – Products and returned products.
   – Materials from routine store maintenance activities.
• Hazmat regulations apply to both products and wastes.
                                                            4
     Overview of Hazmat Rules
• Source of the Regulations
• Identification and classification of
  dangerous goods.
• Key requirements.
• Enforcement.




                                         5
    Source of the Regulations
• Source of the Regulations
  – Hazardous Materials Regulations (“HMR”), issued
    by the U.S. Department of Transportation
    (“DOT”), 49 CFR 171-185.
  – International rules for air or ocean transport
    • International Civil Aviation Organization (“ICAO”)
      Technical Instructions for the Safe Transport of
      Dangerous Goods by Air.
    • International Air Transport Association (“IATA”)
      Dangerous Goods Regulations.
    • International Maritime Dangerous Goods (“IMDG”) Code
      of the International Maritime Organization (“IMO”).

                                                             6
 Identification and Classification of
         Hazardous Materials
• Key Elements
   – Dangerous goods tables (49 CFR 172.101).
   – Hazard classes and divisions.
• Interrelationship
   – Listings in the tables apply only to materials that meet
     the criteria of a hazard class or division.
   – If a material meeting the criteria of a hazard class or
     division is not covered by a specific listing in the
     tables, it will be covered by a generic listing (e.g.,
     “Flammable liquid, n.o.s.”).

                                                            7
            Hazard Classes
1   Explosives
2   Gases (flammable, poisonous, and/or compressed)
3   Flammable Liquids
4   Flammable Solids/Dangerous When Wet Materials
5   Oxidizers/Peroxides
6   Poisonous/Infectious Materials
7   Radioactive Materials
8   Corrosive Materials
9   Miscellaneous Hazardous Materials
                                                 8
        Class 1: Explosives
• Several divisions based on
  nature and degree of
  explosion hazard.
• Examples:
  – Fireworks.
  – Flares.
  – Toy rockets.


                               9
                Class 2: Gases
• Several divisions:
  – Flammable (2.1).
  – Non-flammable, non-toxic
    (asphyxiant) (2.2).
  – Toxic (2.3).
• Examples:
  –   Aerosols.
  –   Propane tanks.
  –   Refrigerant gases.
  –   Fire extinguishers

                                 10
    Class 3: Flammable Liquids
• Classification is based primarily on flash
  point (e.g., < 60ºC or 140ºF (closed cup
  test)).
• Other factors may be relevant:
   – Ability to sustain combustion.
   – Water or alcohol content.
• No divisions, but packing groups based
  on:
   – Flash point.
   – Boiling point.
   – Viscosity.
                                               11
   Class 3: Flammable Liquids
  (continued)
• Additional category of “combustible”
  liquids in some countries (flash
  point up to 90ºC/ 93ºC) in U.S and
  some other countries.
• Examples:
  –   Paint, pain thinners
  –   Lighter fluid
  –   Perfumes
  –   Nail polish remover
  –   Others

                                         12
      Class 4: Reactive Solids
• Several divisions:
   – Flammable solids (4.1).
   – Spontaneously combustible solids
     (4.2).
   – Dangerous when wet (4.3).
• Further divided into packing groups.
• Examples:
   – Matches
   – Charcoal
                                         13
   Class 5: Oxidizers/Peroxides
• Two divisions:
  – Oxidizers (5.1).
  – Peroxides (5.2).
• Further divided into packing
  groups.
• Examples:
  –   Some cleaning agents.
  –   Hydrogen peroxide (first aid).
  –   Some hair products.
  –   Some pool chemicals.

                                       14
   Class 6: Toxic/Infectious
• Toxic substances (6.1)
  – Measures of toxicity:
     • Oral LD50
     • Dermal LD50
     • Inhalation LC50
  – Packing groups based on toxic levels.
• Infectious Substances (6.2)
  – Based on presence of pathogens.
  – Exemptions may apply.
  – Categories based on pathogen and
    hazard.
     • Category A.
     • Category B (“biological substances”).
                                               15
  Class 6: Toxic/Infectious

(continued)
• Examples:
  – Lawn and garden products
    (pesticides)
  – Insecticides
  – Pet care (e.g., flea collars)




                                    16
 Class 7: Radioactive Materials
• Numerous categories,
  based on radionuclide,
  activity concentration,
  total consignment
  activity, etc.
• Examples:
  – Exit signs


                                  17
           Class 8: Corrosives
• Classification is based on potential to
  corrode skin, steel, or aluminum.
• No divisions.
• Packing groups based on type and extent
  of corrosion hazard.
• Potential examples:
   – Lead acid batteries.
   – Compact fluorescent lamps – due to
     mercury.
   – Bleach.
   – Photo-processing chemicals.

