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"\ «i«
.X.
analysis of tme lagal basis for the State*a data of Jurlsdictior
ovar Indian land* la tha Attorney Gaaaral*s statement submitted
in the final Mthorisation package. To obtain BOA jurisdiction
•wo* India* lan«af tha State must ahov olear Congressional intant
to grant this authority. This Ut«rt oust be clearly atatad in a
federal atatute, a treaty with an Indian tribe, «r vaaa^iaueua
iagialativa aiatery. EPA will than avaluat* tha elala ai a utter
of Padaral Xadian iav. taeauaa thia ia a quaation of radaral law,
fcovwar, va will not nacaaaarily dafar to tha ftata Attocnay
Oaoaral'a opinion, aa w» ganarally do on qwaationa of intarprata-
tioaa of Stata law*
• /
Tha ailanca on this aubjact in ovr fadaral Pagiatar netieaa
naa baan oonfusing, twary HCHA authoritation aotiea for a fltata
that Ma an Indian raaanration auat atata tha atatua of theaa
Indian landa, i.a.» whathar IFA or tha ttata will oparata tha HCKA
program. If tha ttata haa aueeaasfully aaaartad aueh juriadietien,
tha aotiea auat ineluda tha baaia for aueh an aaaartion, i.a., tha
atatiita or traaty which givaa it elaar and onaabigtioua powar to
oparata tha K1A progra* on Indian landa.
Pactaion
•tataa may aaak authorisation for tha KCXA program on Indian
landa. IB ordar to obtain aueh authorisation, tha itata swat -
daaonatrata ita Jurisdiction in tha Attorney Ganaral*a atatavant
when applying for final authorisation. Tfea ftata oust show claar
and unambiguous Congressional delegation of authority over Indian
landa.
If a State does not request and obtain authorisstioa over
Indian land*, IPA will continue to adminiater tha KCXA program on
those landa. In keeping with the President'a Indian Policy, the
Agency will aaak to involve Tribal govarnmonta in tha administra-
tion of IPX's KC1A program* on Indian landa. This isaue will be
daalt with in further detail in tha forthcoming IPA Indian policy
and aubaequant guidances.
Every redaral Kagiater notice granting or denying K1A
authorisatioa tor a state w&lch has Indian landa within its
boundaries muat addreaa the atatua of those lamda, i.e., whether
tPA or tha State will oparata tha ItClA program on laelan lands.
cct Regional Counsels, tegions I-X
Nag tilvar
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
(
/•
OF
EXTERNAL AFFAIRS
INDIAN POLICY
U.S. ENVIRONMENTAL PROTECTION AGENCY
Attached are two documents which were adopted by the Environmental
Protection Agency (EPA) on November 8, 1984, relating to Indian Tribes
and Federal programs for protection of reservation environments:
1) EPA Policy for the Administration of Environmental Programs on
Indian Reservations.
2) Indian Policy Implementation Guidance.
These documents lay the groundwork for EPA management of the Agency's
regulatory programs on reservation lands. The cornerstones of the .Policy
and Guidance are the principles of Indian "self-government* and
"government-to-government" relations between the Federal Government and
Tribal Governments. Through Implementation of the Policy, the Agency
hopes to realize the long-range objective of Including Tribal Governments
as partners in decision-making* and program management on reservation lands,
much as we do with State Governments off-reservation.
In the beginning, implementation of the Policy will be slowly paced, as
the Agency will need to seek legislative authority In many areas and go
through a lengthy budget process before we can carry out the principles
of the Policy and directives of the Guidance In a comprehensive manner.
In the first year, however, we will begin to seek statutory changes, modify
regulations, and work on selected pilot programs. These pilot programs will
investigate problems associated with Tribal regulation of water and air
quality and the handling and disposal of hazardous materials on reservation
lands. The experience will help both EPA and the Tribes develop models for
dealing with these problems 1n the special legal and political context of
Indian reservations.
Environmental programming that will Involve Tribal Governments In the
Federal regulatory process on a significant scale is a new endeavor for EPA
and Tribes alike. To be successful, we will need cooperation and assistance
from all sectors and would welcome your on-going support.
If yog have questions or need further information, please contact
Leigh Price, National EPA Indian Coordinator, at (202) 382-5051.
Attachment
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11/8/84
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERV .TIONS
INTRODUCTION
^^•••••i^B^^BBBBpBBBBBBB^t^* <*
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments In natters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian
"self-government" and (2) that 1t will work directly with Tribal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously Issued general
statements of policy which recognize the Importance of Tribal Governments
1n regulatory activities that Impact reservation environments. It 1s the
purpose of this statement to consolidate and expand on existing EPA Indian
Policy statements 1n a manner consistent with the overall Federal position
In support of Tribal "self-government" and "government-to-government" rela-
tions between Federal and Tribal Governments, 'his statement sets fortn
the principles that will guide the Agency in de ng with Tri.,.1 Governments
and in responding to the problems of environmental management on American
Indian reservations in order to protect human health and the environment.
The Policy 1s Intended to provide guidance for EPA program managers in the
conduct of the Agency's congressionally mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies In the conduct of their respective responsibilities.
It 1s Important to emphasize that the Implementation of regulatory
programs which will realize these principles on Indian Reservations cannot
be accomplished Immediately. Effective Implementation will take careful
and conscientious work by EPA, the Tribes and many others. In many cases,
It will require changes In applicable statutory authorities and regulations.
It will-be necessary to proceed In a carefully phased way, to learn from
successes and failures, and to gain experience. Nonetheless, by beginning
work on the priority problems that exist now and continuing in the direction
established under th«se principles, over time we can significantly enhance
environmental quailv. on reservation lands.
POLICY
In carrying out our responsibilities on Indian reservations, the
fundamental objective of the Environmental Protection Agency is to protect
human health and the environment. The keynote of this effort will be to
give special consideration to Tribal interests in making Agency policy.
and to insure the close involvement of Tribal Governments in making
decisions and managing environmental programs affecting reservation Unas.
To meet this objective, the Agency will pursue the following principles:
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1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BASIS (THE "GOVERNMENT-TO-GOVERNMENT" RELATIONSHIP). RATHER
THAN AS SUBDIVISIONS Of OTHER GOVERNMENTS.
EPA recognizes- Tribal Governments as sovereign entitles with pMnary
authority and responsibility for the reservation populace. Accordingly,
EPA will work directly with Tribal Governments as the Independent authority
for reservation affairs, and not as political subdivisions of States or
other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANDARDS, MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING
PROGRAMS FOR RESERVATIONS. CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency
will view Tribal Governments as the appropriate non-Federal parties for
making decisions and carrying out program responsibilities affecting
Indian reservations, their environments, and the health and welfare of
the reservation populace. Just as EPA's deliberations and activities have
traditionally Involved the Interests and/or participation of State Govern-
ments. EPA will look directly to Tribal Governments to play this lead role
for matters affecting reservation environments.
3. THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will assist Interested Tribal Governmtnts 1n developing
programs and 1n preparing to assume regulatory and program management
responsibilities for reservation lands. Within the constraints of EPA's
authority and resources, this aid will Include providing grants and other
assistance to Tribes similar to that we provide State Governments. The
Agency will encourage Tribes to assume delegable responsibilities, (i.e.
responsibilities which the Agency has traditionally delegated to State
Governments for non-reservation lands) under terms similar to those
governing delegations to States.
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agency
will encourage the Tribe to participate 1n policy-making and to assume
appropriate lesser or partial roles in the Management of reservation
programs.
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4. THE AGENCY MILL TAKE APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AND
PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
GOVERNMENTS ON RESERVATION PROGRAMS.
A nuliter of .serious constraints and uncertainties 1n the language
of our statutes and regulations have 1'mlted our ability to work directly
and effectively with Tribal fiovermvnts on reservation problem. As
Impediments 1n our procedures, regulations or statutes are Identified
which limit our ability to work effectively with Tribes consistent with
this Policy, we will seek to remove those Impediments.
5. THE AGENCY. IN KEEPING WITH THE FEDERAL TRUST* RESPONSIBILITY, WILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA'S
ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS.
EPA recognizes that a trust responsibility derives from the his-
torical relatlo.: nip between the Federal Government and Indian Tribes
as expressed 1n certain treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental Interests of Indian Tribes when carrying out Its
responsibilities that may affect the reservations.
6. THE AGENCY WILL ENCOURAGE COOPERATION BETWEEN TRIBAL, STATE AND
LOCAL GOVERNMENTS TO RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN.
Sound environmental planning and management require the cooperation
and mutu? > consideration of neighboring governments, whether those
governments be neighboring States, Tribes, or local units of government.
Accordingly, EPA will encourage early communication and cooperation
among Tribes, States and local governments. This 1s not Intended to
lend Federal support to any one party to the jeopardy of the Interests
of the other. Rather, 1t recognizes that in the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best Interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATIONS TO ENLIST THEIR INTEREST AND
SUPPORT IN COOPERATIVE EFFORTS TO HELP TRIBES ASSUME ENVIRONMENTAL
PROGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will seek and promote cooperation between Federal agencies to
protect human health and the environment on reservations. We will
work with other agencies to clearly identify and delineate the roles.
responsibilities and relationships of our respective organizations and
to assist Tribes 1n developing and managing environmental programs for
reservation lands.
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.4.
8. THE AGENCY WILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS.
• •
In those cases where facilities owned or Mnaged by Tribal Governments
are not 1n compliance with Federal environmental statutes, EPA will work
cooperatively with Tribal leadership to develop means to achieve compliance,
providing technical support and consultation as necessary to enable Tribal
facilities to comply. Because of the distinct status of Indian Tribes and the
complex legal Issues Involved, direct EPA action through the judicial or
administrative process will be considered where the Agency determines, 1n Its
judgment, that: (1) a significant threat to humin health or the environment
exists, (2) such action_would reasonably be expected to achieve effective
results 1n a timely manner,* and (3) the Federal Government cannot utilize
other alternatives to correct the problem 1n a timely fashion.
In those cases where reservation facilities are clearly owned or managed
by private parties and there 1s no substantial Tribal Interest or control
Involved, the Agency will endeavor to act 1n cooperation with the affected
Tribal Government, but will otherwise respond to noncompHance by private
parties on Indian reservations as the Agency would to noncompllance by the
private sector elsewhere In the country. Where the Trite lias j substantial
proprietary Interest 1n, or control over, the privately owned or managed
facility, EPA will respond as described 1n the first paragraph above.
9. THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING
AND MANAGEMENT ACTIVITIES. INCLUDING ITS BUDGET, OPERATING GUIDANCE. LEGISLA-
TIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AMD ONGOING POLICY AND
REGULATION DEVELOPMENT PROCESSES.
It 1s a central purpose of this effort to ensure that the principles
of this Policy are effectively Institutionalized by Incorporating them Into
the Agency's ongoing and long-term planning and management processes. Agency
managers will Include specific programmatic actions designed to resolve prob-
lems on Indian reservations 1n the Agency's existing fiscal year and long-term
planning and management processes.
William D. Ruckelshaus
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MEMORANDUM
UNITED STATES ENV IPCNV£NTAL PPCTECTION AGENCY
WASHINGTON DC 20460
NOV 8 884
o»»>cc
SUBJECT: Indian Policy Implementation Guidance
FROM: Alvln L. Aim
Deputy Administrator
TO: Assistant Administrators
Regional Administrators
General Counsel
INTRODUCTION
The Administrator has signed the attached EPA Indian Policy. This
document sets forth the broad princir.es that will guide the Agency In
its relations with American Indian Tribal Governments and In the adminis-
trat- i of EPA programs on Indian reservation lands.
This Policy concerns more than one hundred federally-recognized
Tribal Governments and the environment of a geographical area that Is
larger ~han the combined area of the States of Maryland, New Jer;2y,
Connecticut, Massachusetts, Vermont, New Hampshire and Maine. It is an
important sector of the country, and constitutes the remaining lands of
America's first stewards of the environment, the American Indian Tribes.
The Policy places a strong emphas.s or. incorporating Tribal Govern-
ments into the operation and management of EPA's delegable programs.
This concept is based on the President's Federal Indian Policy published
on January 24, 1983 and the analysis, recommendations and Agency input
to the EPA Indian Work Group's Discussion Paper, Administration of
Environmental Programs on American Indian Reservations (July 1963).
TIMING AND SCOPE
Because of the Importance of the reservation environments, we must
begin immediately to incorporate the principles of EPA's Indian Policy
into the conduct of our everyday business. Our established operating
procedures 'Including long-range budgetary and operational planning acti-
vities) have not consistently focused on the proper role of Tribal Govern-
ments or the special legal and political problems of program management
on Indian lands. As a result, it will require a phased and sustained
effort over time to fully implement the principles of the Policy and to
take the steps outlined in this Guidance.
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Some Regions and Program Of flees -have already made individual starts
along the lines of the Policy and Guidance. I believe that a clear
Agency-wide policy will enable all programs to build on these efforts so
that, within the limits of our legal and budgetary constraints, the Agency
as a whole ctn make respectable progress 1n the next year.
As we begin the first year of operations under the Indian policy, we
cannot expect to solve ill of the problem we will fact 1n administering
program under the unique legal and political clrcuwtancti f^Mted I by
Indian reservations. We can, however, concentrate on specific priority
problem and Issues and proceed to address these tysttMtf cai ly and care-
fully 1n the first year. With this general eaphasls, i believe that -we
can make respectable progress and establish good precedents for working
effectively with Tribes. By working within a manageable scope and pace,
we can develop a coordinated base which can be expanded, and. as appropriate.
accelerated in the second and third years of operations under the Policy.
In addition to routine application of the Policy and this **<•"« J"
the conduct of our everyday business, the first year "^l"^""""? «
will emphasize concentrated work on a discrete number of rep £$entat^ *«
problems through cooperative programs or pilot Projects. In the Regions,
this effort should Include the Identification and Initiation •*«•*•"
priority Tribal projects. At Headquarters. It should Involve the "isolutl on
of the legal, policy and procedural problems which hamper our ability to
implement the kinds of projects Identified by the Regions.
The Indian Work Group (UG). which 1s chaired by the
Office of Federal Activities and composed of representatives of key regional
and headquarters offices, will facilitate and coordinate these «"orts.
The IWG will begin Immediately to help Identify the specific
which may be ripe for Implementation and the problems needing
in the first year.
Because we are starting in -mid-stream." the *«P\«~"^t1°nJ gjj"
will necessarily require some contribution of Personnel time and funds.
While no one program will be affected in a major /"hlon. *1~" al lAgency
programs are affected to some degree. I do not «f~5'X rotates7
projects on Indian Lands to cause any serious restriction In the *««
funding support or in their ability to function «"«£<;«*• * J""™
the flexibility of each Region and each program, we have jot set a target
for a location of FY 85 funds. I am confident, however, that Regions and
J0rogr.; o'ffUes can. through readjustment of V'^^TtpA'?™ cy
significant and credible progress in the implementation of EPA s Policy i«
the next year.
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• 3-
ACTION
Subject to these constraints. Regions and program managers should now
Initiate actions to implement the principles of the Indian Policy. The
tight categories set forth below will direct our Initial Implementation
activities. Farther guidance will be provided by the Assistant Adminis-
trator for Eiternal Affairs as experience Indicates a need for such guidance.
1. THE ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS WILL SERVE AS
LEAD AGENCY CLEARINGHOUSE AND COORDINATOR FOR INDIAN POLICY HATTERS.
This responsibility will Include coordinating the development of
appropriate Agency guidelines pertaining to Indian Issues, the
Implementation of the Indian Policy and this Guidance. In this effort
the Assistant Administrator for External Affairs will rely upon the
assistance and support of the EPA Indian Work Group.
Z. THE INDIAN WORK GROUP (IWG) HILL ASSIST AND SUPPORT THE ASSISTANT
ADMINISTRATOR FOR EXTERNAL AFFAIRS IN DEVELOPING AND RECOMMENDING DETAILED
GUIDANCE AS NEEDED ON INDIAN POLICY AND IMPLEMENTATION MATTERS. ASSISTANT
ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL SHOULD
DESIGNATE APPROPRIATE REPRESENTATIVES TO THE INDIAN WORK GROUP AND PROVIDE
THEM WITH ADEQUATE TIME AND RESOURCES NEEDED TO CARRY OUT THE IWG'S
RESPONSIBILITIES UNDER THE DIRECTION OF THE ASSISTANT ADMINISTRATOR FOR
EXTERNAL AFFAIRS.
