Environmental Health and Safety Committee 4-30

1
Environmental Health and Safety Committee4-30

• Bret Bruhn, Merix Corporation
• February 2007

2
Legislative Regulatory Review

• TRI Program Issues
• RCRA Proposed Rules
• Merix F006 Delisting

3
TRI Program

• The TRI Program campaign to re-engineer and
  modernize itself continues, but may have hit a
  wall.
• This has been best evidenced by
• Stakeholder Dialogues
• Proposed burden reduction rules
• Form A clarification
• Proposed streamlining of reporting forms

4
TRI Program

• (2) rounds of Stakeholder Dialogues have been
  completed
• Round 1, Oct-Dec., 17, 2002
• Round 2, Nov. 03 Feb. 4, 2004
• Round 3, TBD
• The Dialogues resulted in a proposed Burden
  Reduction Rule
• EPA-HQ-TRI-2005-0073
• The comment period closed on Jan. 13, 2006 and
  the final rule was approved Dec 18

5
TRI Program

• Highlights of the rule
• Allows use of Form A for reporting certain PBTs
  (including lead lead compounds)
• Expands use of Form A for non-PBT chemicals
  provided lt 5,000 lbs are managed.
• Considering reducing the frequency of reporting
  in future burden reduction proposals
• Proposing eliminating requirements to report
  location information and redundant facility
  identifiers.

6
TRI Program

• Clarified that filing a Form A in lieu of a Form
  R would be treated as a data error, not a
  failure to file
• EPA has indicated their intent to automate
  Section 8 of Form R
• EPA is pressing for electronic filing

7
Congressional/Public Opposition

• Changes perceived as a rollback
• Opposition is top priority for OMB Watch
• Solis Pallone appropriations language amendment
  approved in the House of Representatives by a
  large majority, but no Appropriations bill was
  finalized
• Senate EPW hearing on TRI rollbacks Feb 6, 2007
• Solis now holds House Subcommitee Chairmanship
  plans to introduce bill

8
RCRA Program

• F006
• Exemption proposal withdrawn on May 10, 2006 with
  no notice
• IPC endeavoring to uncover why the rule was
  killed and by whom
• DSW
• Proposed changes to the Definition of Solid Waste
  (DSW)
• EPA planed to repropose a broader rule by Dec
  2006
• Action delayed pending completion of OMB review

9
Regulatory Background

• The F006 listing for electroplating sludge was
  part of the original 1980 RCRA standard
• While the F006 definition appears limited, a
  review of the background guidance reveals that it
  applies not only electroplating sludge, but
  also to etching, chemical milling, and certain
  associated cleaning processes
• Some facilities have attempted to apply the 40CFR
  261.2(e) exemption from the DSW for materials
  that are recycled to their F006 sludge. The
  exemption applied to
• 40 CFR 261.2(1)(i) materials used or reused in
  an industrial process, provided the materials are
  not being reclaimed, or
• 40 CFR 261.2(1)(ii) materials used as
  substitutes for commercially available products
  or
• Unfortunately, regulatory agencies have
  consistently held that smelter feed stocks are
  not products, and that the metals content in
  these materials is being reclaimed.
• Consequently, 40CFR 261, the DSW, has been a
  barrier to reclassification.

10
Regulatory Relief Opportunities

• In January 2003 we were excited to learn that EPA
  was considering issuing an exemption for select
  F006 sludges.
• We have reviewed Agency proposals, organized
  meetings with Agency officials, and forwarded
  comments to support inclusion of our industrys
  materials in an effective restructuring of F006
  rules.

11
Regulatory Options

• Historically, (2) options have existed to secure
  regulatory relief for F006 classified wastes
• Petition to exclude (de-list) 40 CFR 260.22
• Apply for a variance from classification as a
  solid waste 40 CFR 260.30(c) 260.31(c)
• De-listing
• Facility Specific
• Must show that the basis for listing no longer
  applies
• Must demonstrate that the waste does not display
  hazardous waste characteristics
• Variance
• Obtained from EPA or an Authorized State Program
• Seemingly easy, but quite difficult in practice
• Many states refuse to allow the use of an
  intermediate processor or broker for management
• Many states establish burdensome and unnecessary
  conditions

12
Justification for Regulatory Relief

• The basis for inclusion of PWB wastewater
  treatment sludge within the F006 listing no
  longer applies
• See 40CFR 261 Appendix VII
• Our manufacturing processes dont involve cadmium
  plating
• Chromic acid etch-back processes have been
  eliminated or replaced (no hexavalent chrome)
• Nickel use is extremely limited
• Complexed cyanide use is extremely limited and is
  typically segregated from general wastewater
  streams

13
Regulatory Relief Justification

• The industrys F006 materials pose no
  environmental hazards when appropriately
  land-filled or reclaimed
• A June 2002 EPA OSW evaluation of delisting
  (530-R-02-014) cites 51 successful delisting
  petitions for F006 sludge between 1980 and 1999
  http//www.epa.gov/epaoswer/hazwaste/id/delist/rep
  ort.pdf
• This represents 37.5 of all delistings. The
  largest single waste category amounting for an
  estimated 229,500 tons.
• Were aware of at least 6 additional recent
  examples of successful petitions for delisting
  from EPA and/or state issued variances
• This indicates a clear and growing body of
  evidence, supported by extensive analytical data,
  demonstrating that large volumes of F006
  classified materials are non-hazardous