                                            18
         Class 9: Miscellaneous
• Catch-all category.
• Some designated internationally:
   – Lithium metal or lithium ion batteries.
   – Magnetized material.
   – Elevated temperature materials.
   – Aviation regulated liquid or solid.
   – Environmentally hazardous substances.
• Examples:
   – Lithium batteries.
   – Environmentally hazardous substances
     (e.g., hazardous wastes or RQ of hazardous   LITHIUM METAL BATTERY
     substances).



                                                                          19
     Multiple Hazard Materials
• Rules of precedence determine
  primary hazard.
• Material must be shipped under a
  name corresponding to the primary
  hazard.
• Requirements for other hazards
  generally also apply.



                                      20
  Variations from Full Regulation
• Exceptions from full packaging, marking/labeling, etc.
  requirements available for certain materials:
   –   Excepted Quantities (“Small Quantities” in the U.S.).
   –   Limited Quantities.
   –   Special Permits, Exemptions or Approvals (case-by-case).
   –   ORM-D: “Other Regulated Materials” (US only)
• Generally must meet a reduced set of requirements.
• Rules specify availability of exceptions for each Hazard
  Class or material.
• “Special Provisions” set forth additional variations.



                                                                  21
              Key Requirements
• Shipping Papers
   – 49 CFR 172. 200 et seq.
• Packaging.
   – 49 CFR Parts 173 and 178
• Marking/Labeling/Placarding.
   – 49 CFR 172.300-500 et seq.
• Emergency Response.
   – 49 CFR 172.600 et seq.; 171.15-16
• Security.
   – 49 CFR 172.800 et seq.
• Training.
   – 49 CFR 172.700 et seq.
• Registration.
   – 49 CFR 107.601 et seq.


                                         22
            Shipping Papers
• Shipper’s Declaration for Hazardous Materials
   – Originated by Shipper
   – Identifies Hazardous Materials and provides
     safety information
   – Contact information for Shipper and Consignee
   – Precise presentation of contents of shipment—
     Proper Shipping Name, quantity, packaging,
     etc.
• Certify that all hazmat requirements are met.


                                                     23
                      Packaging
• General
   – Package must be closed, able to withstand transportation, not
     reactive with Hazardous Material
   – Different materials within package must be compatible
• Other requirements specific to the hazard class, material
   – Specific packaging configurations permitted
      • Single packagings
      • Combination (inner and outer packaging)
   – Types of UN Specification packaging permitted, performance
     tests
   – Weight or other quantity limits
• Variety of additional requirements, such as cushioning
  or absorbent material or additional requirements for
  overpacks
                                                                     24
Marking/Labeling
      • Packages must be properly
        marked and labeled with
         – UN Specification Packaging Code
         – Hazardous Materials information
              • UN Number
              • Proper Shipping Name
              • Net quantity or gross weight (IATA)
         –   Consignor/Consignee
         –   Orientation marking
         –   Hazard Class Labels
         –   Handling Labels, e.g., Orientation,
             Labels for Particular Materials
             (Lithium Batteries, Magnetized
             Materials)


                                                 25
           Marking/Labeling
– Detailed requirements for minimum size, text, color,
  location, etc.
– Labels must be readily visible, not folded over
  different faces of the package, and package must be
  of a size so that there is space to affix the label
– Prohibited Markings and Labels:
    • Cannot mark or label indicating hazard if hazard
      not actually present
    • Markings or labels required by other regulations
      must not conflict or be confused with Hazardous
      Materials markings
    • Arrows for purposes other than indicating proper
      orientation of liquid Dangerous Goods prohibited.

                                                          26
Emergency Response & Security

• Emergency Response information must
  be available during transportation
• Incident Reporting
   – Within 12 hours: Telephone NRC
   – Within 30 days: Written Report to DOT
• Security Training/Security Plan
   – Plan includes assessment of and
     measures to address security risks from
     personnel, unauthorized access, and en
     route transportation risks



                                               27
   Training
• Shippers must maintain initial
  and recurrent training program
• Training must include:
     •   General Familiarization
     •   Function Specific
     •   Safety
     •   Security
• Employee must be tested to
  confirm successful training
  completion
• Training records must be
  maintained for 3 years
                                   28
                    Training
• Training upon initial employment and every 3
  years (2 years under IATA air requirements).
• Who must be trained?
  – US DOT requires that a “HazMat Employer” train
    every “HazMat employee”
     • HazMat employer is someone who transports or
       causes hazardous materials to be transported in
       commerce
     • HazMat employee is someone who directly
       affects hazardous materials transportation safety



                                                      29
              Registration

• Country-specific requirements for
  Registration
• US DOT: Persons who offer certain
  quantities of hazardous materials for
  transportation must register annually
  and pay a fee