The Indian Work Group. (IWG) chaired by the Director of the Office of
Federal Activities, will be an important entity for consolidating the
experience and advice of the key Assistant and Regional Administrators on
Indian Policy matters. It will perform the following functions: identify
specific legal, policy, and procedural Impediments to working directly
with Tribes on reservation problems; help develop appropriate guidance
for overcoming such impediments; recommend opportunities for Implementation
of appropriate programs or pilot projects; and perform other services in
support of Agency managers In implementing the Indian Policy.
The initial task of the IWG will be to develop recommendations and
suggest priorities for specific opportunities'for program Implementation
in the first year of operations under the Indian Policy and this Guidance.
To accomplish this, the General Counsel and each Regional and Assistant
Administrator must be actively represented on the IWG by a staff member
authorized to speak for his or her office. Further, the designated
representat1ve(s) should be afforded the time and resources. Including
travel, needed to provide significant staff support to the work of the
IWG.
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3. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD UNDERTAKE ACTIVE OUTREACH AND
LIAISON WITH TRIBES, PROVIDING ADEQUATE INFORMATION TO ALLOW THEM TO WORK
WITH US IN AN INFORMED WAY.
In the first.thirteen years of the Agency4! existence, we have worked
hard to establish working relationships with State Governments, providing
background Information and sufficient Interpretation and explanations to
enable them to work effectively with us In the development of cooperative
State programs under our various statutes. In a similar manner, EPA managers
should try to establish direct, face-to-face contact (preferably on the
reservation) with Tribal Government officials. This liaison Is essential to
understanding Tribal needs, perspectives and priorities. It will also foster
Tribal understanding of EPA's programs and procedures needed to deal effec-
tively with us.
4. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD ALLOCATE RESOURCES TO MEET
TRIBAL NEEDS, WITHIN THE CONSTRAINTS IMPOSED 8Y COMPETING PRIORITIES AND BY
OUR LEGAL AUTHORITY.
As Tribes move to assume responsibilities similar to those borne by EPA
or State Governments, an appropriate block of funds must be set aside to
support reservation abatement, control and compliance activities.
Because we want to begin to Implement the Indian Policy now, we cannot
wait until FY 87 to formally budget for programs on Indian lands. Accordingly,
for many programs, funds for initial Indian projects 1n FY 85 and FY
will need to come from resources currently planned for support to EPA-and
State-managed programs meeting similar objectives. As I stated earlier, we
do not expect to resolve all problems and address all environmental needs on
reservations Immediately. However, we can make a significant beginning
without unduly restricting our ability to fund ongoing programs.
I am asking each Assistant Administrator and Regional Administrator to
take measures within his or her discretion and authority to provide sufficient
staff time and grant funds to allow the Agency to Initiate projects on Indian
lands in FY 85 and FY 86 that will constitute a respectable step towards
Implementation of the Indian Policy.
5. ASSISTANT AND REGIONAL ADMINISTRATORS, WITH LEGAL SUPPORT PROVIDED BY THE
GENERAL COUNSEL, SHOULD ASSIST TRIBAL GOVERNMENTS IN PROGRAM DEVELOPMENT AS
THEY HAVE DONE FOR THE STATES.
The Ageocy has provided extensive staff work and assistance to State
Governments over the years In the development of environmental programs
and program management capabilities. This assistance has become a routine
aspect of Federal/State relations, enabling and expediting the States'
assumption of delegable programs under the various EPA statutes. This "front
end" Investment has promoted cooperation and Increased State Involvement
In the regulatory process.
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As the Agency begins to deal with Tribal Governments as partners in
reservation environmental programing, we will find a similar need for EPA
assistance. Nany Regional and program personnel have extensive experience
in working with States on program design and development; their expertise
should be used to assist Tribal Governments where needed.
6. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL
COUNSEL SHOULD TAKE ACTIVE STEPS TO ALLOW TRIBES TO PROVIDE INFORMED INPUT
INTO EPA'S DECISION-MAKING AND PROGRAM MANAGEMENT ACT!VITIES~"STOFTAFFECT
RESERVATION ENVIRONMENTS.
Where EPA manages Federal programs and/or makes decisions relating
directly or Indirectly to reservation environments, full consideration and
weight should be given to the public policies, priorities and concerns of the
affected Indian Tribes as expressed through their Tribal Governments. Agency
managers should make a special effort to Inform Tribes of EPA decisions and
activities which can affect their reservations and solicit their Input as we
have done with State Governments. Where necessary, this should Include provid-
ing the necessary information, explanation and/or briefings needed to foster
the informed participation of Tribal Governments In the Agency's standard-
setting and policy-making activities.
7. ASSISTANT AND REGIONAL ADMINISTRATORS SHOULD, TO THE .MAXIMUM FEASIBLE
EXTENT. INCORPORATE TRIBAL CONCERNS. NEEDS AND PREFERENCES INTO EPA'S POLICY
DECISIONS AND PROGRAM MANAGEMENT ACTIVITIES AFFECTING RESERVATIONS.
It has been EPA's practice to seek out and accord special consideration
to local interests and concerns, within the limits allowed by our statutory
mandate and nationally established criteria and standards. Consistent witn
the Federal and Agency policy to recognize Tribal Governments as the primary
voice for expressing public policy on reservations, EPA managers should, within
the limits of their flexibility, seek and utilize Tribal Input and preferences
in those situations where we have traditionally utilized State or local.Input.
We recognize that conflicts In policy, priority or preference may arise
between States and Tribes as it does between neighboring States. As In the
case of conflicts between neighboring States, EPA will encourage early communi-
cation and cooperation between Tribal and State Governments to avoid and resolve
such issues. This 1s not Intended to lend Federal support to any one party in
Its dealings with the other. Rather, It recognizes that In the field of environ-
mental regulation, problems are often shared and the principle of comity between
equals often serves the Interests of both.
Several of the environmental statutes Include a conflict resolution mechan-
ism which enables EPA to use its good offices to balance and resolve the con-
flict. These procedures can be applied to conflicts between Tribal and State
Governments that cannot otherwise be resolved. EPA can play a moderating role
by following the conflict resolution principles set by the statute, the Federal
trust responsibility and the EPA Indian Policy.
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t
8. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSEL
SHOULD WORK COOPERATIVELY WITH TRIBAL GOVERNMENTS TO ACHIEVE COMPLIANCE WITH
ENVIRONMENTAL STATUTES AND REGULATIONS ON INDIAN RESERVATIONS. CONSISTENT
WITH THE PRINCIPLE OF INDIAN SELF-GOVERNMENT.
The EPA India*-Policy recognizes Tribal Governments as the key
governments having responsibility for matters affecting the health and
welfare of the Tribe. Accordingly, where tribally owned or managed
facilities do not meet Federally established standards, the Agency will
endeavor to work with the Tribal leadership to enable the Tribe to
achieve compliance. Where reservation facilities are clearly owned or
•anaged by- private parties and there is no substantial Tribal interest
or control involved, the Agency will endeavor to act in cooperation with the
affected Tribal Government, but will otherwise respond to noncompliance by
private parties on Indian reservations as we do to noncompliance by the
private sector off-reservation.
Actions to enable and ensure compliance by Tribal facilities with
Federal statutes and regulations include providing consultation and
technical support to Tribal leaders and managers concerning the impacts
of noncompliance on Tribal health and the reservation environment
and steps needed to achieve such compliance. As appropriate. EPA may
also develop compliance agreements with Tribal Governments and work
cooperatively with other Federal agencies to assist Tribes in meeting
Federal standards.
Because of the unique legal and political status of Indian Tribes
in the Federal System, direct EPA actions against Tribal facilities
through the judicial or administrative process will be considered where
the Agency determines, in its judgment, that: (I) a significant threat to
human health or the environment exists, (2) such action would reasonably be
expected to achieve effective results in a timely manner, and (3) the Federal
Government cannot utilize other alternatives to correct the problem in a
timely fashion. Regional Administrators proposing to initiate such action
should first obtain concurrence from the Assistant Administrator for Enforce-
ment and Compliance Monitoring, who will act in consultation with the Assis-
tant Administrator for External Affairs and the General Counsel. In emergency
situations, the Regional Administrator may Issue emergency Temporary Restrain-
ing Orders, provided that the appropriate procedures set forth in Agency
delegations for such actions are followed.
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9. ASSISTANT ADMINISTRATORS, REGIONAL ADMINISTRATORS AND THE GENERAL COUNSE*.
SHOULD BEGIN TO FACTOR INDIAN POLICY GOALS INTO THEIR LONG-RANGE PLANNING AND
OGRAM MANAGEMENT ACTIVITIES, INCLUDING BUDGET, OPERATING GUIDANCE, MANAGEMENT
CCOUNTABILITY SYSTEMS AND PERFORMANCE STANDARDS.
In order to carry out the principles of the EPA Indian Policy and work
effectively with Tribal Governments on a long-range basis, 1t will be necessary
to institutionalize the Agency's policy goals in the management systems that
regulate Agency behavior.' Where we have systematically Incorporated State needs,
concerns and cooperative roles into our budget. Operating Guidance, Management
accountability systems and performance standards, we must now begin to factor the
Agency's Indian Policy goals into these same procedures and activities.
Agency managers should begin to consider Indian reservations and Tribes
when conducting routine planning and management activities or carrying out
special policy analysis activities. In addition, the IWG, operating under the
direction of the Assistant Administrator for External Affairs and with
assistance from the Assistant Administrator for Policy, Planning and Evaluation,
will identify and recommend specific steps to be taken to ensure that Indian
Policy goals are effectively Incorporated and institutionalized in the Agency's
procedures and operations.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C 204*0
1 0 1831
SUBJECT: EPA/State/Tribal Relations
TO: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Associate Administrators
staff Office Directors
Earlier this year Z shared with you my views concerning
EPA's Indian Policy, its implementation and its future direction.
Z would now like to further emphasize my commitment to the Policy
by endorsing the attached paper that was coordinated by Region
vril on EPA/State/Tribal Relations.
This paper was prepared to formalize tha Agency's role in*
strengthening tribal governments' management of environmental
programs on reservations. Tha paper notes that tha differences
between the interests of tribal and stata governments can be very
sensitive and sometimes extend well beyond the specific issues of
environmental protection. Zt reaffirms the general approach of
the Agency's Indian Policy and recommends the strengthening of
tribal capacity for environmental management. Z believe the
Agency should continue its present policy, making every effort to
support cooperation and coordination between tribal and stata
governments, while maintaining our commitment to environmental
quality.
I encourage you to promote tribal management of
environmental programs and work toward 'that goal.
Please distribute this document to states and tribes in your
region.
William X.
Attachment
cc. Headquarters Program Office Directors
Regional Office Directors
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FEDERAL, TRIBAL AND STATE JIOLES .4 THE PROTECTION
AND REGULATION OF RESERVATION ENVIRONMENTS
A Concept Paper
I. BACKGROUND
William Reilly, in hi irst %ar as EPA Administrator,
reaffirmed the 1984 EPA Inc *n Po. :y and its implicit promise to
protect the environment of Indian reservations as effectively as
the Agency protects ths environment of the rest of the country.
The EPA Indian Policy is premised on tribal self-determination,
the principle that has been set forth as federal policy by
Presic.tr.ts Hi-on, Reagan, and Bush. Self-determination is the
principle ret gnizing the primary role of tribal governments in
determining tne future course of reservation affairs. Applied u
the environmental arena in the EPA Indian Policy, this principle
looks to tribal governments to manage programs to protect human
health and the environment on Indian reservations.
II. TRIBAL. STATE AND FEDERAL EXPECTATIONS
The Agency is sensitive to the fact that tribal and state
governments have serious and legitimate interests in the
effective control and regulation of pollution sources on Indian
reservations. EPA shares these concerns and, moreover, has a
responsibility to Congress under the environmental statutes to
assure that effective and enforceable environmental programs are
developed to protect human health and the environment throughout
the nation, including Indian reservations.
Indian tribes, for vhom human welfare is tied closely to the
land, *«e protection of th« reservation environment as essential
to preservation of th« reservations themselves. Environmental
degradation is viewed as a form of further destruction of the
remaining reservation land base, and pollution prevention is
vieved as an act of tribal self-preservation that cannot be
entrusted to others. For these reasons, Indian tribes have
insisted that tribal governments be recognized as the proper
governmental entities to determine th« future quality of
reservation environments.
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Stat« governments, in turn, recognize that the environmental
Integrity of entire ecosystems cannot be regulated in isolation.
Pollution in the air and water, even the transportation of
hazardous materi-als in everyday commerce, is not restricted to
political boundaries. Accordingly, state governments claim a
vital interest in assuring that reservation pollution sources are
effectively regulated and, in many cases, express an interest in
managing reservation environmental programs themselves, at least
for non-Indian sources located on the reservations. In addition,
some state officials have voiced the concerns of various non-
Indians who live or conduct business within reservation
boundaries, many of whom believe that their environmental or
business interests would be better represented by state
government than by the tribal government.
Although the Agency hears these particular concerns
expressed most often through tribal and state representatives,
respectively, the Agency is aware that most of these concerns are
shared by both tribes and states. For example, tribal
governments are not alone in holding the viev that future
generations depend on today's leaders to manage the environment
wisely. Many state officials argue the same point with the same
level of conviction as tribal leaders. Conversely, tribal .
governments share with states the awareness that individual
components of whole ecosystems cannot be regulated without regard
to management of the other parts. Tribal governments have also
shown themselves to share the states' sensitivity to the concerns
and interests of the entire reservation populace, whether those
interests are the Interests of Indians or non-Indians. In the
Agency's view, tribes and states do not differ on the importance
of these goals, where they differ at all, they differ on the
means to achieve them.
EPA fully shares with tribes and states their concerns for
preservation of the reservation as a healthy and viable
environment, for rational and coordinated management of entire
ecosystems, and, thirdly, for environmental management based on
adequate-input both from regulated businesses and from the
populace whose health the system is designed to protect.
Moreover, the Agency believes that all of these Interests and
goals can be accommodated within the framework of federal Indian
policy goals and federal Indian law.
III. EPA POLICY
The EPA Indian Policy addresses the subject of state and
tribal roles within reservation boundaries as follows:
i) First, consistent with the President's policy, the
Agency supports the principle of Indian self-government:
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"In keeping with the principle of Indian self-government,
the Agency will view Tribal Governments as the appropriate
non-Federal parties for making decisions and carrying out
prograr ~es.ponsit lities affecting Indian reservations,
their c ironment , and the health and welfare of the
reservation populace. Just as EFA's deliberations and
activities have traditionally involved the interests and/or
participation of State Governments, EPA will look directly
to Tribal Governments to play this lead role for natters
affecting reservation environments."
2) Second, the Agency encourages cooperation between state,
tribal and local governments to resolve environmental issues
of mutual concern:
"Sound environmental planning and management require the
cooperation and mutual consideration of neighboring
governments, whether those governments be neighboring
States, Tribes or local units of government. Accordingly,
EPA will encourage early communication and cooperation among
Tribes, States and local governments. This is not intended
to lend Federal support to any one party to the jeopardy of
the interests of the other. Rather, it recognizes that in.
the field of environmental regulation, problems are often
shared and the principle of comity between equals often
serves the best interests of both."
IV. PRINCIPLES AMD PROCEDURES FOR EPA ACTIOK
EFA program managers will be guided by the following
principles and procedures regarding tribal and state roles in the
management of programs to protect reservation environments.
i . The Agency will follow the principles and procedures
set forth in the EPA Policy for the Administration of
Environmental Programs on Indian Reservations and the
accompanying Implementation Guidance, both signed on
November a, 1964.
2. The Agency will, in making decisions on program
authorization and other matters where jurisdiction over
reservation pollution sources is critical, apply federal law ••
found in the U.S. Constitution, applicable treaties, statutes »-s
federal Indian law. Consistent with the EPA Indian Policy and
the interests of administrative clarity, the Agency will view
Indian reservations as single administrative units for regulatcr,
purposes. Hence, as a general rule, the Agency will authorize *
tribal or state government to manage reservation programs only
where that government can demonstrate adequate jurisdiction over
pollution sources throughout the reservation. Where, however, i
tribe cannot demonstrate Jurisdiction over one or more
-------
reservation sources, the Agency will retain enforcement primacy
for those sources. Until EPA formally authorizes a state or
tribal program, the Agency retains full responsibility for
program management. Where EPA retains such responsibility, it
will carry out* its duties in accordance with the principles set
forth in the EPA Indian Policy.