14
RCRA Program / F006

• 40 CFR 268.40 Treatment Standards for F006 are

Cadmium 7440-43-9 0.19 mg/l TCLP
Chromium 7440-47-3 0.86 mg/l TCLP
Cyanide (Total) 57-12-5 590 mg/kg
Cyanide (Amenable) 57-12-5 30 mg/kg
Lead 7439-92-1 0.37 mg/l TCLP
Nickel 7440-02-0 5.0 mg/l TCLP
Silver 7440-22-4 0.30 mg/l TCLP
15
RCRA Program / DSW

• EPA released proposed rule changes to the
  definition of solid waste (DSW) on October 28,
  2003
• 68 Fed Register 61557
• For information access
• www.epa.gov/fedrgstr
• www.epa.gov/edocket/
• www.regulations.gov

16
RCRA Program / DSW

• Background
• Precipitated by EPA vs. ABR court decision
• Ruled that EPA had exceeded its authority in
  attempting to classify materials as hazardous
  wastes
• IPC Activities
• Analyzed the proposed rule
• Held discussions with Paul Borst EPA OSWER
  Economist
• Drafted and filed extensive comments

17
RCRA Program / DSW

• Issues/Comments
• Proposed rule is too narrow and could limit
  opportunities based on definitions of
• continuous process
• same generating industry (NAICS code)
• EPA overestimates the benefits of the proposed
  rule
• Would undercut recycling infrastructure
• Asked for comments on a Broader Rule based on
  four-point legitimacy criteria

18
RCRA Program / DSW

• Legitimacy Criteria
• Manage materials as a valuable commodity or
  analogous raw material
• Provides a useful contribution to the process or
  product
• Provides reasonable economic incentives
• TAR (toxics-along-for-the-ride)
• bright line approach (i.e. numeric limits)
• risk-based approach
• meet product or feedstock specifications

19
RCRA Program / DSW

• Legitimacy Criteria
• Manage as a valuable commodity or analogous raw
  material
• Provides a useful contribution to the process or
  product
• Provides reasonable economic incentives
• TAR (toxics-along-for-the-ride)
• bright line approach (i.e. numeric limits)
• risk-based approach
• meet product or feedstock specifications
• Storage
• One Time notification
• Recordkeeping, reporting, documentation,
  manifesting questions

20
RCRA Program / DSW

• Other potential issues
• Storage
• One Time notification
• Recordkeeping
• Reporting
• Documentation / manifesting
• Status
• Proposal may move forward in 2007
• Entrenched opposition within the Agency along
  with concerns from outside interest groups could
  impede progress

21
RCRA Program / DSW

• Current Timelines
• Future Actions

22
Pursuing the Delisting Option

• How do you start?
• With over 57 successful delistings already
  approved, plenty of good templates exist to
  choose from
• Search the Federal Register, pick one or two that
  you like, and contact the Agency for copies of
  the filings
• There may be small charges, but often the number
  of pages is considered de minimis
• You can probably limit your search to only the
  most relevant sections
• I recommend Tokusen and Bekaert
• The EPA RCRA Delisting Program Guidance Manual
  for the Petitioner, dated March 23, 2000 can also
  be helpful

23
Delisting Tips

• Typically Petitions are broken down into 2 -3
  parts
• The Petition. A fairly standard legal
  description of what is being requested and the
  rationale for submission
• A Sample and Analysis Plan. This includes a
  detailed description of the facility and plant
  processes. It describes waste treatment and
  generation, waste characteristic, identifies
  constituents of concern, lists what will be
  analyzed and how often, and how sampling will be
  performed
• The Quality Assurance Plan. This describes lab
  and analytical methods and procedures, how data
  will be analyzed and reported, etc.

24
Delisting Tips (cont.)

• Of the three sections the Sample and Analysis
  Plan is the most critical.
• Chapter 9 of the RCRA Waste Sampling Draft
  Technical Guidance SW-846 (EPA 530-R-99-015)
  provides 318 pages of dense, un-illuminating,
  reading. It describes accepted sampling and
  statistical methods.
• The method must be matched to the material
  characteristics and mode of generation.
• For instance
• is it a batch or continuous process,
• how much variation exists,
• is it deposited into totes, bags, hoppers, or
  roll-offs
• There are several methods that might be
  acceptable, but you may want to select one thats
  already been approved.

25
Delisting Tips (cont.)

• Once you have your documentation prepared, what
  do you do with it?
• It depends upon your location.
• In some locals youll have to file with the
  State, in others you may be able to file directly
  with the EPA Regional Office.
• While there are pros and cons to each option, you
  should be able to submit a copy to the Region for
  review in advance.
• They will screen it for completeness so that it
  wont be rejected on technical grounds.

26
Delisting Tips (cont.)

• Should I take advantage of the opportunity for
  review?
• Great question. How much time do you have and
  what are the consequences of an initial
  rejection?
• If you think you can get a quick response, why
  not? I recommend asking for a response date in
  writing.
• On the other hand, if theres no filing fee,
  starting the formal process typically starts an
  express timetable. Rejection, modification, and
  refilling, may take less time than the review.
• If youre prepared to commit to additional
  sampling and analysis, you should be able to
  greatly reduce the risk of rejection.

27
Delisting Tips (cont.)

• What will it cost?
• The two major components are staff time and lab
  support.
• Id estimate 1 month of staff time for
  preparation.
• 20-40 hours for actual sampling, preparation, and
  paperwork.
• Lab costs vary, but 5,000 6,000 would probably
  be reasonable.

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Keep in Touch with EHS

• Visit the Website at www.ipc.org under
• Legislative and Regulatory Affairs
• Subscribe to the EHS Update
• Join Compliance Net email forum
• Contact
• Fern Abrams, IPC Director of Environmental Policy
  
• [phone], fabrams_at_ipc.org