                                          30
New Developments in Hazmat Rules

• Impact of the Globally Harmonized System
  (“GHS”)
• Elimination of ORM-D
• Changes to Lithium Battery rules




                                         31
    ORM-D  Limited Quantities
• ORM-D: “Other Regulated Materials”
   – Limited quantities of hazardous materials that are
     “consumer commodities.”
   – Pose limited risk.
   – Subject to substantially reduced requirements.
• Elimination of ORM-D class by January 1, 2014 (if ORM-
  D-AIR, by January 1, 2013)
• New provisions for Limited QuantitiesMarking
• More stringent requirements for air (e.g.,quantity limits)
• Eligibility specified in § 172.101 Table or Part 173,
  depends on Hazard Class and Packing Group,

                                                          32
                 Lithium Batteries
• Classified as Class 9 miscellaneous
  dangerous goods.
• Heightened concern due to recent fires
  during air transport (and elsewhere).
• Rapidly evolving rules:
   – US: new rule proposed 1/11/2010.
• Rules vary based on battery type:
   – Lithium metal (a/k/a primary or non-
     rechargeable).
   – Lithium ion (a/k/a secondary or
     rechargeable).
• Rules vary based on battery size:
   – Small – includes most consumer batteries.   LITHIUM METAL BATTERY

   – Large.
                                                                     33
                   Lithium Batteries
• Rules vary based on packaging:
    – Batteries alone.
    – Batteries contained in equipment.
    – Batteries packed with equipment.
• Key ICAO/IATA requirements for small batteries
  to be exempt from full Class 9 requirements:
    – Must pass U.N. tests.
    – Li Battery Handling Label and information on
      Air Waybill unless package contains ≤2
      batteries and ≤4 cells installed in equipment.
    – Packaged to prevent short circuit, etc.
    – Watt-hour marking on lithium ion batteries.
    – Weight limits.
    – Must instruct employees.
• Batteries recalled or returned due to safety
                                                       LITHIUM METAL BATTERY
  concerns are generally prohibited from air
  transport.
                                                                           34
                 Lithium Batteries
• U.S. currently imposes additional
  requirements on small lithium
  batteries.
   – Lithium metal batteries shipped alone are
     forbidden on passenger aircraft.
   – Lithium metal batteries packed with or
     contained in equipment are forbidden on
     passenger aircraft unless <5 kg net weight
     per package.
   – Forbidden packages must be marked:
     “LITHIUM METAL BATTERIES –
     FORBIDDEN FOR TRANSPORT
     ABOARD PASSENGER AIRCRAFT.”
   – NOTE: These requirements must be
     followed even if otherwise in compliance     LITHIUM METAL BATTERY
     with ICAO/IATA.

                                                                      35
                     Lithium Batteries
•   US DOT proposed new rule January 11, 2010.
•   Proposal would eliminate exception for “small”
    lithium batteries shipped by air
     – Must be shipped as Class 9
     – New packaging and stowage requirements
     – “Hazmat” training.
•   Proposal would also impose additional requirements
    on other modes
     – Packages must be marked “LITHIUM BATTERIES –
       FORBIDDEN FOR TRANSPORT ABOARD
       AIRCRAFT.”
     – Markings and documents to indicate special
       procedures to be followed if package is damaged.
     – More stringent packaging requirements.
     – Personnel training.
•   New exception for “extremely small” lithium batteries
    (0.3 g Li or 3.7 Wh)
•   Final rule expected early 2011; exact requirements
                                                            LITHIUM METAL BATTERY
    unknown.

                                                                                36
        Bottom Line on Changes
        to Lithium Batteries Rules
• U.S. DOT engaged in rulemaking that is likely to
  impose substantial new requirements on
  transport of lithium batteries, especially by air
  (including if shipped in products), even if simply
  harmonization with ICAO/IATA.
• Draft final rule now at OMB for review; additional
  proposal in the works.
• House of Representatives bill to block
  regulations more stringent that international
  rules.
                                                   37
                     Enforcement
• Enforcement varies country by country.
• In the U.S.—
   – Multiple Enforcing Agencies
      •   DOT Office of Hazardous Materials Enforcement (“OHME”).
      •   Federal Aviation Administration (“FAA”).
      •   U.S. Customs and Border Protection (“CBP”).
      •   U.S. Coast Guard (“USCG”).
      •   Federal Motor Carrier Safety Administration (“FMCSA”).
      •   Federal Railroad Administration (“FRA”).
   – Increased focus since September 11, 2001.
   – Authorized penalties recently increased.
      • Maximum civil penalty $50,000 per violation per day.
      • In cases of substantial destruction of property, severe injury, illness
        or death, maximum civil penalty $100,000 per violation per day.


                                                                              38
Hazardous Materials Transportation



           Questions?