3. Under both authorized and EPA-administered programs for
reservations, the Agency encourages cooperation between tribes
and states, acting in the spirit of neighbors with a mutual self-
interest in protecting the environmental and the health and
welfare of the reservation populace. Such cooperation can take
many forms, including notification, consultation, sharing of
technical information, expertise and personnel, and joint
tribal/state programming. While EPA will in all cases be guided
by federal Indian lav, EPA Indian Policy and its broad
responsibility to assure effective protection of human health and
the environment, the Agency believes that this framework allows
flexibility for a vide variety of cooperative agreements and
activities, provided that such arrangements are freely negotiated
and mutually agreeable to both tribe and state. The Agency vill
not act in such a manner as to force such agreements.
•
4. The Agency urges states to assist tribes in developing
environmental expertise and program capability. The Agency has
assisted in funding state environmental programs for two
decades, with the result that, today, state governments have a
very capable and sophisticated institutional infrastructure to
set and enforce environmental standards consistent with local
state needs and policies. As the country now moves to develop an
infrastructure of tribal institutions to achieve the same goals.
state governments can play a helpful and constructive role .in
helping to develop and support strong and effective tribal
institutions. The State of Wisconsin has worked vith the
Menominee Tribe to develop a joint tribal/state ftCRA program tftat
can serve as a model of mutually beneficial cooperation for other
states and tribes.
5. The Agency urges tribes to develop an Administrative
Procedures Act (APA) or other means for public notice and comment
in the tribal rule-making process. Many tribes now working with
EPA to develop environmental standards and regulatory programs
have already taken the initiative in establishing such technique*
for obtaining community input into tribal decision-making. Sue-.
tribes have enacted APAs and held public meetings to gather input
from both Indian and non-Indian residents of the reservation
prior to setting tribal environmental standards for their
reservations. The Agency generally requires states and tribes tt
provide for adequate public participation as a prerequisite for
approval of state or tribal environmental programs. The Agency
believes that public input into major regulatory decisions is «•
important part of modern regulatory governance that contribute*
-------
significantly to public acceptance and therefore the
effectiveness of regulatory p-ograms. The Agency encourages all
tribes to follow the example : those tribes that have already
enacted an APA/ -'
6. Where tribal and State governments, managing regulatory
programs for reservation and state areas, respectively, may
encounter transboundary problems arising from inconsistent
standards, policies, or enforcement activities, EPA encourages
the tribal and state governments to resolve their differences
through negotiation at the local level. EPA, in such cases, is
prepared to act as a moderator for such discussions, if
requested, where a statute such as the Clean Water Act
designates a conflict-resolution role for EPA in helping to
resolve tribal/state differences, EPA vill act in accordance with
the statute. Otherwise, EPA will respond generally to such
differences in the same manner that EPA responds to differences
between states.
v. conclusion
The Agency believes that where an ecosystem crosses
political boundaries, effective regulation calls for coordination
and cooperation among all governments having a regulatory role
impacting the ecosystem. Many differences among tribes and
states, like differences among states, are a natural outgrowth of
decentralized regulatory programs; these differences are best
resolved locally by tribes and states acting out of mutual
concern for the environment and the health of the affected
populace. EPA actions and decisions made in carrying out its
role and responsibilities will be consistent with federal law and
the EPA Indian Policy. Within this framework, the Agency is
convinced that the environmental quality of reservation lands can
be protected and enhanced to the benefit of all.
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WASTE MINIMIZATION/POLLUTION PREVENTION
AGENDA
Introduction to waste
minimization/pollution
prevention
RCRA enforcement
policy
Available resources
OVERHEAD #1
TITLE: Waste Minimization/Pollution Prevention
KEY POINTS:
* This presentation will cover an introduction to waste minimization and
pollution prevention, the RCRA enforcement policy and the inspector's role
in complying with this policy, as well as resources available to inspectors
and facilities. This presentation also includes an exercise that provides an
opportunity to demonstrate the inspector's new role and test the limits of the
new enforcement policy.
VIII-1
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WASTE MINIMIZATION
Waste Minimization « Source Reduction and Recycling
OVERHEAD #2
TITLE: Waste Minimization
KEY POINTS:
There has been considerable confusion over the terms waste minimization
and pollution prevention. What does waste minimization mean to you?
Now that we have heard our peers' definitions of waste minimization, I will
relate a definition offered in a draft Agency guidance that defines waste
minimization as:
"the reduction, to the extent feasible, of hazardous waste that is
generated prior to treatment, storage, or disposal of the waste. It is
defined as any source reduction or recycling activity that results in
either: (1) reduction of total volume of hazardous waste; (2) reduction
of toxicity of hazardous waste; or (3) both, as long as that reduction is
consistent with the general goal of minimizing present and future
threats to human health and the environment." (FR Vol. 54, No. Ill,
page 25056, 6/12/89)
For purposes of this Institute, we will refer to waste minimization as source
reduction and recycling.
VIII-2
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OVERHEAD #2
TITLE: Waste Minimization (continued)
KEY POINTS:
• Wastewater treatment, incineration, and other forms of treatment are often
considered to be waste minimization, but they are not.
• It is important to note that transferring waste from one medium to another
does not constitute minimizing waste. For example, incinerating hazardous
waste may result in a decrease in RCRA regulated waste, but an increase in
releases to the air. True minimization reflects reductions in one medium
without increases in others.
VIII-3
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POLLUTION PREVENTION
Pollution Prevention » Source Reduction
"=>
OVERHEAD #3
TITLE: Pollution Prevention
KEY POINTS:
What does the term pollution prevention mean to you?
Although the theory behind waste minimization and source reduction is the
same, the language prescribed by HSWA and the Pollution Prevention Act
defines the two terms differently.
Unlike the definition of waste minimization outlined in HSWA, the Pollution
Prevention Act of 1990 indicates that pollution prevention includes source
reduction but excludes most types of recycling. The Act defines source
reduction as any process that:
"reduces the amount of any hazardous substance, pollutant, or
contaminant entering any waste stream or otherwise released into the
environment prior to recycling, treatment, or disposal..."
EPA interpreted the language in the Pollution Prevention Act and defined
pollution prevention as source reduction in a May 28, 1992 memo from
Henry Habicht II, EPA Deputy Administrator.
VIII-4
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OVERHEAD #3
TITLE: Pollution Prevention (continued)
KEY POINTS:
• Both HSWA and the Pollution Prevention Act emphasize the importance of
taking a multi-media approach to reducing wastes. Inspectors can help
implement reduction across media by looking beyond RCRA waste streams
when conducting inspections. Inspectors should look at entire processes at
facilities, noting transfers of pollutants from one medium to another.
VIII-5
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WASTE MANAGEMENT HIERARCHY
Most Favorable
I
Source
Reduction
Recycling
Treatment
Least Favorable
OVERHEAD #4
TITLE: Waste Management Hierarchy
KEY POINTS:
• How would you define the Waste Management Hierarchy?
• The EPA first published a Waste Management Hierarchy in a 1976 policy
statement. The Hierarchy is intended to be a logical approach to managing
waste in order to minimize risks to public health and the environment. The
Hierarchy has evolved and may differ depending on the source.
• The Hierarchy presented in the viewgraph is based on the Pollution
Prevention Act of 1990, which states: "pollution should be prevented or
reduced at the source whenever feasible; pollution that cannot be prevented
should be recycled in an environmentally safe manner whenever feasible;
pollution that cannot be prevented or recycled should be treated in an
environmentally safe manner whenever feasible; and disposal or other
release into the environment should be employed only as a last resort and
should be conducted in an environmentally safe manner." (Public Law
101-508 Title 6, 104 STAT 1388, Section 6602(b), November 5,1990).
VIII-6
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OVERHEAD #4
TITLE: Waste Management Hierarchy (continued)
KEY POINTS:
• The Hierarchy encourages the reduction of wastes at the source and the
recycling of materials, rather than treating and/or disposing of them on land
or in air and water.
• Waste minimization refers to the top two tiers of the Waste Management
Hierarchy: source reduction and recycling. Pollution prevention refers only
to the top tier of the Hierarchy.
VIII-7
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WASTE MINIMIZATION/POLLUTION
PREVENTION TECHNIQUES
WASTE MINIMIZATION
J.
SOURCE REDUCTION
Process
Changes
1
RECYCLING
J
I
Material
Changes
Operational
Changes
Use and
Reuse
Reclamation
OVERHEAD #5
TITLE: Waste Minimization/Pollution Prevention Techniques
KEY POINTS:
• What do you see as the components of source reduction and recycling?
• Source reduction, the preferred option, can include product changes or source
controls.
• Product changes include substitution of a product, conserving a product, or
changing a product's composition.
• Source controls include:
— Process changes — for example, with respect to temperature, pressure,
or equipment;
— Material or input changes using non-hazardous materials or materials
that result in less waste;
— Changes in operating techniques — for example, improved
housekeeping and maintenance to reduce leaks and spills,
education/outreach programs, or changes in inventory management or
materials handling procedures.
VIII-8
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OVERHEAD #5
TITLE: Waste Minimization/Pollution Prevention Techniques (continued)
KEY POINTS:
• Recycling can include use and reuse and reclamation.
• RCRA regulations indicate that a material is used or reused if it is:
— Employed as an ingredient in an industrial process to make a product,
or
— Employed in a particular function or application as an effective
substitute for a commercial product. (40 CFR 261.1)
• A material is reclaimed if it is processed to recover a usable product, or if it
is regenerated. (40 CFR 261.1)
VIII-9
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FEDERAL LEGISLATIVE HISTORY
Federal wast* minimization/pollution prevention legislation
Includes:
• Hazardous and Solid Waste Amendments (HSWA)
* The Pollution Prevention Act of 1990
OVERHEAD #6
TITLE: Federal Legislative History
KEY POINTS:
• HSWA emphasized waste minimization as a national policy, stating that
"wherever feasible, the generation of hazardous waste is to be reduced or
eliminated as expeditiously as possible ...," and it established requirements
for generators and TSDFs.
• The Pollution Prevention Act of 1990 made source reduction a national
policy and required EPA to perform numerous functions, including training
enforcement personnel and inspectors, to promote source reduction. The Act
also prescribed additional reporting requirements for the SARA Title III
universe on their source reduction and recycling efforts. More specifically.
Title III requires reporting on manufacturing plants' releases of 320 toxic
chemicals into air, water, or soil. Facilities must estimate and report their
total releases each year. EPA compiles these reports on a computerized
database called the Toxic Release Inventory or TRI. How can you make use
ofTRIdata?
• Land ban has been the biggest HSWA driver of waste minimization, since
generators have suffered higher costs as a result of the ban.
VIIMO
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OVERHEAD #6
TITLE: Federal Legislative History (continued)
KEY POINTS:
• In addition, EPA has instituted national programs to achieve reductions in
pollution. One example of such a program is the 33/50 Program,
announced by EPA in 1991. This voluntary pollution prevention initiative
sets reduction goals for 17 high priority toxic chemicals. The goal of the
program is to reduce the total amount released into the environment and
transferred off site by 33 percent at the end of 1992 and by 50 percent at
the end of 1995, based on 1988 levels. This would mean a reduction from
1.4 billion pounds of the 17 targeted chemicals released and transferred off
she in 1988 to 200 million pounds released or transferred off site by 1995.
EPA seeks to accomplish these reductions through innovative pollution
prevention programs that go beyond regulatory requirements. Participants
in the program include, for example: B.F. Goodrich; AT&T; Dupont;
Illinois Toolworks; and 3M.
VIII-11
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HSWA WASTE MINIMIZATION REQUIREMENTS
• §3002(aX6>^generetors must report on waste
mjnlinizatlon efforts in biennial report
• waste
b) - generators must ce
Ion program is in place
- owners/operators must certtfy that a waste
ion program Is in place for any new permit
OVERHEAD #7
TITLE: HSWA Waste Minimization Requirements for Generators and TSDFs
KEY POINTS:
• HSWA sets forth three basic waste minimization requirements for generators
and TSDFs. They are:
— That hazardous waste generators submit waste minimization
information as pan of the biennial reports (§3002(a)(6));
— That generators certify on the manifest that they have a waste reduction
program in place (§3002(b));
— That, as a permit requirement, all TSDFs must certify at least annually
that they have a waste reduction system in place (§3005(h)).
• Using HSWA authority, EPA has promulgated regulations addressing these
issues in 40 CFR under Sections 262, 264, and 265.
VIII-12
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OVERHEAD #7
TITLE: HSWA Waste Minimization Requirements for Generators and TSDFs
(continued)
KEY POINTS:
• What kind of program can TSDFs undertake?
— Substitute one waste for newly-purchased material in treating other
waste
— Recycling instead of treatment
— Require generators to have waste minimization plan in place.
V1II-13
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EPA/STATES RELATIONSHIP
Historically^ ftaiaS'Kave Impiementedtechnical assistance
programs \
• TheW has been a recent move by statesto adopt waste
minimization requirements V
• In fact, many states now nave pollution prevention
legislation;
OVERHEAD #8
TITLE: EPA/States Relationship
KEY POINTS:
* Historically, almost all states established mostly non-regulatory programs to
encourage waste minimization. State programs have included:
— Technical assistance
— Education and outreach
— Economic benefit
— Waste exchange
— Research and development
— Limited regulatory requirements.
• Now states are becoming more prescriptive, although relatively few involve
or empower their enforcement program.
• Many RCRA-authorized states have adopted waste minimization
requirements. In fact, more than half of all U.S. states have enacted pollution
prevention legislation that typically requires RCRA generators or SARA
Title III facilities to develop pollution prevention plans. Facilities in these
states should have well documented waste minimization/pollution prevention
plans that can be reviewed by the inspector.
• What is the status of waste minimization requirements and pollution
prevention legislation in the states represented at the Institute?
VIII-14
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RCRA POLICY: CHECKING COMPLIANCE
RCRA POLJCY
Determine Compliance
--;- CtwckMmlteel ••:,:•/•;': >:::":
* Check Biennial Report *w! ;;
Annual Export Report '•••
:• Check pwwa wndWone met
,.:' enforcement aetttement*
dive limited, battc advice on:
- The Waete Minimisation Pl«n
- W»te minimization
epportunttiM
Encouraga w»«t«
minimintion/pellulion prwwntlon
- Identity available technical
aoicUnce
- Identify reaouree* and contact*
- Inform o( petant»l benefit*
OVERHEAD #9
TITLE: RCRA Policy: Checking Compliance
KEY POINTS:
• The RCRA policy is set forth in "The Role of RCRA Inspectors in Promoting
Waste Minimization" (OSWER Directive 9938.10), which was based on
existing Regional and state efforts and recommendations. It directs
inspectors to determine compliance. To do this, inspectors should:
— Check that each manifest is certified by an authorized person
— Check to see that a waste minimization plan is in place and is being
implemented
— Ensure that waste minimization language is included on the biennial
report or annual export report
— Confirm that any waste minimization conditions included in a permit or
resulting from enforcement action are being met.
VIII-15
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OVERVIEWS
TITLE: RCRA Policy: Checking Compliance (continued)
KEY POINTS:
Other compliance related initiatives include the following:
• EPA has developed guidance on developing supplemental environmental
projects (SEPs) and incorporating pollution prevention into enforcement
settlements. Pollution prevention requirements in SEPs or pollution
prevention settlement provisions include training, pollution prevention
assessments, and technology changes.
— Inspectors may be asked to review or provide waste minimization
information to support enforcement personnel in developing SEPs as
part of settlement negotiations.
— Inspectors will need to check compliance with SEP requirements.
• EPA is incorporating pollution prevention into TSDF permits as well as
permits in other programs:
— Inspectors should check compliance with RCRA permit requirements.
— Permits in other programs could also impact RCRA waste and waste
minimization efforts. Inspectors could benefit by reviewing these other
permits.