                                 39
              Hazardous Waste
•   Resource Conservation and Recovery
    Act, 42 U.S.C. § 6901, et seq.
    –   EPA authorizes State hazardous waste programs
        (at least as stringent)
    –   Both EPA and States have enforcement authority
•   Key Questions:
    (1) Is it a WASTE?
    (2) Is it a HAZARDOUS WASTE?


                                                         40
IS IT A WASTE?




                 41
       STATUTORY DEFINITION OF
            “SOLID WASTE”
• RCRA Section 1004 (27): “any garbage,
  refuse, sludge from a waste treatment
  plant, water supply treatment plant, or a
  pollution control facility, and other
  discarded material, including solid, liquid,
  semisolid, or contained gaseous material,
  resulting from industrial, commercial,
  mining, and agricultural operations, and
  from community activities….”
                                                 42
                Solid Waste
•   Trickiest questions are generally
    whether a material that has been used
    can still be used or recycled for the
    same or another purpose
•   What is the Point of Generation?
•   Examples:
    – Materials sent through reverse
      distribution chain
    – Half empty aerosol can
    – Batteries
                                            43
  FEDERAL JUDGES IN EARLY CASES ON
EPA’S REGULATORY DEFINITION OF SOLID
               WASTE
• “[A] mind-numbing journey.”
    – American Mining Congress v. EPA, 824 F. 2d 1177, 1189 (D.C. Cir.
      1987)
• “[A] statutory Cloud Cuckoo Land.”
    – Inland Steel Co. v. EPA, 901 F.2d 1418, 1421 (7th Cir. 1990)
• “[It] has an ‘Alice in Wonderland’ air about it”
    – Connecticut Coastal Fisherman’s Ass’n v. Remington Arms Co., 989
      F.2d 1305, 1308 (2nd Cir. 1993)
• “I have attempted unsuccessfully to discern some pattern in the
  regulatory scheme.”
    – U.S. v. Marine Shale Processors Inc., 39 ERC 1681, 1683 (W.D. La.
      1994)
• “The people who wrote this ought to go to jail. They ought not to be
  indicted, that’s not enough.”
    – Judge Adrian G. DuPlantier, presiding over the Marine Shale case,
      quoted in Pesticide & Toxic Chemical News (Sept. 7, 1994) at 20.
                                                                          44
      OVERVIEW OF REGULATORY
             DEFINITION
• The following materials are solid wastes and
  potentially a hazardous waste subject to Subtitle
  C regulation, 40 C.F.R. Section 261.2:

  – Disposed of (e.g., sent to a landfill)
  – Burned or incinerated


• The complications arise with respect to materials
  that are recycled rather than disposed

                                                  45
     DEFINITION OF SOLID WASTE MATRIX
                                                                          Speculative
                     Use Constituting     Burning for     Reclamation                    Direct Use/Reuse
                                                                         Accumulation
                         Disposal       Energy Recovery   261.2(c)(3);                       261.2(e);
                                                                          261.2(c)(4);
                       261.2(c)(1)        261.2 (c)(2)     261.1(c)(4)                      261.1(c)(5)
                                                                          261.1(c)(8)
Excluded Materials
      261.4

 Spent Materials
                         WASTE             WASTE            WASTE          WASTE
   261.1(c)(1)

  Listed Sludges
                         WASTE             WASTE            WASTE          WASTE
      260.10

  Characteristic
                         WASTE             WASTE                           WASTE
  Sludges 260.10

Listed By-Products
                         WASTE             WASTE            WASTE          WASTE
    261.1(c)(3)

Characteristic By-
    Products             WASTE             WASTE                           WASTE
   261.1(c)(3)
  Commercial
Chemical Products        WASTE             WASTE
    261.33
  Scrap Metal
  261.4(a)(13);          WASTE             WASTE            WASTE          WASTE
   261.1(c)(6)
Inherently Waste-
  like Materials         WASTE             WASTE            WASTE          WASTE             WASTE
     261.2(d)

                                          Blank = not a solid waste                                  46
  CONDITIONAL EXCLUSIONS, 261.4