VIIM6
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RCRA POLICY: GIVING ADVICE
RCRA POUCY
Determine Compliance
Check Biennial Report and
Annual Export Report
Cheek permit condition* and
enforcement eettkmenU
Eneounge wictt
minimization/pollution prevention
- Identify «v«il*ble technical
auictanc*
Identify resource* and contact*
- Inform of potential benefit*
OVERHEAD #10
TITLE: RCRA Policy: Giving Advice
KEY POINTS:
• Inspectors may give limited, basic waste minimization/pollution prevention
advice to facilities. This advice may focus on the facility's waste
minimization plan/program and waste minimization opportunities.
• When giving advice:
— Present it in an informal manner
— Stress that it is not binding and not related to the facility's regulatory
compliance.
• Avoid giving advice that:
— Is technical
— Is capital-intensive
— Endorses a specific product
— Leads a facility to think that any changes made would bring the facility
into compliance.
VIII-17
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OVERVIEW #10
TITLE: RCRA Policy: Giving Advice (continued)
KEY POINTS:
* Proper examples of advice-giving related to waste minimization opportunities
include:
— "You may want to try either sweeping or blowing the sawdust and
residuals off the wood before treating it so you can lower die trash that
gets into the holding tank. That may lower the amount of waste sludge
you have to worry about."
— "If you let die wprkpiece hang a little longer over die tank, more of die
solution will drain back into it and you'll probably have less drag-out."
• Inappropriate advice would be:
— "Company X installed a Wammo Mark IV ink recycling unit to reuse
their waste inks. You should do the same. It might take care of some
of your regulatory problems and will save you a whole lot of money."
* Advice on the waste minimization program/plan can also be provided without
compromising your enforcement position by referring to die basic elements
in a waste minimization program as outlined in the nonbinding jRejJejai
Register Notice (Vol. 54, No. Ill, June 12, 1989). The Notice indicated that
discussion of the following should be included in a waste minimization plan:
— Top management support
— Characterization of waste
— Periodic waste minimization
— A cost allocation system
— Encouragement of technology transfer
— Program evaluation.
• Refer to "Role of Inspectors in Promoting Waste Minimization" for
guidelines for giving advice.
• During the exercise later in this presentation, we will explore the nature of
advice that is appropriate under the policy.
VIII-18
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RCRA POLICY: ENCOURAGING AND ASSISTING
WASTE MINIMIZATION/POLLUTION PREVENTION
RCRA POLICY
Determine Compliance
- Cheek Mentteet
• Check Biennial Report and
Annual Export Report
- Check permit condition* and
enforcement eetUententa
Give limited, batk advice on
- The Weete Mlntmbatlon Han
- Waste minlmtaation
opportunrtlee
« EftcoumgevoMte • •• •• •. •
ndntmtotkm/poileUon prevention
- Identify available teehntea!
.. . eaateteace -
. Identity nteoureaa and contact*
•— I'lfwOfttt^f pOtttmMl DWWflto ' ' '
O\7ERHEAD #11
TITLE: RCRA Policy: Encouraging and Assisting Waste Minimization/Pollution
Prevention
• Ways of encouraging waste minimization/pollution prevention include:
— Identifying for the facility waste minimization technical assistance
programs. These programs are listed by state in Pollution Prevention
Resources and Training Opportunities in 1992. Examples of these
technical assistance programs include:
•• Alaska's Waste Reduction Assistance Program and Small
Business Hazardous Material Management Project
•• Minnesota's Technical Assistance Program.
— Identifying resources to assist facilities attempting to integrate waste
minimization into their operations, including:
•• Book of pollution prevention training opportunities
•• Guidance and brochures
•* List of resources/contacts.
VIII-19
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OVERVIEW #11
TITLE: RCRA Policy: Encouraging and Assisting Waste Minimization/Pollution
Prevention (continued)
KEY POINTS:
* Some resources are displayed in the Library down the hall. To the extent that
they seem relevant, facilities can be referred to these documents. Please take
the time to flip through these resources during your breaks.
• You have been given in your Participant's Manual:
— A list of state waste minimization/pollution prevention laws
— A summary of the Pollution Prevention Act of 1990
— A resource list, which identifies pertinent written materials and points
of contact.
• As mentioned earlier, the Pollution Prevention Resources and Training
Opportunities 1992 identifies contacts in each state, university-affiliated
pollution prevention research centers and training programs, and
clearinghouses and associations that can assist facilities. This document can
be obtained by calling the Pollution Prevention Information Clearinghouse at
(703) 821^800,9 a.m. to 5 p.m.
• The Pollution Prevention Information Clearinghouse also contains technical,
policy, programmatic, legislative, and financial information concerning
source reduction and recycling efforts. It is accessible via telephone hotline,
computer, or mail. Call (713) 821^800 to reach the Technical Support
Office and (800) 424-9346 to reach the RCRA/Superfund Hotline. To access
this and additional information using your personal computer, call (703)
506-1025 to reach the Pollution Prevention Information Exchange System.
• Inspectors can also inform facilities of potential benefits of implementing
waste minimization activities. In certain states, facilities receive awards for
their pollution prevention work. Inherent incentives also exist for generators.
These include:
— Improved worker health and safety
— Reduced liability
— Improved public image
Improved public image •
Cost savings from reduced treatment and disposal costs, lower material I
handling/storage costs, reduced purchases of raw materials, etc.
VIIl-20
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SELF EDUCATION
OVERHEAD #12
TITLE: Self Education
KEY POINTS:
As we already know, an inspector should have a strong knowledge of the
industrial processes conducted at a facility prior to inspecting that type of
facility. Having an understanding of the process used at the facility will also
place the inspector in a better position to encourage the facility to implement
waste minimization activities.
An inspector may educate himself or herself regarding industrial processes by
reading relevant guidance such as The Paint Manufacturing Industry, or T^e
Commercial Painting Industry. These documents and other relevant
resources are included on your list of references in your Participant's Manual.
The inspector may also attend relevant seminars regarding topics such as the
metal processing industry. Inspectors can identify such seminars by calling
their Regional pollution prevention contact listed in Pollution Prevention
Resources and Training Opportunities in 1992. which is also included on
your reference list.
Inspectors will learn about industrial processes and waste minimization
opportunities while "on the job." Inspectors can apply "lessons learned"
during one inspection to other inspections of similar industrial processes.
The inspector should note, however, that without a knowledge of the
processes at a facility, he or she should not discuss the process or waste
minimization opportunities with the facility representatives.
VIII-21
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OVERHEAD #12
TITLE: Self Education (continued)
KEY POINTS:
* We will now conduct an exercise that requires us to apply the information we
have discussed during this module.
VIII-22
-------
What is the
waste
fnanajyenwnt
hierarchy?
OVERHEAD #13
TITLE: Summary
KEY POINTS:
Waste minimization is source reduction and recycling, while pollution
prevention focuses on source reduction.
The Waste Management Hierarchy is a means of managing waste to
minimize risks to public health and the environment. Source reduction is the
most preferable waste management technique. Recycling is the second most
preferable. Wastes should be treated only after source reduction and
recycling. Disposal is the last alternative.
VIII-23
-------
SUMMARY
What are the HSWA
waste minimization
requirements?
O\7ERHEAD #14
TITLE: Summary
KEY POINTS:
• The waste minimization portion of HSWA requires generators to:
— Certify on their waste manifests that they have a program in place to
reduce volume or quantity and toxiciry of waste
— Report on their waste minimization efforts in a Biennial Report and
Annual Export Report.
• HSWA requires TSDFs to certify that a waste minimization plan is in place
for any new permit issued.
VIII-24
-------
SUMMARY
What Is the
RCRA policy for
encouraging
waste minimization
OVERHEAD #15
TITLE: Summary
KEY POINTS:
• RCRA Policy directs inspectors to:
— Determine compliance:
•• Check manifests
•• Check Biennial Reports and Annual Export Reports
•• Check Permit Conditions and Enforcement Settlements.
— Give limited, basic advice.
— Inform generators of the benefits of waste minimization/pollution
prevention and available resources.
VIII-25
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FACILITY DESCRIPTION
FABRICATED METAL INDUSTRY
RUSTY'S METAL SHOP
Rusty's Metal Shop, which fabricates metal, is classified under Standard Industrial
Classification (SIC) 34. The facility supports many other industries, such as the automotive
and appliance industries, by producing metal parts and products. The numerous processes
performed at Rusty's Metal Shop can be grouped into three categories: machining, cleaning,
and finishing. Rusty's Metal Shop produces:
For Ford Motors
• Camshafts
• Crankshafts
• Gears
For General Electric
• Chassis for radio and television
Drill bits
• Sockets
Machining operations at Rusty's Metal Shop involve metal cutting processes. During
this process metal is sheared from the workpiece/product. Metalworking fluids are applied to
the workpiece and machining tool to facilitate cutting by controlling the temperature, washing
away metal pieces, lubricating the cutting process, providing a good finish, and inhibiting
(corrosion and) surface oxidation. These fluids commonly may include water emulsions of a
soluble oil or paste, or oils (mineral, sulphurized, or chlorinated).
Metal workpieces are then cleaned to prepare for finishing. There are primarily three
types of metal cleaners utilized by Rusty's Metal Shop: 1) both halogenated and
nonhalogenated organic solvents); 2) alkaline cleaners; 3) acid cleaners. Cleaners are normally
contained in large open tanks, with the parts to be cleaned mounted on racks or in perforated
horizontal barrels. The racks or barrels are then lowered into cleaning tanks for a few minutes,
then removed and lowered into other tanks, depending on the process being applied.
Finishing of fabricated metal products at Rusty's Metal Shop involves electroplating
and painting. At Rusty's Metal Shop, solvent-based paints are used. Depending on the size,
shape, complexity, and quantity of items to be painted, Rusty's Metal Shop applies the paint
using one of the following methods: dipping; flow coating; or spraying. At Rusty's Metal
Shop, metal parts are cleaned and then are dipped in a series of plating baths followed by a
series of rinses. Electroplating is achieved by passing an electric current through a solution
containing dissolved metal ions as well as the metal object to be plated. Ferrous and nonferrous
metal objects are typically electroplated with various metals (cadmium, chromium, copper,
iron, nickel, and zinc) as well as precious metals (gold and silver). Rinsewater is used at
Rusty's Metal Shop to wash off the drag-out from a workpiece after it is removed from a bath.
All wastewaters are treated on-site and discharged under a NPDES permit.
-------
LIST OF WASTES
FABRICATED METAL INDUSTRY
RUSTY'S METAL SHOP
The major wastes at Rusty's Metal Shop include:
* . Metal working fluids (oils) and other lubricating oils
* Scrap metal
* Spent organic solvents
• Waste water treatment sludge
• Rags contaminated with organic solvents and oils
• Clay absorbent contaminated with organic solvents, paints, and oils
• Sludge from solvent recovery still
• Waste paint
• Wastewater, which is treated on-site to recover metals, neutralized and discharged
under NPDES permit
• Empty paint containers
• Waste acid etchant.
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WASTE MINIMIZATION PLAN
FABRICATED METAL INDUSTRY
RUSTY'S METAL SHOP
Rusty's Metal Shop has encouraged waste reduction in its machining, cleaning, and
painting operations for a number of years to reduce the quantity and toxicity of its wastes,
conserve natural resources, and reduce costs. The program elements are described below.
CORPORATE POLICY STATEMENT OF SUPPORT FOR POLLUTION PREVENTION
As evidence of corporate support of the waste minimization program at Rusty's Metal
Shop, management dispersed a memo describing the corporate pollution prevention plan and
tactics for fulfilling the goals in the plan.
DESCRIPTION OF POLLUTION PREVENTION PLANNING TEAM
Management hired an environmental engineer to coordinate all waste management and
minimization efforts for the Facility. This waste minimization coordinator communicates
monthly with top management at Rusty's Metal Shop. The coordinator along with top
management plban next steps for waste minimization efforts at the Facility.
PLAN FOR COMMUNICATING SUCCESSES AND FAILURES OF POLLUTION
PREVENTION PROGRAMS WITHIN YOUR COMPANY
The coordinator will compile an annual report on waste minimization activities at
Rusty;'s Metal Shop and will ensure that the report is made available to all employees.
DESCRIPTION OF THE PROCESSES THAT PRODUCE, USE OR RELEASE
HAZARDOUS OR TOXIC MATERIALS (INCLUDING AMOUNTS AND TYPES OF
RELEASES)
Machining, cleaning, and painting operations at Rusty's Metal Shop produce hazardous
wastes and toxic materials. These wastes are noted on an attached list of wastes.
DESCRIPTION OF CURRENT AND PAST WASTE MINIMIZATION ACTIVITIES AT
RUSTY'S METAL SHOP
Primary Waste Minimization Activity
In 1991, Rusty's Metal Shop evaluated possible waste minimization activities,
including replacement of selected solvents with aqueous cleaners. This study indicated that
Rusty's Metal Shop could reduce its waste by making this replacement. The Facility
implemented this change on a pilot basis for two months at the close of the fiscal year. The
Facility saw a reduction from its average 120 tons of hazardous waste for a two month period
to 105 tons for the two month test period. The activity is being evaluated on other parameters,
such as process effectiveness, employee safety, and cost. Based on the findings, it may be
implemented within the first few months of the new fiscal year.
Characterization of Waste
Rusty's Metal Shop has implemented for a number of years a waste accounting system,
which tracks wastes produced at the facility from generation to final destination. The findings
from this accounting system are available for review.
-------
Periodic Waste Minimization Assessment
Periodic assessment is incorporated into the waste minimization practices at Rusty's
Metal Shop. These practices include tracking waste from generation to final destination to
identify source reduction opportunities and calculate the true cost of waste. For example,
Rusty's Metal Shop plans to select one waste stream for assessment and identify source
reduction opportunities.
Cost Allocation
Waste management costs are calculated for each step in the management process and
directed back to the department producing the waste.
Encourage Technology Transfer
Rusty's Metal Shop shares information with other fabricated metal industries through
participation in a Roundtable of Region A Waste Reduction programs. The Roundtable serves
as a forum in which generators can share information about successful and problematic waste
minimization approaches. Guest speakers from state and technical assistance programs, trade
associations, and consultants bring information on innovative technologies/approaches to the
forum.
Program Evaluation
The Waste Minimization Coordinator leads the annual evaluation of Rusty's Metal
Shop's waste minimization program. This evaluation is completed through a thorough tracking
of all wastes generated in the facility and through interviews with staff members from each area
of Rusty's Metal Shop. The Waste Minimization Coordinator submits an annual report on
waste minimization activities to top management at Rusty's Metal Shop.
-------
HAZARDOUS WASTE REPORT/WASTE MINIMIZATION
FABRICATED METAL INDUSTRY
RUSTY'S METAL SHOP
(The following information is an excerpt from Rusty's Metal Shop's Waste Minimization
Report, included in the Biennial Report.)
In 1991, Rusty's Metal Shop evaluated possible waste minimization activities,
in eluding replacement of selected solvents with aqueous cleaners. This study indicated that
Rusty's Metal Shop could reduce its waste by making this replacement. The Facility
implemented this change on a pilot basis for two months at the close of the fiscal year. The
Facility saw a reduction from its average 120 tons of hazardous waste for a two month period
to 105 tons for the two month test period. The activity is being evaluated on other parameters,
such as process effectiveness, employee safety, and cost. Based on the findings, it may be
implemented within the first few months of the new fiscal year.
-------
-------
STATE WASTE MINIMIZATION/POLLimON PREVENTION LAWS
STATUS OF LEGISLATION
STATE
ENACTED
PROPOSED
TECHNICAL
ASSIST. AVAIL.
AK
AR
AZ
CA
CO
CT
DE
FL
GA
HI
tL
IN
1A
KS
KY
LA
MA
MD
ME
MI
MN
MS
MO
MT
NC
ND
NE
NJ
NM
NY
NY
OH
OK
OR
PA
Rl
SC
SD
TN
TX
UT
VA
VT
WA
WI
WVA
WY
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
-
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Waste Minimization/Pollution Prevention
-------
POLLUTION PREVENTION ACT OF 1990
SUMMARY
TITLE
6601 Short Title
6602 Findings and Policy
6603 Definitions
6604 EPA Activities
6605 Grants to States for State
Technical Assistance
Programs
6606 Source Reduction
Clearinghouse
6607 Source Reduction and
Recycling Data Collection
6608 Biennial Reports
6609 Savings Provisions
6610 Authorization of
Appropriations
SUMMARY
The Pollution Prevention Act of 1990
Congress declares pollution prevention as national policy.
Defines terms used in subtitle including an explanation of
source reduction (which excludes recycling).