• Industrial wastewater discharges that are point
  source discharges regulated under Section 402
  of CWA, 261.4 (a)(4)
• Secondary materials that are reclaimed and
  returned to original process, 261.4 (a)(8)
• Shredded circuit boards, 261.4 (a)(14)
• Primary mineral processing spent materials,
  261.4 (a)(17)
• Zinc fertilizer made from excluded secondary
  materials, 261.4 (a)(20),(21)
                                                    47
                 TYPES OF MATERIALS
•   Spent materials (261.1(c)(1)):
     – those materials that have been used and as a result of contamination can
        no longer serve the purpose for which they have been used without further
        processing.
     – Shapiro March 24, 1994 Memorandum
•   Sludges (260.10): solid, semi-solid, or liquid waste generated from a
    wastewater treatment plant, water supply treatment plant, or an air pollution
    control device.
•   By-product (261.1(c)(3)): a material that is not one of the primary products of a
    production process and not solely or separately produced by the production
    process (e.g., process residues)
•   Commercial Chemical Products (261.33 plus): all types of unused
    commercial chemical products, whether or not they would normally be
    considered chemicals
•   Scrap metal (261.2(c)(6)): bits and pieces of metal parts or metal pieces that
    may be combined together with bolts or soldering (e.g., scrap autos) which
    when worn or superfluous can be recycled.
•   Inherently waste-like materials (261.2(d)): e.g., dioxin containing wastes
    F020, F022

                                                                                   48
  PROBLEMS WITH EPA’S APPROACH
• The categories of materials and recycling processes are
  unclear and often overlap (i.e., what is a spent material
  as opposed to a sludge or by-product)
• EPA regulatory interpretations must be consulted, they
  can be confusing and contradictory
   – RCRA Online
   – www.epa.gov/wastes/hazard/dsw/compendium.htm
   – www.epa.gov/NE/enforcement/waste/rcraregs/index.htm
• Bizarre results
• Point of generation not clear
• RCRA not designed for PRODUCTS

                                                           49
    EPA Definition of Solid Waste
            Rulemaking
• Rule issued in October 2008, streamlined
  regulation of hazardous waste recycling
• Earthjustice challenge
• Planned 2011 Proposed Rule
• Environmental Justice Analysis




                                             50
IS IT A HAZARDOUS WASTE?




                           51
          What is Hazardous?
• There are 5 ways that a solid waste can
  be classified as a hazardous waste:
  – If it exhibits a characteristic of hazardous
    waste identified by EPA.
  – If it is listed as a hazardous waste.
  – If it is a mixture of a listed hazardous waste
    and a solid waste.
  – If it is derived from the treatment, storage, or
    disposal of a listed hazardous waste.
  – If it contains a listed hazardous waste.
                                                       52
 Hazardous Waste Characteristics
• Any solid waste that exhibits a characteristic of
  hazardous waste is considered hazardous. [40 CFR §
  261.3(a)(2)(i)]
• EPA has identified 4 characteristics:
   – Ignitability. [40 CFR § 261.21]
   – Reactivity. [40 CFR § 261.22]
   – Corrosivity. [40 CFR § 261.23]
   – Toxicity.     [40 CFR § 261.24]
• Some states have additional characteristics, e.g.,
  California, Washington


                                                       53
                     Ignitability
• Liquids: Flash point < 60ºC (140ºF).
   – Exception for aqueous liquids < 24% alcohol.
• Non-Liquids:
   – Capable of causing fire through friction, absorption of
     moisture, or spontaneous chemical changes; and
   – When ignited, burns vigorously & persistently enough
     to create a hazard.
• Compressed Gases: DOT Test.
• Oxidizers: DOT Test.



                                                           54
                    Corrosivity
• pH Test
   – pH < 2.0 or pH > 12.5.
   – Only applicable to aqueous wastes.
• Steel Corrosion Test
   – Corrodes steel faster than 0.25 inch per year.
   – Only applicable to liquid wastes.
• State-Only tests for corrosivity of solids
   – Mix solid with equal weight of water and measure pH.



                                                        55
                    Reactivity
• No Tests, Just 8 Narrative Categories:
  – Normally unstable and capable of violent change.
  – Reacts violently with water.
  – Forms explosive mixtures with water.
  – When mixed with water, releases toxic gases.
  – CN or sulfide waste that releases toxic gases
    between pH 2.0 and 12.5.
  – Reacts explosively if exposed to strong initiating
    source.
  – Readily capable of explosive reaction.
  – DOT explosive.

                                                         56
                          Toxicity
• Solid wastes are considered hazardous if a simulated
  landfill leachate from the waste contains hazardous
  constituents above regulatory limits. [40 CFR § 261.24]
• The simulated leachate is obtained using the Toxicity
  Characteristic Leaching Procedure (“TCLP”).
• The regulatory limits are based on ingestion of drinking
  water contaminated by the leachate.
   – MCLs/RfDs/RSDs for about 40 constituents.
      • E.g., lead, mercury, cadmium, silver, vinyl chloride
   – Multiplied by 100 to reflect dilution/attenuation
     between the landfill and the drinking water well.