Mandates EPA to develop and implement a strategy to
promote source reduction. Grants EPA the authority to
establish an office to carry out the 12 Agency functions
specified in the strategy. The office shall be independent
of program offices, with authority to review and advise
such offices.
Requires the Agency to make matching grants (up to 50%)
to support state programs to promote the use of source
reduction techniques by businesses.
Requires the Agency to establish and make available to
the public a source reduction clearinghouse to compile
information including a computer data base which
contains information on management, technical and
operational approaches to source reduction.
Requires each owner or operator of a facility required to
file an annual toxic chemical release form under Section
313 of SARA to include in this filing a toxic chemical
source reduction and recycling report.
Requires EPA to submit biennially to Congress a report
describing the actions taken to implement source reduction
and the results of these actions
Prohibits the Act from modifying or interfering with the
implementation of Tide III of SARA or responsibilities or
liability under state or Federal law.
Provides $8 million to EPA for each of the fiscal years
1991, 1992, 1993, and $8 million for state grants
for each of the fiscal years 1991, 1992, and 1993.
Waste Minimization/Pollution Prevention
-------
WASTE MINIMIZATION/POLLUTION PREVENTION MODULE
THE ADVANCED RCRA INSPECTOR'S INSTITUTE
REFERENCES FOR INSPECTORS
EPA Guidance Documents
Facility Pollution Prevention Guide. EPA/600/R-62/088, May 1992. Describes how to
identify, assess, and implement opportunities for implementing pollution prevention. The
" " i is written for individuals responsible for implementing waste minimization programs at
;s. The guide also provides a list of references and information resources.
spection Manual. Appendix I: "Keeping Up With Current RCRA Regulatory
Concerns," pages I-7-I-9. Summarizes RCRA policy
RCRA Ins .
on incorporating pollution prevention
into RCRA inspections. Provides list of activities that an inspector should complete when
conducting a facility inspection to ensure that facilities are in compliance with HSWA
requirements. Also includes a waste minimization checklist and a list of resources to which the
inspector can refer.
EPA Policy Documents
"Interim EPA Policy on the Inclusion of Pollution Prevention and Recycling Provisions in
Enforcement Settlements," Memorandum from James M. Strock, Assistant Administrator,
Office of Enforcement, February 25, 1991.
"The Role of RCRA Inspectors in Waste Minimization," OSWER Directive 9938.10,
September 12, 1991. Describes activities RCRA inspectors should perform to ensure facilities
are in compliance with HSWA and to encourage pollution prevention.
"Waste Minimization Incentives: Request for Comments," Federal Register. Volume 55,
Number 194, pages 40881-40887, October 5, 1990. Responses to the comments are reflected
in the RCRA Waste Minimization Action Plan. EPA/530-R-92-020, May 1992.
Legislation
"The Pollution Prevention Act of 1990," Public Law 101-508 Title 6, 104 STAT. 1388,
November 5, 1990. Establishes a pollution prevention hierarchy as a national policy. The Act
describes the Agency's strategy for implementing pollution prevention activities and also
covers areas such as reporting requirements on source reduction and recycling activities.
EPA Resource/Outreach Documents
Pollution Prevention Resources and Training Opportunities in 1992. U.S. EPA, Office of
Pollution Prevention, EPA/560/8-92-002, January 1992. This document lists waste
minimization/pollution prevention state and Federal programs and contacts, as well as
guidance, fact sheets, and videos, university affiliated pollution prevention training and
research centers, clearinghouses, and associations.
Waste Minimization: Environmental Quality and Economic Benefits (Second Edition),
EPA/530-S W-89-049, 1989. A brief document that encourages generators to implement waste
minimization activities by providing them with examples of how waste minimization has been
cost effective for generators.
Waste Minimization/Pollution Prevention
-------
REFERENCES FOR FACILITIES
EPA Guidance Documents
Facility Pollution Prevention Guide. EPA/600/R-62/088, May 1992. Describes how to
identify, assess, and implement opportunities for implementing pollution prevention. The
guide is written for individuals responsible for implementing waste minimization programs at
facilities. The guide also provides a list of references and information resources.
Guides to Pollution Prevention. These provide information on EPA's waste minimization
assessment process, as well as detailed information on industrial processes and waste
minimization opportunities for the following industries:
The Pesticide Formulating Industry. EPA/625/7-90/004
The Paiqt Manufacturing Industry. EPA/625/7-90-005
The Fabricated Metal Products Industry. EPA/625/7-90AX)6
The Printed Circuit Board Manufacturing Industry. EPA/625/7-90AXJ7
The Commercial Printing Industry. EPA/625/7-90/008
Selected Hospital Waste Streams. EPA/625/7-90/009
Research and Educational Institutions. EPA/625/7-90/010
Waste Minimization in Metal Parts Cleaning. EPA/530-SW-89-049.
L \ Policy Documents
"Clarification of Types of Activities That May Be Used to Satisfy Waste Minimization
Certification," OSWER Directive 9560.14-85, August 5, 1985. States that Congress' intent
with regard to waste minimization requirements in HSWA is to encourage hazardous waste
generators to reduce the quantity and toxicity of waste generated. Indicates that generators who
recycle onsite or send their wastes offsite to be recycled are also satisfying waste minimization
requirements.
"Submission of Waste Minimization Information," OSWER Directive 9454.00-1 A, May 23,
1986. Directs Regions ID verify that generators are submitting to EPA or authorized states
waste minimization information required by Section 3002(a)(6) and 40 CFR 262.4 l(a)6 &7.
"Waste Minimization: Permit Certification and Joint Permitting," OSWER Directive
9560.1985 (01), September 11, 1985. Provides guidance for incorporating the Section
3005(h) waste minimization certification of HSWA into RCRA permits; clarifies joint
permitting under HSWA.
EPA Resource/Outreach Documents
Innovative Hazardous Waste Treatment Technologies: A Developer's Guide to Support
Services. EPA 540/2-91/012, June 1992. Provides descriptions and contacts at
institutions/organizations that can provide support to innovative technology developers.
Pollution Prevention: A Resource Book for Industry. June 1990. Describes for industry
benefits of pollution prevention, and provides success stories and references. Also includes
bibliography which contains potential case studies and resources.
Waste Minimization: Environmental Quality and Economic Benefits (Second Edition),
EPA/530-SW-89-049,1989. A brief document that encourages generators to implement waste
minimization activities by providing them with examples of how waste minimization has been
cost effective for generators.
Waste MinimizatJotvPolluiion Prevention
-------
CONTACTS
Office of Waste Programs Enforcement:
• Technical Assistance Training Branch - FTS-260-9320 or 202-260-9320
Policy and Regional Operations Branch - FTS-260-8115 or 202-260-8115.
Office of Solid Waste:
Waste Minimization Branch - FTS-308-8402 or 703-308-8402.
Office of Pollution Prevention and Toxics:
• Pollution Prevention Division - 202-260-3357.
The Pollution Prevention Information Clearinghouse (PPIC) contains technical, policy,
programmatic, legislative, and financial information concerning source reduction and recycling
in the United States and abroad. It can be reached via telephone hotlines, personal computer
(Pollution Prevention Information Exchange System (PIES)), or mail. Reach PPIC using the
following numbers or address:
RCRA/Superfund Hotline - 800-424-9346
PPIC Technical Support Office - 703-821 -4800
PIES-703-506-1025
Mailing Address - c/o SAIC
7600-A Leesburg Pike
Falls Church, Virginia 22043.
Waste minimization/pollution prevention state and Federal programs and contacts are listed in
Pollution Prevention Resources and Training Opportunities in 1992. This resource book also
lists guidance, fact sheets, and videos, university affiliated pollution prevention training and
research centers, and clearinghouses, and associations.
Waste Minimization/Pollution Prevention
-------
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-------
"GRAY AREAS" IN SOLID WASTE
Is It a Solid Waste?
How Do I Know?
Where Do I Turn?
OVERHEAD #1
TITLE: "Gray Areas" in Solid Waste
KEY POINTS:
• Determining whether a given material is a solid waste has enormous implications
for its management. If you determine that something is not a solid waste and,
therefore, can't be a hazardous waste, then its generation, transportation, and
final disposal are not governed by RCRA. If, on the other hand, you do
determine that the material is a solid waste, then there are very clear-cut
regulations that must be complied with. In this presentation, we will focus on
three major gray areas that you may frequently encounter in the field. These
three areas are: 1) sham recycling, 2) waste derived products, and 3) speculative
accumulation. For each of these areas, we will define the terms and describe
scenarios that fall within these three gray areas. There are others, such as
secondary material classification and point of generation issues, but in the
interest of time our discussions will focus primarily on the three mentioned.
• On inspections where it is difficult for you to determine if materials are or are not
solid waste, the determinations will have to be based on the facts of the particular
case. You may not be able to make a determination on the spot. You will have
to go back to the office and use all your resources (e.g.. Office of Solid Waste
and Emergency Response (OSWER) Directives, Regulatory Development
Branch memos, or RCRA Enforcement Division (RED) personnel.)
IX-1
-------
OVERHEAD #1
TITLE: "Gray Areas" in Solid Waste (continued)
KEY POINTS:
• During this presentation we will examine two different scenarios by engaging in
active debate. The debates will illustrate that, in many cases, the facts can
support different determinations regarding classification of materials.
• In addition, we will identify human and written resources that you can consult
when faced with these or other gray areas.
• i
IX-2
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ON'ERHEAD #2
TITLE: 40 CFR §261^ Table 1
KEY POINTS:
• Table I of §261.2 is the starting point for determining if a material is a solid
waste. It covers four different recycling schemes and seven different types of
secondary materials and identifies when they would be a solid waste. For
example, a characteristic sludge thai is being used for its energy value would be a
solid waste. If the characteristic sludge was being reclaimed, it would not be a
solid waste and therefore could not be a hazardous waste.
• There will be scenarios which won't fit into Table 1 easily and that aren't as
straightforward. Let's take a closer look at each of the three gray areas that you
will likely encounter at some point when conducting inspections. Some of these
situations you may have already encountered in the field.
• Another issue that will need to be resolved is whether reclamation occurs prior to
use or reuse as an ingredient, prior to use as an effective substitute for a chemical
commercial product, or prior to being returned to the original process that
generated the material. In all three scenarios, if the secondary material is
reclaimed prior to use or reuse, it would not meet the §261.2(e) exceptions from
being considered waste management.
IX-3
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SHAM RECYCLING
\
O\7ERHEAD#3
TITLE: Sham Recycling
KEY POINTS:
You may encounter facilities that "recycle" their materials in ways that avoid
waste management, but do not significantly recover material or energy value. In
fact, the real intent is to treat or dispose of their hazardous waste, not to recycle
it— hence, the term "sham recycling."
An example is the direct use of a hazardous waste to manufacture a consumer
product, such as sending a F-listed solvent, with a low Btu value, to a cement kiln
and identifying it as a necessary ingredient in the production of cement. The
hazardous constituents are in effect treated while they contribute nothing to the
final product. Using spent pickle liquor as a wastewater conditioner is a
legitimate use of a secondary material as a commercial product substitute.
As you know, facilities are required to maintain documentation when claiming
that their materials are not solid wastes (40 CFR §261.2(f)). But you may
encounter, or have already encountered, situations where the material is partially
used to make a product. For example, a F006 sludge may have certain properties
that make it useful in cement production, but it also contains very high
concentrations of hazardous constituents that contribute nothing to the product.
The gray area in this scenario stems from the need to determine if this is a
legitimate use of the material and can therefore be considered recycling.
-------
WASTE DERIVED PRODUCTS
If • material is being recycled according to §261.2(e)(Mii)
then it Is
NOT A SOUD WASTE
BUT...
If the material will be used In a manner constituting disposal
or to produce a fuel then It Is
A SOLID WASTE
BUT...
If the material that will be applied to the land or used to
produce a fuel Is a commercial chemical product that is
normally used in that way then H Is
NOT A SOLID WASTE
OVERHEAD #4
TITLE: Waste Derived Products
KEY POINTS:
• As we have noted, §261.2(e) describes recycling activities that are not defined as
waste management. That is, use or reuse as an ingredient, use or reuse as an
effective substitute for a commercial product, and returning the material to the
process where it was originally generated, without prior reclamation.
• There are four important exceptions: if the material is being used to produce a
product that will be applied to the land, or to produce a fuel, or is being
accumulated speculatively, or is inherently wastelike, it is a solid waste. The
first two exceptions encompass waste derived products. There is one further
important exception: Products that are made by incorporating chemical
commercial products are not a solid waste if they are either used in a manner
constituting disposal or used for energy recovery (if the chemical commercial
product is normally used in that way).
• You are probably most familiar with an off-specification commercial chemical
product that is being sent off-site for energy recovery. For example, an
off-specification jet fuel, hydrazine (U133), used as fuel for a boiler. Another
example is chlordane (U036), a listed commercial chemical product that is also a
pesticide. When chlordane is used as a pesticide, it is not a solid waste.
Therefore, if chlordane is applied to the ground as a pesticide and it subsequently
IX-5
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OVERHEADS
TITLE: Waste Derived Products
KEY POINTS:
is mixed with a solid waste, this mixture would not be a hazardous waste via the
mixture rule. Again, this is because the commercial chemical product is being
used as it normally would be used.
• It becomes very important to determine if the commercial chemical product was
being used as intended or if in fact, it was actually being disposed. Let's look at
another scenario. 2,4,5,-T, a pesticide, is mixed with water prior to being used.
If this unused mixture spills onto the ground before it is used, the soil would be
considered to contain the listed commercial chemical product (i.e., F027). If the
contamination resulted from the use of the 2,4,5,-T, then the soil would not be
considered to contain the listed hazardous waste. You should note that the soil
could still be a hazardous waste if it exhibited a characteristic of a hazardous
waste.
• Even though a material is a solid waste if it is applied to land, it will not be
regulated if it meets LDR treatment standards and has been physically
incorporated into a product. An example is a commercial fertilizer that contains
zinc flue dust (K061), provided that it is being produced for the general public's
use and provided that it is handled in a manner commensurate with the
management of zinc fertilizers (e.g., stored and transported properly).
IX-6
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SPECULATIVE ACCUMULATION
OVERHEAD #5
TITLE: Speculative Accumulation
KEY POINTS:
• Speculative accumulation occurs when materials are accumulated with the intent
of recycling, but there is a long time pehod before the recycling takes place.
Unless it can be shown that a certain amount of waste is recycled during a
calendar year, the material is a solid waste (and hence can be a hazardous waste).
The generator needs to show that the material has recycling potential, and that
there is a feasible way to recycle the material. The generator must also show that
there is a turnover of 75% of the accumulated material in a calendar year. The
gray area in this scenario results from the need to determine if a particular
material can be recycled and if there is a means of recycling it. For example, a
facility accumulates a sludge that is characteristically hazardous. The intent is to
recycle the sludge. If the nearest recycler is 500 miles away, the facility will
have to show that it is economically reasonable to send the sludge that far to be
recycled.
• We have just looked at the gray areas of sham recycling, waste derived products
and speculative accumulation. As stated earlier, there are other gray areas
related to determining if a material is a solid waste. Can you suggest other gray
areas you are aware of or have experienced?
IX-7
-------
RESOURCES FOR 'GRAY AREAS"
OVERHEAD #6
TITLE: Resources for Gray Areas
KEY POINTS:
• We've just briefly described some broad categories of gray areas that may
arise when determining if a material is a solid waste. As you can probably
imagine, there are as many scenarios as there are facilities and far too many
for there to be a definitive answer for every situation. The regulations are not
designed to address each and every situation or factor. That is why your
determination of whether a material is or is not a solid waste and how you get
to that decision is very important. For example, when determining whether
an activity is legitimate recycling vs. sham recycling, you will need to look at
the constituents in the secondary material that are being recycled and compare
them to the constituents found in the virgin ingredients. These factors and
others will be unique.
• To assist you in collecting information and expert opinions please refer to
your Participant's Manual. This is a compilation of both human resources and
written resources that can help you. Let's briefly walk through the handout.
IX-8
-------
OVERHEAD #6
TITLE: Resources for "Gray Areas" (continued)
KEY POINTS:
• The Resources for Gray Areas is divided into 2 sections—one for human
resources and one for written resources. This list of human resources is
further broken down into a section on Headquarter resources and a section on
Regional resources. You will notice that offices are listed, rather than specific
individuals. Individuals change positions but, for the most part, office
functions remain constant. Listed in the written resources section are
pertinent OSWER directives, regulatory development branch memos, RCRA
Hotline monthly report questions, Federal Registers, and other guidance
documents.
IX-9
-------
SOLID WASTE — YES OR NO?
OVERHEAD #7
TITLE: Solid Waste—Yes or No?
KEY POINTS:
• The cases you debated were based on real cases. We modified some of the facts
to make the debates more even-handed. Here are the actual determinations of the
two cases:
Case 1 - Inorganic Recycling
In February 1989, EPA sent Inorganic Recycling (IR) a Section 3007
information request and made a field visit to the site. In April 1989, EPA
informed IR that the company's operation revealed characteristic properties of a
hazardous waste treatment operation. The Agency required IR to conduct a test
burn and analyze the results to determine whether IR was legitimately recycling
hazardous wastes into a commercially usable endproduct. In October 1989, the
U.S. EPA and the Ohio EPA approved IR's Work Plan, which defined the test
procedure for the test burn. The testing was structured into two phases. The
U.S. EPA and the Ohio EPA concurred that data generated during the Phase I
and II tests would lead to a technical basis for either accepting or rejecting IR's
claims for legitimate recycling. In April 1990, the U.S. EPA determined that
IR's operation represents a valid means of reprocessing waste materials for the
purposes of endproduct production, provided that IR adheres to certain
conditions. One of the conditions requires IR to perform certain tests and keep
detailed records demonstrating the extent of their recycling activities.
IX-10
-------
OVERHEAD #7
TITLE: Solid Waste—Yes or No? (continued)
KEY POINTS:
Constituents to be sampled and tested for include benzene, vinyl chloride,
mercury, beryllium, total organic carbon, total cyanide, hexavalent chromium,
and total metal content. EPA's approach in setting these criteria was to divide
the hazardous constituents present in the F006 waste stream into two groups,
those that contribute to recycling, and those that do not. These tests and
associated records will allow IR to prove continued compliance with 40 CFR
§§261.2(e)and(f).
Case 2—American Brass Incorporated
ABI had been placing slag on the pile since at least 1984 with minimal removal.
Needless to say, ABI did not meet the 75% removal requirement under
speculative accumulation for quite a few years. Therefore, the pile was
considered a solid waste because of speculative accumulation, and a hazardous
waste because of the TC levels of lead. ABI further failed to properly manage
the baghouse dust. In March 1988, EPA filed a complaint against ABI. In June
1989, EPA, Alabama Department of Environmental Management (ADEM), and
ABI entered into a Consent Decree. ABI was required to close the slag pile by
December 31, 1989 pursuant to the terms of a closure plan attached to the
Consent Decree. In addition, ABI was prohibited from placing newly generated
slag on the land and baghouse dust was to be properly managed. It was not until
1991 when ADEM and EPA conducted a joint inspection of the facility noting
that the requirements of the closure plan had not been completed, that ABI began
serious removal of slag from the slag pile. At the end of 1991, ABI had removed
more than 75% of the slag pile that existed in the beginning of the calendar year.
Since they removed at least 75% of the slag pile at that time, the pile ceased to be
a solid waste and, therefore, a hazardous waste at the beginning of 1991. ABI
had totally lifted the slag pile by February 29,1992 as per the modification to
Consent Decree.
• As revealed by the debates, general guidance cannot adequately clarify gray
areas. As you have all experienced, you have to make judgment calls in many, if
not most, situations. These decisions should be based on the facts of a particular
case, and should not be done quickly. Take time to fully examine all the facts.
• Additionally, there are human and written resources that are available to help you
in resolving these issues. A comprehensive list of resources is available in your
Participant's Manual. Use these resources.
IX-11
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-------
RESOURCES FOR "GRAY AREAS" IN SOLID WASTE
WRITTEN RESOURCES
FEDERAL REGISTERS
Date Citation Subject
April 11,1985 50 FR 14216 Technical Corrections to Solid Waste
Definitions
Technical corrections to the January 4, 1985 rule defining solid waste.
Indicates that an unlisted commercial chemical product (e.g., unused oil)
would be regulated as a listed Chemical Commercial Product.
January 4,1985 50 FR 614 Definition of Solid Waste
Modifications to definition of solid waste finalized and recycling regulations
promulgated. Discusses the entire basis for the definition of solid waste.
Further discusses the types of secondary materials and how the method of
recycling will determine if the material is a solid waste.
April 4,1983 48 FR 14472 Proposed rule on Definition of Solid Waste
Proposed regulations for determining which materials are hazardous wastes when
recycled.
OSWER DIRECTIVES
Date From/To Subject
April 29, 1989 Lowrance/Regions I-X Legitimate vs. sham recycling
OSWER Directive 9441.1989(19)
OTHER DOCUMENTS
RCRA Implementation Study Update: The Definition of Solid Waste: July 1992,
EPA/530-R-92-021
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HOTLINE MONTHLY REPORT QUESTIONS
Date
May 1992
February 1992
August 1991
May 1990
March 1990
October 1987
Subject
Secondary Material Used as Effective
Substitutes for Commercial Products
Speculative Accumulation Calculation
Off-Specification Circuit Printing Board
Spent Material; Mercury Spilled from a
Thermometer
By-Product vs. Scrap Metal
Off-Spec Fuel Burned for Energy Recovery
HUMAN RESOURCES
REGIONS
Region 1
Office
Waste Management Division
Regional Counsel
Region 2
Office
Hazardous and Solid Waste Programs Branch
Hazardous Waste Compliance Branch
Regional Counsel - Air, Waste, and Toxics Branch
Phone Number
(617) 573-5700
(617) 565-3451
Phone Number
(212) 264-9469
(212) 264 8356
(212) 264-5340
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HUMAN RESOURCES (continued)
Region 3
Office
RCRA Programs Branch
RCRA Enforcement and UST Branch
Regional Counsel
Region 4
Office
RCRA and Federal Facilities Branch
Waste Programs Branch
Regional Counsel - Hazardous Waste Law Branch
Phone Number
(215)597-0980
(215) 597-2809
(215) 597-9822
Phone Number
(404) 347-3016
(404) 347-5059
(404) 347-2641
Region 5
Office
RCRA Office
RCRA Enforcement Branch
RCRA Program Management Branch
Regional Counsel- Solid Waste and Emergency
Response Branch
Region 6
Office
RCRA Enforcement Branch
RCRA Programs Branch
Regional Counsel
Phone Number
(312) 886-7437
(312) 886-4434
(312) 353-8512
(312) 886-0556
PJione Number
(214) 655-6745
(214)655-6655
(214) 665-2110
-------
HUMAN RESOURCES (continued)
Region 7
Office
RCRA Branch
Regional Counsel - Hazardous Waste/RCRA
Branch
Phone JNumber
(913) 551-7051
(913) 551-7010
Region 8
Office
RCRA Implementation Branch
RCRA Management Branch
Regional Counsel
Phone Number
(303) 293-1663
(303) 293-1513
(303) 293-7550
Region 9
Office
Waste Compliance Branch
Regional Counsel
Phone Number
(415) 744-2120
(415) 744-1364
Region 10
ice
Waste Management Branch
Hazardous Waste Policy Branch
Regional Counsel - Hazardous Waste Branch
Phone Number
(206) 553-2782
(206) 553-2871
(206) 553-6695
RCRA/SUPERFUND/OUST HOTLINE
(800) 424-9346
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Debate Preparation and Conduct Rules
1. Select a lead debater and a note taker. (The lead debater may choose to be the
note taker, too. This decision is up to each team).
2. The Red and Orange teams each need to select one member to summarize
their respective enforcement cases at the time of the debates. If you are one of
these teams, select one member to present a brief summary (not to exceed 1
minute) of your assigned enforcement case. This person can also be the lead
debater and/or the note taker. The purpose of this summary is to introduce
the specific gray area scenario of the given debate to the rest of the participants.
3. Read the details of the case and the background materials. Discuss the case and
develop your team strategy for the debate.
4. Review with the lead debater the points to raise during the debate. The lead
debater will have 21/2 minutes to present your team's position and identify
supporting materials/references.
5. Adhere to the time frames listed below and on the flipchart at the front of the
room. Time is limited, and each team will need to adhere to the following
time constraints:
— Review of case and background materials, and discussion of team
approach and points you plan to make during the debate (30-35
minutes)
— Brief summary of the case and conduct of the debate (3 1/2 minutes per
team)
6. Send the lead debater from your team to the front of the room when the
instructor calls on your team to compete in a debate with the opposing team.
If you are the Red or Orange team, also send the member responsible for
introducing the case in question to the rest of the participants.
-------
-------
DETAILED INSTRUCTIONS PACKET
FOR NATIONAL BRASS CASE STUDY
-------
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NATIONAL BRASS INCORPORATED
National Brass Incorporated (NBI) is an unpermitted, secondary brass smelter with a
facility located in Christmas Tree, Alabama. NBI smelts scrap metal from dealers
and industrial sources to reclaim brass and produce brass ingots. The smelting
process produces three additional materials: ambient air baghouse dust, zinc oxide
baghouse dust, and brass furnace slag ("slag"). The baghouse dust from flue gases,
mainly consisting of zinc oxide, is bagged and sold for reclamation. The baghouse
dust from charging gases is fed back into the furnace. A portion of the slag is
reprocessed in a ball mill producing a ball mill residue which may be sold as a
fertilizer. The slag exhibits a hazardous characteristic because of its lead content.
The slag does contain recoverable amounts of metals and may also be further
processed to produce another saleable product.
On December 17,1992, you visit the facility. NBI claims that their slag would be
classified as a by-product exhibiting a characteristic and when sent for reclamation
would not be a solid waste per 40 CFR §261.2{c) Table 1. NBI's records show that
they began accumulating the slag on the ground at its facility in June 1990. A closer
review of the facilities records show that 500 Ibs. of slag were accumulated from
June-December 1990. From January to May 1991, an additional 1000 Ibs. were
accumulated and on May 17,1991,1450 Ibs were sent off-site for recycling. On
December 31,1991, they had 400 Ibs on-site. During your visit NBI has 500 Ibs of slag
on-site. The facility that they usually send the slag to for recycling had a fire in
September and has not yet gone back into production.
Is the slag a solid waste?
-------
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BACKGROUND MATERIALS
-------
-------
fadotat Rafiatar / Val ». No. 3 / Friday, fuiuaryj. 1965 / Rule* and Rtguiationa
ibMqitanily uaad aa faadalock, Th
Cation It a aubaat of Iha ona Jual
acribad ao thai lhaaa naiariali
itaa unfU radalnad Thair lalar/
•adatock doaa not allar thia refill
Afancy acknowladfas. bowof ar.
tha^ita diacuaaion of tha racyclinj of
aulfuric acid in Iha propoall
ibla (footnota 30) craatad font
ion. Tha Afancy atill do* not
think Mia procaaa tovolvta ncjbmattoa,
To wlilMaala e»y uncartainty.
_ aadiAf|3eu(a)oftha
rcfvJatbea to atate that apanf aulfuric
add thai to raeydad to prodJea vlnto
aulfwfe Idd la not conaldaaM to bal
(Saa SactfoB L£alow.)
Products.
Propoaad a
to; ;
from" rulijlp IndJcata
prodocta najalmad froi
art not lub
rtftjaUocu
f if < nan ted
Slmilariy.
auitibla for
to bi raflaad to
not wattaa.
fairly avMant
cbalkaavd by an;
'a caution.
(WMLthat
ipplj to facia
ordinarily con*
proclvcta. tuefa
•tabitiud wai
doaii not appi;
rtdnmatioo
race vary or
acti'riria»
proiltiona
ualng basa;
in fuala or
inibuioa,
and bl«
that
ifytaf
(tha "darfvad
I ooooiardal
asardoua
waalaa. and ao
tothalCRASubtiUaC
4|FRll4aa.Thua.
vtnta fra not waataa.
tula that an
or that only hava
ablt an product*.
ladawnt aialaa a
aad WM not
tar.
aawadidtolha
pla doaa not
tariala that an not
to ba conihardal
ta-watan or
provlaion aiao
output of tha
foraaarfy
aead OB ha land. Thaaa
controDadby Iha
tha dtftnJftm daattaf with
oua waitaa i> InfradiaatB •
Par
esant aoivad) to baatod "
with oil to aal aa a bal
ivtdtolUljiOMbjactb
Tna pAndpla aiao doaa i
wrajtarafbai hava baao i
minunauy. or to tutarlaJa I
ba«A dJkrtiaUy radaiBad but I
1 furthar bafon i
, (Saa 44 FK at 14
For Ala laal aituBUoo~whara i
art tenialiy radaimad but mualba
racl^mad furthar untU racovtryl
conplctad—wa an proTidinf a '
l»durt for aitaatfoaa to which)
: aJly radaimad matarial la
^ooal prooaaaiof barbra M to i
. ThJ« varUaca to axpltl
P. Sactton ai^eK<): Waitta That An
Aecumulatad Spaoilattvaly
I. Grouping of Sffoihtivf
Accumulation ond Oy»rocetimuhtioH
fnnfioat. EPA propoaad that toy
aacondaiy autarial [U.. apaat autariaia.
•aludfat, or by-prediieta) baiaf
accuaitlalad apacolativaly wan aottd
waataa. Wa aald thaaa autariaia an
.tfrtly- whan Ifaay
^u.^..i>i.j - - * -
an oatof atond with a bfitiauto
axpacUtioa of avantual ncydlof bat
hava navar boaa ncydad i
a **rafulatory framawork" to anaun that
"haiardoua waita* (an not) dlapoaad of
In panda or lofoona or oa tha ground In
a aiannar that naulU in aubatandal and
aonatunaa Inavaraibla poUutlon of tha
anviroomant- (Id.) TWi aaandatad
"ngwlatory approach" would
-allnlnalfa) tha laal nraainlnf loephola
to anvtronaMntat law ..." (Id)
Although aocuffluladni haurdow
aaeondary Butartab an ordinarily .
rofardad at aolld aad hatardev waalaa,
t»U« hi MI hnwfebiy tfaa caaa. Aa notad
faaaibly ba ncydad Saa 41 PI 14am
Tba Afaocy furtfaar propoaad that
aacoodary aularlala dial arcaanJata at
a alto for ovar a yaar wdhout 71 paroaol
bainf ncydad an aolld waataa. 41 PR
14490. Tha aaua of thia provtatott waa
thai aO aacoodary autarlala that
ovtraccumolata bafon bataf ncydad
an aolld waataa. aroa tf thay an fotof
to ba ncydad to waya that ordtoaiay oo
net conattruta waata auaayaaMoi
Wa hava eoaAiaad thaaa eooeapta to
a aiaaia provtotoa to Iha final daflaJttoa.
Wa hava drafted tha provtaloB ao that
aacoodary outarlaia an conaidand to
baaoUd waataa tfthay an oecaanUattat
bafon batof ncydad Kowovar. OBI
natariah wffl aot ba oonriaatad aoBd
waataa (oDdartUapnviaioa of 0at •
daflaltlon] tf th* panoa aoooaraiattof
can ahow. on nouaat, that a) tha>
matariala hava kaowa neycQaf *
potantfat and can raaafbry ba locydod
and b) duriaa a ona-yaar
parted that tha amount o!
ncydad or traaifamd to a
aita for naydtoi, to at baaf»
of tha •• - - -
of Part 1 aad Saettoo H of Put 2)1 thaaa
atatariala would aot ba waataa tf Ifaay
can ba ncydad to eartain daaifnatad
waya. and tf (hay an not aeeumulalad
apoculaavaty bafon bolng racycUd.