                                                               57
 General Points on Characteristics
• Testing is not required.
   – Generators can make hazard determination based on knowledge
     of the generating process. [40 CFR § 262.11(c)]
• Wastes are not hazardous unless a “representative
  sample” exhibits a characteristic. [40 CFR §§ 261.21 –
  261.24]
   – A sample is “representative” if it is expected to exhibit the
     average properties of the whole. [40 CFR § 260.10]
   – Due to waste variability, one sample alone is rarely
     representative. [SW-846, Chapter 9]
   – If multiple samples give different results, statistics can be used to
     make the hazard determination (upper limit of 90th percentile
     confidence interval about the mean).
• Identifying the “waste” can be complicated.
                                                                        58
      Hazardous Waste Listings
• Any solid waste that is listed in Subpart D
  of 40 CFR Part 261 is hazardous. [40 CFR
  § 261.3(a)(2)(ii).
• There are four lists in Subpart D:
  – “F” List.    [40 CFR § 261.31]
  – “K” List.   [40 CFR § 261.32]
  – “P” List.    [40 CFR § 261.33(e)]
  – “U” List.   [40 CFR § 261.33(f)]

                                           59
          “F” & “K” List Wastes
• F-List: Wastes from Non-Specific Sources
  – Spent solvents (F001-F005).
  – Electroplating sludges (F006, F019).
• K-List: Wastes from Specific Sources
  – Heat exchanger bundle cleaning sludge from
    petroleum refineries (K050).
  – Brine purification muds from the mercury cell process
    in chlorine production (K071).
• Each listing must be read and applied carefully.
• Each listing has its own history, guidance, and
  lore.
                                                       60
          “P” & “U” List Wastes
• P-List: Acutely hazardous commercial chemical
  products (“CCPs”).
   – Mostly FIFRA “restricted” pesticide chemicals.
• U-List: Toxic CCPs
   – Various common industrial chemicals.
• The listings do not cover all wastes containing
  the listed chemicals – only CCPs.



                                                  61
                       CCPs
• CCPs are unused chemical products that are
  discarded. [40 CFR § 261.33(d), Comment]
  – Pure listed chemicals.
  – Technical grades of the listed chemicals.
  – Formulations in which a listed chemical is the sole
    active ingredient.
• The following are also covered by the CCP
  listings:
  – Off-specification variants of listed chemicals.
  – Residues in non-“empty” containers of listed
    chemicals.
  – Residues from cleanup of spills of listed chemicals.


                                                           62
      General Points on Listings
• No amount of testing will tell you whether a
  waste is listed.
• To decide if a waste is listed, you must know its
  past.
• If the history is not known, can sometimes
  assume the waste is not listed




                                                      63
       Other Hazardous Wastes
• “Mixture” rule
  – Mixture of listed HW and solid waste is a HW
• “Derived from” rule
  – Solid waste derived from treatment, storage
    or disposal of listed HW
• “Contained in” principle
  – Environmental media contaminated with
    hazardous waste


                                                   64
               How Do I Know?
•   MSDS or Product Data Sheets
•   Information from Suppliers, Manufacturers
•   Evaluation of listed active ingredients
•   Testing
•   Other knowledge
    – E.g., lead acid car batteries



                                            65
            Categorical Exclusions
• Household wastes. [40 CFR § 261.4(b)(1)]
• Small quantity generator (“SQG”) exemptions.
   – Very small generators are conditionally exempt. [40 CFR §
     261.5]
   – Intermediate generators are subject to reduced requirements.
• Recycling exemptions.
   – Some recycled wastes are conditionally exempt. [40 CFR §
     261.6(a)(3)]
   – Others are subject to different requirements. [40 CFR §
     261.6(a)(2)]
   – Precious metals exemption
• BE MINDFUL OF STATE VARIATIONS


                                                                    66
         Categorical Exemptions
• Empty container exemption. [40 CFR § 261.7]
   – Definition of “empty” depends on type of waste.
       • Most wastes: 1 inch or 3% (0.3% for large
         containers)
       • Acutely hazardous wastes: triple-rinse or
         equivalent.
   – California has different definitions.
• Samples exemptions. [40 CFR §§ 261.4(d)-(f)]
   – Covers samples sent for waste characterization or for
     treatability studies.
   – Requirements for sample size, handling, etc.

                                                        67
                 Universal Wastes
• A category of hazardous wastes that EPA has
  determined are appropriate for reduced management
  standards
• Federal Universal Waste Rule
   –   Batteries
   –   Certain Pesticides
   –   Mercury-containing equipment
   –   Bulbs (lamps)
• State adoption of Universal Waste Rule varies
   – May have fewer universal wastes
   – May have additional universal wastes
        • E-wastes
        • Aerosols

                                                      68
REQUIREMENTS FOR
HAZARDOUS WASTE
  MANAGEMENT



                   69
               OVERVIEW
• RCRA Subtitle C program regulates
  hazardous wastes from “cradle to grave.”
• Regulated entities:
  – Generators
  – Transporters
  – Treatment, Storage, and Disposal Facilities
• Requirements are calibrated to the role
  an entity plays with respect to the waste.


                                                  70
                 GENERATORS
• Who? The creator – the cradle

  – “Any person, by site, whose act or process
    produced hazardous waste identified or listed in
    [the RCRA regulations] or whose act first causes
    a hazardous waste to become subject to
    regulation.“ 40 CFR § 260.10.

  – There can be “co-generators”; jointly and
    severally liable.
     • e.g., manufacturer collecting materials in a tank
       (generator) which -- when removed -- would be
       a hazardous waste, and a contractor (co-
       generator) who performs the waste removal.
                                                           71
     Generator Requirements
• The requirements vary depending on the
  quantity of hazardous wastes that a facility
  generates and accumulates.
• 3 generator categories:
  – Conditionally exempt small quantity
    generators (CESQGs)
  – Small quantity generators (SQGs)
  – Large quantity generators (LQGs)

                                             72
Conditionally Exempt Small Quantity
   Generators (40 CFR § 261.5)
• Conditionally exempt
  – Id waste; storage limits; proper
    treatment/disposal
• Generate
  – <100 kg haz waste/month; or
  – <1 kg acutely haz waste/month
• Accumulate
  – <1000 kg haz waste
  – 1 kg acutely haz waste
  – 100 kg residue from a spill of acutely haz
    waste                                        73
                 CESQG
• Some states do not recognize or put
  additional conditions on exclusion
• May dispose of waste at an offsite TSDF
  that is permitted or licensed to manage
  municipal or solid industrial waste – not
  necessarily a Subtitle C TSDF
• No manifest
• Storage time unlimited
                                              74
     Small Quantity Generators
• Intermediate level of generator requirements
  applies
• Generate
   – 100-1000 kg haz waste/month
• Accumulate
   – <6000 kg haz waste
• Must send with manifest to Subtitle C TSDF
• 180 days accumulation period/can be
  extended to 270 days in some
  circumstances
• Accumulate up to 55 gallons in “satellite”
  accumulation with no time limit, if certain
  requirements are met.


                                                 75
     Large Quantity Generators
• Full generator requirements apply
• Generate
   – >1000 kg haz waste/month; or
   – >1 kg acutely haz waste/month
• Must send with manifest to Subtitle
  C TSDF
• 90 days accumulation period
• Accumulate up to 55 gallons in
  “satellite” accumulation with no time
  limit, if certain requirements are met.
                                            76
      Generator Requirements
• Determine if waste is hazardous;
• Obtain an Generator ID # so EPA and States are
  aware of activities;
• Accumulate and store the waste for only limited
  periods, meeting certain standards;
• Packaging and labeling requirements to prepare
  the waste for transport;
• RCRA "manifest" (i.e., tracking) system;
• Recordkeeping and reporting requirements
  (including some requirements under the land
  disposal restrictions program, at 40 CFR Part
  268); and
• Import/Export requirements.
                                               77
               Universal Wastes
• Streamlined hazardous waste
  management requirements for certain
  designated materials.
   –   Batteries
   –   Certain Pesticides
   –   Certain mercury-containing equipment
   –   Lamps
   –   Other wastes designated by States
• Regulations at 40 CFR Part 273
• Navigating State and federal law in this
  regard can be tricky
   – e.g., EPA position on transportation
     through a State that has not recognized a
     material as a universal waste               78
         Universal Waste (cont.)
• Provisions for
   – Handlers (differ according to small or large),
     transporters and destination facilities
• Reduces Certain Requirements During Waste
  Generation, Collection & Transport, examples:
   – Handler storage for 1 year (not just 90 days)
   – Label as universal (not hazardous) waste
   – Transportation using common carrier
   – No hazardous waste manifest (although large
     handlers must keep records)
   – Reduced training, emergency preparedness
     and contingency planning provisions.
   – Etc.
• Wastes Ultimately Must Be Recycled or
  Disposed in Accordance with RCRA
  Requirements
                                                      79
Hazardous Waste Manifest – Tool for
   Tracking Hazardous Wastes
• Generators
   – Complete for each shipment sent off-site, including name and
     signature of generator; type and quantity of wastes; name of
     transporter and TSDF.
• Transporters
   – Sign, transmit it to the TSDF with the waste, and retain a copy.
• TSDFs
   – Sign, return a copy to the generator.
• Reporting
   – Generators must notify EPA if do not receive a copy of the
     manifest back from the TSDF
   – TSDFs must notify EPA if the shipment does not correspond to
     the description on the manifest, or if they receive an
     unmanifested shipment of hazardous waste.