Thaaa ataiadoaa npnaaol axeapttona to
Iha faaaral atatotory prohibition aaaiaat
uaraftUlad waata auuufaamt
•Tha fiaal rala Ihua atataa tba aaoaraJ
priadpla that hatardoua aaeoadary
aaatartala aeoiuMiladaf bafon ncydinf
an waataa aalaaa tha pwaoa
aceuBnlatlni at abb to ahow OB nquaat
that ha b todood neydlnj mffldaai
vohmaa of tha aaatarlala oa an anouat
baato, TW aroviaioai la aot aubatanttvaly
dlflanat from tba propoaad rula oo)
aspndoy,
dkatduataaa
laaaatalatatatory '
tta bordafi of ahowlng
ttaanbaiBai
thatauffldaeii
ncydad to OB dw i
tha malarial. (Boa aactfon J. of Ihto p*rt
rf Iha pnaaihlo )
Wattm not Am
XaauBuifotfhf With £xf*ctaoo* tf
MJM Which Hart Not «oao
Wtan adoptet la tha ftaat
t * - w * •• ^^ »•:•• '^* a ^B^BBaajawaav dom^^ajaBai ^ m^^f^^^^ -^ •-
to ba naardad aa ooBd aaat,^ fhaaa waataa aia autjatt lmm*r
wa^Cona^aaabaBaVatf «8 ipuHmMa ROtA Sohtida C
kaw) waataa an ranJy. tf r ttoadarda. Ordtoarihr. lhaaa an
.ardJattflytoha ramudad
ttutbastr^Mi
abbfotocydma.
•taadatod
Mataaiaaa duit an BBOWB to ha
-------
-------
Fadaral Rafjatar / Vol. ao. No. 3 / Friday. Janaary 4. 1985 / Rulaa and Regulation*
•3!
naaraat ncyclar I* fOO nllai away. ih«
paraon aennulartRf tba batafdoua
aacondary autartaJ woaid hava ta ihow
that It la aeonomleaUy aiaaonabla to
aand kit M cartel that far to ba racy clad.
Tha moal camrtadnf damonatntlon
claarly would ba that lha hasardoua
aacondanr malarial actually has bata
Moat oooaMfltf aupporlad l*»
£fQpQ6AL TWO fomjiidilfff^ D0W
aufjaatodAataMtortal ferwbJal
malarial* an aeounalatad btfon baliaj
neydad la an tmportaot indicator af
whathar or not Aay an wattat (or. to
tha eaaa of pradoua antal wattaa.
whathar thay ahoald ba aubfact to
rtfulaflon). This la boma oat by Aa
laraa oumbar of ncycHni daraaaa eaaaa
whan aacondary material Aat 1
ovanccuanitatad <
axtoaatva ban
atetodAatfawwl
ncycMaaala htoradato aboald aot b*
apacaiattvaty. Wa diaapaa. Wa Atot
that BMteriala that an aot aaowa to ba
neydabla (or aot toaafbly ncydabto to
Aa baada of a pafttcaJar aoantor) an
waatoa bamadlataly. Tba axampla to Aa
pnambto to Aa aropoaad tate al •
whil* to avaaratar aadaavond tofiad a
maaaa toneyek ft todkataa Aal
eondaettafnaaaKb toto ncjdtoa.
poaafbUtttaa to auiab diBanat thaa bttof
abia to ncyctoa waato. to addfttoa, Aa
Aaaacy b) aataaj«ipead to avalaato
wbalbar aa HBpravaa davaioonaatal
waalaa uaJaa* lha
tfea waata ft aUoto
parontar
accunulatlnf tfca
AffNotX»eyfitdl»Saffieitat
Xowtmtt. a. lha ftupuaarfftortafaa.
EPA propoaad that taooadaiy matarltli
aot alnady dafiaad aa waatoa Aal
accumulated at a lita lor avar a yaar .
wtihout n paroaat batof neydad. ar
tmuiarrad to a diOaiaBtalte for
recycling, an aolid waataa. (Ua
material* moat, at cowaa, han a know
poteadal lor ncydiag, at Aay will ba
eoojidarad to ba waalaa imaadiatoty.)
EPA alao propoaad Aal eaatato, 1
which wan i
WOuld BO I
toauf^^aal amov&ta i
yaar.
Wa eouphd Ala pfwtotoB wA aa
.axoapfioe aflowjaa. panoaa wba Uad
to facjua TVpanaat to a a^vaayaaf to
padttoa Aa Raftoaal AdmiBiattmtor (ar
autborteird atoto ba^naf Ato amiatoBJ
auffidant aaaaaBto f ""
year. V Aa patfOaa
accBBHialadantBrMwia
or naalaad axasapt boaii
burdaaafpraaCaaiAto
BotnajHiftogapadlan
aabmJttad to Aa
particular noorta
noarda Aal would aaJbaV Aa
AaatpraaoaaLAI
to all apaat material
prodacU aot already drfaa
Jia«^| ^^^ftrdOUft WAfltM ^Da4
^•••BBBBB*
ney
•utariaJa that an
looppradacdaapi
aladfaaaad
ara ovaraecuaiilatad. lhay no lonftr art
condfKoaafly axampt from ftfulaflen
(•at | mi**)}.
Tito Dravfaloa doaa «oi apsi'
aacondary auUriaU that airtt
waalaa whan thay an racyclad. ^»
axaaplt acrap natal aaoondafy
BMlarlala bumad M niala. or •panl bud-
add battartaa baing nelaimad. Tha.
rt»uiad«ula|»t4aadP»rt»a
ba OBBavltad to datamlna IT tbaaa
waataa an najulatad Rate of I
ftaa • aec a fijetor BI datoratolot *a
axtoaf of nfidtttoa far tbaaa waatoa.
at laapaaaa to manaant, wa aaa
addlBf thai fta> pteviatoB alao doaa a«i
apptytooatarialiaaMratadlna
« thaaa aalta IB lha
cakulattoa would ba toeonauitoBt wllk
tba naaooa EPA bftiafly axaaptad
waatoa aonmuhiad to tbaaa typae af
•nfto. 8aa 41 PK 72DO (Octobat XL
SPA prnpfiaait Ibal Aa 73%
rato ba caJculatod baaad OB votuaw. to
Baal anh aa that n to of tumovar eaai ba
aakolatod baaad oa aitbar waifttt at
Tohtaia. Btbac awaaacs appaan to ba a
naaonhh way to calculate hmonat.
Wa aM BMktaf ooa otbar cbar — 1»
tba propoaad mla>bf nquiiiat *
al tba accoMilatad awiariaJal
raeydad duriaaj tba oaluiaferyaai.
•tarttoa aa |aaumiy 1. 1964. Tha paopoaal
woatd bava aOowad Iba panoo>
olaUofl to caooaa aaaoof Iba
'. fiacai, aad tovaoiary yaaa» aa
which 7S» tHnevar
ha acMiTad OB rafUcMoa. wa
ilMBBMBBl aad to achina
'AbaUmatbatlf
wttb«dOhtia« atoftiat •*** al aaab
hrttTT-»" I " M'
Tf*tHat*naliif
aattaba Soma W<**»
rand apart nrnnnaal am li
Tbfatnar.
a wajto.
. L to black BajM« and, apaat prapoaakwa>tofiaa«aAa«ttaalioBaf
auffute acffbatof ladafawdTJaa»« wbaAaa Aa aimaaiumulattoa arenriaiaa
Oaoa tfM Bntarlal
afaarwitfaovt
bowavar, tt'
ulatodAayweainm ereaabaaht
' IP ba baurdooa waatoa aaaT boa\AataMai
would baooBH tBbfact to
aadar appBeaUi
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HOTLINE QUESTIONS AND ANSWERS
RCRA
1. Speculative Accumulation
Calculation
In March 1991. a facility generated 200 kg
of sludge that exhibited the toxictry
characteristic (TC)for lead (D008). The
operator of the facility placed these materials
in storage to await reclamation of lead. At
that time, the facility was not accumulating
any other recyclable materials. Since the
sludge will be reclaimed, it is not considered a
solid waste while stored prior to reclamation
(40 CFR S26l3(cX3». On December 31.
1991, the facility still had not recycled any of
this material. Is the sludge accumulated
speculatively under §26LI(cX8), since 75
percent was not recycled in the year, and
therefore subject to management as a solid
and hazardous waste?
No, the sludge would not be accumulated
speculatively. Although it is accumulated
before being recycled, it is not accumulated
speculatively if the person accumulating it can
show that (1) the material is potentially
recyclable anoThas a feasible means of being
recycled, and (2) during the calendar year
(commencing on January 1) the amount of
material that is recycled or sent for recycling
equals at least 75 percent of the amount of that
material accumulated at the beginning of the
period (f26U(c)(8)). A facility owner/
operator must show that he or she has recycled
75 percent of the material in storage on
January 1 of that year. "Under this provision,
the amount of material turned over in a year is
critical, not the total amount accumulated at
the end of the year" (48 EE 1449ft April 4,
1983). For the above facility, the amount of
material in storage on January 1,1991, was
zero, so on December 31,1991. the operator
does not have to show that any amount was
recycled during the calendar year. On
January 1.1992. however. 200 kg of D008
sludge art in storage. Thus, the facility must
be able to show that 75 percent of this
material, or 150 kg, has been recycled or sent
for recycling by December 31.1992. If the
operator cannot demonstrate this 75 percent
recycling rate, the sludge remaining in storage
is said to be accumulated speculatively and
becomes subject to regulation as a solid waste.
Because it exhibits a characteristic, the
generator must begin to handle the material as
a hazardous waste. The Agency notes that
"this approach could allow essentially a free
year to accumulate where a generator starts a
year with link or no was*" (48 EE14490:
April 4.1983). Tte period of one calendar
year starting on January 1 was selected.
however, to facilitate enforcement and achieve
uniformity (SO EE 635; January 4,1985).
In making the above calculation, the 75
percent requirement applies to all materials of
the same class being recycled in the same
way. If this facility also generated a by-
product that exhibited the TC for chromium
(D007) and reclaimed it, the owner/operator
would make a separate speculative
accumulation calculation for this by-product
(SO EE 635-6; January 4,1985).
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Hotftw QucftloAt and Antwtn
Fttxuary 1992
The RCRA regulations provide that certain
materials, which would otherwise be
considered hazardous waste, will not be
regulated as solid waste (and therefore
hazardous waste) when they are reclaimed
(|261.2(c)(3)). The requirement that materials
accumulated speculatively be regulated as
solid waste was intended to prevent abuse of
this exemption. It is only applicable to certain
situations, including the reclamation of
characteristic sludges and by-products.
materials used or reused as ingredients.
commercial product substitutes, black liquor.
sulfuric acid, and precious metals reclamation.
The rule is not applicable to spent materials
being reclaimed, listed sludges being
reclaimed, or listed by-products being
reclaimed, because these materials are already
considered solid wastes when awaiting
recycling (50 £R 635; January 4.1985). It
also does not apply to commercial chemical
products that are stored prior to reclamation.
because, by definition, these materials are not
regulated as solid wastes until they are
abandoned or intended for discard (48 ER
14489: April 4.1983).
Medical Wasta Tracking Act
imonstration Program
Ls the status of the Me
demonstration p
I Waste
from, laid out
In response d^he Medical Waste Tracking
Act of 1988 (whkr\afended RCRA by
adding Subtitle J),l$*established a two-
year demonstration program to track medical
waste. The program begarNune 22, 1989. and
ended June if, 1991. Five Sara participated
in the program: Connecticut. wW Jersey.
New Ypft, Puerto Rico, and RhoAJsland,
The Dfogram has expired and only sok*e of the
I recordkeeping regulations are
stuly in effect.
1 1008 of RCRA required EPA
submit to Congress two interim reports ,
final raport on medical waste manager
the demonstration program. The first i
second
1990
report su
available f
outlined an
each of the
medical
kterim reports were submitted i
iber 1990. The first ini
ay
then
The second ini
update and
areas. The third
summarize alt
evaluate the
program, and out!
medical waste. The
under Agency review1
expected late in 1991
final report. Congress
the two-year program
appropriate course of
management
information that
the tracking program
for additional research on
specific areas concerning
were identifier the ACL
report providJo a research
on each of tfese subject
finali
of the
'for managing
; is currently
ipletion is
•EPA submits the
I review the results of
1 determine the most
for medical waste
EMERGEN JY PLANNING AND
COMMUNITY RIGHT-1O-KNOW
3. Thrashc
Section
rDattrmlnatk
13
Under
AfacUirfcovered under §313 otthe
Emergencyflanning and CommunOu Right-to-
Know Actitanufactures and repairs\rplanes.
Prior to Beginning any repair work, ay fuel
remaining in the airplane's fuel tanks
ey service personnel at the fa
repairs are completed, the airpbjne is
with fuel removed from the airpl
and/or new fuel Should the owr
ator of the manufacturing and repair
faflity consider the toxic chemicals present
tjefuet when making $313 threshold and
lease calculations?
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DETAILED INSTRUCTIONS PACKET
FOR KELLY RECYCLING CASE STUDY
-------
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KEtLY RECYCLING
Kelly Recycling, Inc. (KR) is an unpermitted recycling facility located in Slapout,
Montana. KR recycles F006 wastes from commercial glass production and ceramic
industries by burning the waste in a mobile vitrification unit to produce an
aggregate. KR markets the aggregate as an endproduct with the following potential
uses: 1) an ingredient in ceramic tiles; and 2) an ingredient in abrasives. At one
time, KR also cited roadbased material as a potential use but, due to the inconsistenl
results in meeting LDR treatment standards, KR no longer markets their
endproduct for use as roadbased material.
In December 1992, you make a field visit to Kelly Recycling. Facility personnel claim
that they are recycling F006 waste, not treating it, because they meet the criteria
found in 40 CFR §261.2(e)(ii). KR claims that the metals present in the F006 waste
(primarily lead and cadmium) are necessary for the formation of bonds in the
production of the aggregate. (Typically, the raw material used in aggregr'
production contains iron as the metal responsible for the bonding.) The KR
operation does not make use of a process diagram describing exact amounts of raw
materials needed and there are no specifications for the final aggregate product (this
is due in part to the variability of the F006 waste that KR uses, and the fact that
industrial specifications for aggregates are very basic, such as specific gravity,
strength, weight, etc.). They are using the F006 waste as an effective substitute for a
commercial product. They have contacted a broker for the marketing of their
aggregate product.
Is the aggregate a solid waste?
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BACKGROUND MATERIALS
-------
*>
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9441.1939
•.VA$H;r.GTO\ 0 C 20463
APR 26 198S
a*.; ••'
MEMORANDUM
SUBJECT; F006 Recycling
FROM: Sylvia K.
Office of Solid Wastje (OS-300)
i
TO: Hazardous Waste Management Division Directors
Regions I-X
It has come to the attention of EPA Headquarters that many
of the Regions and authorized States are being requested to make
determinations on the regulatory status of various recycling
schemes for F006 electroplating sludges. In particular,
companies have claimed that F006 waste is being recycled by
being used as: (1) an ingredient in the manufacture of
aggregate, (2) a/i ingredient in the manufacture of cement, and
(3) feedstock for a metals recovery smelter. The same company
may make such requests of more than one Region and/or State.
Given the complexities of the regulations governing recycling
vs. treatment and the definition of solid waste, and the
possible ramifications of determinations made in one Region
affecting another Region's determination, it is extremely
important that such determinations are .consistent and, where
possible, coordinated.
TWO issues are presented. The first issue is whether these
activities are legitimate recycling, or rather just some form of
treatment called "recycling" in an attempt to evade regulation.
Second, assuming the activity is not sham recycling, the issue
is whether the activity is a type of recycling that is subject
to regulation under sections 261.2 and 261.6 or is it excluded
from our authority.
With respect to the issue of whether the activity is sham
recycling, this question involves assessing the intent of the
owner or operator by evaluating circumstantial evidence, always
-------
a difficult tasx. 3as:ca;;y, the determination rests on whet
the secondary material is "corjnodity-liXe." The main
environmental considerations are (1) whether the secondary
material truly has value as a raw material/product (i.e., is it
likely t* be abandoned or mismanaged prior to reclamation rathe^
t^an being reclaimed?) and (2) whether the recycling process
(including.ancillary storage) is likely to release hazardous
constituents (or otherwise pose risks to human health and the
environment) that are different from or greater than the
processing of an analogous raw material/product. The attachment
to this memorandum sets out relevant factors in more detail.
If the activity is not a sham, then the question is whether
it is regulated. If F006 waste is used as an ingredient to
produce aggregate, then such aggregate would remain a solid
waste if used in a manner constituting disposal (e.g., road-base
material) under sections 261.2(c)(l) and 261.2(e)(2)(i) or if it
is accumulated speculatively under section 261.2(e)(2){iii).