                                                                        80
Manifest Destiny




                   81
     Transporter Requirements

• “A person engaged in the offsite
  transportation of hazardous waste by air,
  rail, highway, or water.” 40 CFR §
  260.10 (emphasis added).
• Minimal requirements based on role:
  – obtain identification number;
  – compliance with the manifest system; and
  – requirements for hazardous waste
    discharges.
• Separately subject to DOT requirements.
                                               82
    Treatment, Storage & Disposal
          Facilities (TSDFs)
• Generator must send RCRA hazardous wastes
  and universal wastes to a permitted TSDF
• Generator should be mindful not to manage HW
  in a way that makes it subject to regulation as
  TSDF
  – Storage beyond time limits
  – Treatment— “so as to render such waste non-hazardous, or
    less hazardous; safer to transport, store, or dispose of; or
    amenable for recovery, amenable for storage, or reduced in
    volume.“ 40 CFR § 260.10.
  – Disposal—spilling, leaking, indefinite storage,
    abandonment
                                                                   83
              Enforcement
• Administrative order and penalties.
• Judicial civil action for injunction and
  penalties.
• Criminal Penalties for “knowing” violations
  – larger fines and imprisonment.
42 U.S.C. § 6928.



                                            84
   Enforcement – Civil Penalties
• Civil penalties: $25,000 / day / violation [adjusted
  for inflation $37,500 after January 12, 2009].
• EPA is required to consider “the seriousness of
  the violation and any good faith efforts to comply
  with applicable requirements.”
• EPA has adopted a detailed penalty policy.




                                                    85
Hazardous Waste



   Questions?




                  86
          Other Hot Topics
• SEC Conflict Minerals Rulemaking
• FTC Green Marketing Guidelines
• State Green Chemistry and Other
  Substance Restrictions




                                     87
 SEC Regulation of Conflict Minerals
            Disclosures
• Concern: Funds from mining of certain minerals providing
  financial support to conflict in Democratic Republic of Congo
• Goal: Use market power of downstream users to limit financing
  for conflict through supply chain transparency and disclosures
• New U.S. law: Section 1502 of the Dodd-Frank Act imposes
  reporting requirements on SEC-reporting companies that make
  products containing certain minerals, if they are necessary for
  functionality or production of products
   –   Columbite-tantalite: Tantulum
   –   Cassiterite: Tin
   –   Wolframite: Tungsten
   –   Gold
• Rulemaking: SEC issued proposed regulations in December 2010;
  expected to promulgate final rules by Fall 2011
                                                                    88
    FTC Regulation of Environmental
          Marketing Claims
• Proposed revisions to “Green Guides” for Environmental Marketing
  claims issued in October 2010; final action expected late 2011
• Key principle - Avoid unfair, misleading, and/or deceptive
  representations of environmental attributes
• Enhanced guidance on issues currently addressed in the Guides
   – General environmental benefit claims, e.g., “eco-friendly” and “green”
   – Environmental certifications, labels, and seals
   – Other specific claims, including
       • “Free-of” and “non-toxic” claims
       • Recyclable, compostable, degradable
• New guidance on emerging claims
   – Renewable materials
   – Renewable energy
   – Carbon offsets
• Heightened scrutiny and enforcement of environmental claims

                                                                              89
                Green Chemistry
• Chemical-specific bans
   – BPA has been a primary target
• Comprehensive regulatory schemes
   – California law serves as a model for other states’ laws
       • Phase 1: Prioritize chemicals and products based on risk
       • Phase 2: Assess alternatives
       • Phase 3: Regulatory response, ranging from no action, to
         disclosure, to outright ban
   – Maine recently banned BPA based on a regulatory scheme
     similar to California’s
• Other efforts at various stages of implementation in
  Connecticut, Washington, Minnesota, Vermont and
  Maryland
                                                                    90
       U.S. State-Level Materials Restrictions –
                  Total Enacted Laws

140


120


100


80


60


40


20


 0
      2001   2002     2003   2004   2005   2006   2007   2008   2009   2010/2011



                    Source: EIATRACK (http://www.eiatrack.org/p/416)               91
             Some Observations
• Realistic to Expect:
   – Better DOT harmonization with international transport rules.
   – Increased enforcement of hazardous waste and hazardous
     materials transportation regulations aimed at retailers
   – Significant penalties for RCRA violations, including
     recordkeeping
• Don’t Expect Any Time Soon:
   – Universal Waste Rule for pharmaceuticals (EPA proposal
     December 2008)
   – Universal Waste Rule for consumer products
• States will continue to be active on chemicals and
  product regulation but face severe budget challenges


                                                                    92
                  Thank you!
                   Elizabeth Richardson
                       202-789-6066
                 erichardson@bdlaw.com



 Beveridge & Diamond, PC is the largest and one of the
oldest firms in the nation that concentrates its practice in
    all aspects of environmental law and litigation.

                                                               93

								
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