Likewise, the F006 "ingredient" is subject to regu:-tion from
the point of generation to the point of recycling. The
aggregate product is, however, entitled to the exemption under
40 CFK 266.20(b), as amended by the August 17, 1988, Land
Disposal Restrictions for First Third Scheduled Hastes final
rule (see 53 FR 31197 for further discussion). However, if the
aggregate is not used on the land, then the materials used to
produce it would not be solid wastes at all, and therefore
neither those materials nor the aggregate would be regulated
(see section 261.2(e)(1)(i)).
Likewise, cement manufacturing using F006 waste as an
ingredient would yield a product that remains a solid waste if
it is used in a Banner constituting disposal, also subject to
section 266.20(b). There is an additional question of whether
the cement kiln dust, remains subject to the Bevill exclusion.
In order for the cement kiln dust to remain excluded from
regulation, the owner or operator must demonstrate that the use
of F006 waste has not significantly affected the character of
the cement kiln dust (e.g., demonstrate that the use of F006
waste has not significantly increased the levels of Appendix
VIII constituents in the cement kiln -dust leachate). [NOTE:
This issue will be addressed Bore fully in the upcoming
supplemental proposal of the Boiler and Industrial Furnace rule,
which is pending Federal Reels tar publication.]
For F006 waste used as a feedstock in a metals recovery
smelter, the Agency views this as a recovery process rather than.
use as an ingredient in an industrial process and, therefore,
considers this to be a form of treatment that is not currently
regulated (see'sections 261.2(c) and 261.6(c)(1)). Furthermore,
because this is a recovery process rather than a production
process, the F006 waste remains a hazardous waste (and must be
-------
rar.agel as such prior to ir:. reduction :o *ne rrcce«s>, and ve
slag from this process would normally be considered a "derived
from" F006 waste. However, for primary smelters, the siac inav
sa considered subject to the Bevin exclusion provided that the
cvner or operator can demonstrate that trie use - f 'F006 waste has
not significantly affected the hazardous constituent content of
the slag (i.e., maXe a demonstration similar to the one
discussed above for the eemen*. kiln dust). [NOTE: In the
supplemental proposal of the Boiler and Industrial Furnace rule
noted a-bove, the Agency will be proposing a definition of
•indigenous waste" based on a comparison of the constituents
found in the waste to the constituents found in an analogous raw
material. Should the F006 waste meet the definition of an
"indigenous waste,* the waste would cease to be a waste when
introduced to the process and the slag would not be derived from
a hazardous waste.]
Also, you should be aware that OSW is currently reevaluating
the regulations concerning recycling activities, in conjunction
vith finalizing the January 8, 1988 proposal to amend the
Definition of Solid Waste. While any major changes may depend
on RCRA reauthorization, we are considering regulatory
amendments or changes in regulatory interpretations that will
encourage on-site recycling, while ensuring the protection of
human health and the environment.
Headquarters is able to serve as a clearinghouse to help
coordinate determinations on whether a specific case is
"recycling" or "treatment" and will provide additional guidance
and information, as requested. Ultimately, however, these
determinations are made by the Regions and authorized states.
Attached to this memorandum is a list of criteria that should be
considered in evaluating the recycling scheme. Should you
receive a request for such a determination, or should you have
questions regarding the criteria used to evaluate a specific
case, please contact Mitch Kidwell, of my staff, at FTS
475-8551.
Attachment
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L'Ki'i'LKlA ! OK LVM'JATlNC WHKTIII.H A WA.STL
M». IN';
The differ r.ce Between recyciir.c and treatrer.t is ••jrot
difficult o iistincuicv.. Ir. 3CT.e cases, on« :s »ry.n-3
interpret r.tent from Circumstantial evidence showing 17
-otivation always a difficult proposition. Tne potential for
abuse is such that great care must be used when making a
deterr--nation that a particular recycling activity is to 90
unregulated (i.e., it is one of those activities which is beyond
the scope of our jurisdiction). In certain cases, there may be
few clear-cut answers to the question of whether a specific
activity is this type of excluded recycling (and, by extension,
that a secondary material is not a waste, but rather a raw
material or effective substitute)? however, the following list of
criteria may be useful in focusing the consideration of a
specific activity. Here too, there may be no clear-cut answers
but, taken as a whole, the answers to these questions should help
ilrav t^e distinction between recycling and sham recycling or
treatment.
(1) Is the secondary material similar to ait analogous raw
material or product?
o Does it contain Appendix VIII constituents not iouncl
in the analogous raw material/product (or at higher
levels)?
o Does it exhibit hazardous characteristics that tn
analogous raw material/product would not?
o Does it contain levels of recoverable material
similar to the analogous raw material/product?
o Is much more of the secondary material used as
compared with the analogous raw material/product it
replaces? Is only a nominal amount of it used?
o is the seondary material as effective as the raw
material, or product it replaces?
(2) What degree of processing is required to produce a
finished product?
o can the secondary material be fed directly into r.he
process (i.e., direct use) or is reclamation (or
pretreatment) required?
o How much value does final reclamation add?
-------
What 13 the value of the secondary material''
? Is it listed :.-. industry news letters, trade
;ourr.als, etc.?
o Does tne.secondary material nave ecor.c-.c value
comparable to t.ne raw material that norrally enters
the process?
U) is there a guaranteed market for the end product?
o Is there a contract in place to purchase the
"product" ostensibly produced fron the hazardous
secondary naterials?
o If r.r>e type of recycling is reclamation, ;r. -.Me
predict 'js?S by the reciain^r1* TJ'e 9er.?rat'cir!< rs
there a satch toiling agreement? (Note tiiar si •-.re-
reclaimers are normally TSDFs, assuring they store
before reclaiming, reclamation facilities present
fewer possibilities of systemic abuse).
o Is the reclaimed product a recognized commodity?
Are there industry-recognized quality specifications
for the product?
(5) Is the secondary material handled in a manner
consistent with the raw material/product it replaces?
o Is the secondary material stored on the land?
o Is the secondary material stored in a similar manner
as the analogous raw material (i.e., to prevent
loss)?
o Are adequate records regarding the recycling
transactions kept?
o Do the companies involved have a history of
mismanagement of hazardous wastes?
(6) Other relevant factors.
o What are the economics of the recycling process?
Does most of the revenue come from charging
generators for managing their wastes or from the
sale of the product?
o Are the toxic constituents actually necessary (or of
sufficient use) to the product or are they just
"along for the ride,"
These criteria are drawn from 53 FK at 522 (January 8, 1988); 52
FR at 17013 (May 6, 1987); and 50 FR at 638 (January 4,
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NON-NOTIFIER INITIATIVE
Background
• Interagency Coordination
• Investigatory Tools
OVERHEAD #1
TITLE: Non-Notifier Initiative
KEY POINTS:
« During this presentation, we will discuss:
— Non-Notifier Initiative—its history, objectives, and importance
— Roles that Headquarters, Regions, and states play or can play to make the
Initiative successful
— Methods used to identify violators of the notification requirements.
X-l
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HISTORICAL PERSPECTIVE
Purpose of the Inftiative Is to identify and bring
into compliance entities that disregard RCRA
requirements
A Non-Nottfier is a hazardous waste generator or
transporter, and/or a facility owner or operator,
who fails to notify authorities of Its activities as
required by RCRA, or falsifies any notification
provided
OVERHEAD #2
TITLE: Historical Perspective
KEY POINTS:
• Before we begin this discussion, let's look at the history behind the Non-Notifier
Initiative and the events that led up to its implementation.
— The Non-Notifier Initiative was launched in winter 1991-1992 to identify
and bring into compliance generators and transporters of hazardous waste
and owners and operators of facilities who disregard RCRA requirements,
especially the Toxicity Characteristic and the Boiler and Industrial Furnace
rules. Because in September 1990 the TC rule expanded the number of
chemicals that qualify as characteristic hazardous waste for large generators,
EPA predicted that several violators of this rule existed. Entities that fall
within the scope of the Non-Notifier Initiative include those that hide their
mismanagement of hazardous waste by failing to notify authorities as
required under RCRA, or falsifying any notifications they do provide.
— The universe of non-notifiers includes facilities that have failed to file
Section 3010 notices and Part A permit applications or necessary permit
modifications. It also includes those who fail to notify regarding individual
units, even though a facility may have interim status or a Part B permit for
other units. For the purpose of the Initiative, if an owner or operator notifies
EPA or the state only after being contacted by a regulating agency, it will
still be considered a non-notifier.
X-2
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AN INTER-AGENCY SUCCESS STORY
EPA
STATE
OVERHEAD #3
TITLE: An Inter-Agency Success Story
KEY POINTS:
• In February 1992, as part of the Initiative, the EPA and nine states, including
Maryland, Alabama, Florida, Georgia, South Carolina, North Carolina, Ohio,
Colorado, and Washington, initiated more than 45 civil enforcement actions,
assessing over $20 million in penalties, against non-notifiers. In addition, EPA
announced several criminal enforcement actions it had taken to halt criminal
hazardous waste activities.
Of the actions filed in early 1992, 23 were taken by the states under RCRA. The
first initiative under RCRA to include state-lead cases highlights the cooperative
strategy between EPA and the states to crack down on illegal operators.
— Example of a civil case: Inspections by the State of North Carolina of a dry
cleaning facility located in Charlotte revealed the facility had open drums of
ignitable hazardous wastes, some of which had been dumped onto the ground.
Other waste was contaminated with tetrachloroethylene. In addition,
groundwater supplies within one-half mile of the facility were found to contain
traces of tetrachloroethylene and related organic contaminants.
X-3
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OVERHEAD #3
TITLE: An Inter-Agency Success Story (continued)
KEY POINTS:
— Example of a criminal case: In January 1992, one company and three of
its officers pled guilty in Washington to the illegal storage, transportation,
and disposal of hundreds of drums of paint waste. The three individuals
agreed to serve one year in prison, and the company agreed to pay
$500,000 in restitution for the cost of cleanup and proper disposal of the
paint wastes. Three additional individuals were also charged in a separate
indictment.
X-4
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IDENTIFYING VIOLATORS
OVERHEAD #4
TITLE: Identifying Violators
KEY POINTS:
• The states and EPA use a wide variety of investigatory techniques to locate
facilities that fail to notify authorities of hazardous waste facilities, including:
— Cross-referencing various databases, including Dunn & Bradstreet reports
and EPA databases from hazardous waste and other media, to identify
specific facilities likely to generate, treat, store, or dispose of hazardous
wastes
— Researching data from other criminal and/or civil cases
— Following up on tips and complaints received from the general public
— Pinpointing facilities that EPA and state workers observed during routine
activities
— Using the yellow pages of local telephone directories to locate businesses
under specific headings (i.e., machine shops, printers).
X-5
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OVERHEAD #4
TITLE: Identifying Violators
KEY POINTS:
In your Participant's Manual, you will find background materials relating to the
Initiative.
X-6
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Prvt«ti«> nfcile Afalrt
U-10T)
SEPA Environmental News
FOR RELEASES TUESDAY, FEBRUARY 4, 1992
EVA TARGETS HAZARDOUS WASTE "ILLEGAL OPERATORS"
XN LATEST ENFORCEMENT INITIATIVE
wendy Butler (202) 2CO-437C
The U.S. Environmental Protection Agency and nine states today
announced a major nationwide campaign against those who have been evading
the nation's hazardous waste management system and handling such waste in
a potentially dangerous Banner. EPA and the states together*have issued
more than 45 civil enforcement actions, assessing over $20 million in
penalties, against generators and transporters of hazardous waste and
owners and operators of facilities who have disregarded the requirements
of the Resource Conservation and Recovery Act, the law that governs the
disposal of hazardous wastes. In addition, EPA announced that it has
taken several criminal enforcement actions to halt criminal hazardous
waste activities.
The states participating in the initiative are: Maryland, Alabama,
Florida, Georgia, South Carolina, North Carolina, Ohio, Colorado, and
Washington.
"The Bush Administration is committed to vigorously enforcing the
nation's hazardous waste regulations," EPA's Assistant Administrator for
Solid Waste, and Emergency Response, Don R. Clay, said, "and we will
continue to use the full weight of our authority against those who seek
to operate toutside of our hazardous waste laws."
Some of these companies have been mismanaging hazardous waste and,
in effect, hiding that activity by failing to notify authorities as they
are required to under RCRA or falsifying such notifications. For
example, on Jan. 29, 1992, Kenneth R. Nugent, an environmental consultant
for the Evergreen Construction Co., was indicted for allegedly submitting
a backdated permit application in an effort to mislead EPA that Evergreen
was legally handling hazardous wastes under EPA's Toxicity Characteristic
(TC) Rule. Citing the Nugent indictment, EPA's Assistant Administrator
R-19 (more)
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for Enforcement, Herbert H. Tate, Jr., stated, "Because we consi
reporting to be the cornerstone of our regulatory system, EPA will not
tolerate those who submit false reports or fail to report in violation of
our nation's environmental laws. He are committed to protect the U.S.
taxpayer against the costs polluters impose on the environment."
Some of the facilities included in this initiative have created the
potential for substantial harm to human health and the environment. The
mismanagement of hazardous waste represented in many of these cases has
resulted in releases to the environment. Many of today's cases involve
the disposal of hazardous waste on the ground, down sewer drains, in
garbage dumpsters destined for disposal at municipal landfills, and in
leaking tanks or containers.
"These violations could lead to serious environmental problems; they
are not mere paperwork violations," said EPA's Don R. Clay. "He intend
to make sure that legitimate businesses have a level playing field by
eliminating the competitive advantage illegal operators might have in not
complying with environmental laws."
The initiative announced today is part of an intense, long-term
effort to identify illegal operating facilities and to bring them into
compliance. EPA and the states have increased the focus of their
inspections on finding facilities that have not notified the appro-
priate government agency of hazardous waste management activities. T-
addition to the actions announced today, EPA is in the process
investigating other illegally operating facilities which may be sub;
to future enforcement initiatives.
"By taking coordinated enforcement actions against non-notifiers,
EPA and the states are sending a clear message 'of their commitment to
assure compliance with hazardous waste management requirements," said
Tate. "Facilities that have failed to notify EPA or the state of
regulated hazardous waste management activities, and thus are operating
illegally, are on notice that they too could become the subject of an
enforcement action."
Half of today's federal administrative actions are brought against
illegal handlers of waste that became hazardous under RCRA's TC
regulation. Effective in September 1990 for large quantity generators as
well as treatment, storage, and disposal facilities, the TC Rule expanded
the number of chemicals that qualify as characteristic hazardous wastes.
Of the actions filed, 23 are actions taken by the states under RCRA.
The first initiative under RCRA to include state-lead cases highlights
the cooperative strategy between EPA and the states to crack down on
illegal operators.
R-19
(more)
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-3-
"Maryland has received high narks from EPA Region III for our
enforcement efforts on hazardous waste," said Maryland Secretary of the
Environment Robert Perciasepe. Maryland is one of several states that
participated in the development of this initiative. "It is important
that Maryland and other states continue to aggressively enforce hazardous
waste laws to assure that these materials are handled properly," he
continued.
Among the state cases announced as part of today's initiative, is a
case brought by N.C. against Ram Leather Care (Ran), a dry cleaning
facility located in Charlotte, North Carolina. Inspections revealed that
the Ram facility had open drums of ignitable hazardous wastes, some of
which had been dumped onto the ground, and that other waste was con-
taminated with tetrachloroethylene, a RCRA hazardous waste. In addition,
groundwater supplies within one-half mile of the facility were found to
contain traces of tetrachloroethylene and related organic contaminants.
As part of the federal administrative actions announced today, EPA
is bringing an enforcement action against Alfab Inc., a West Virginia
truck manufacturer, for dumping paint and solvent waste on the grounds of
its facility for the past 10 years. EPA also has notified the owner and
an operator of the Hawaiian Western steel Facility on the island of Oahu
that they have violated RCRA by illegally storing and disposing of
hazardous waste and other actions. EPA has informed the owner and an
operator of the Hawaiian Western Steel facility that the Agency may bring
a civil enforcement action against them if they do not promptly enter
into an agreement providing for the relief sought by EPA, including the
clean up of contamination posing a threat to human health or the
environment.
There are several criminal developments involving illegal operators
included in the initiative, in addition to the Nugent indictment.
On Jan. 21, 1992, three individuals and one company pled guilty in
Washington to the illegal storage, transportation and disposal of
hundreds of drums of paint waste. - Panama Machinery and Equipment Co.
Inc., doing business as The Everett Steel Companies, and three company
officers, Manney Berman, Leonard Berman and Leon Berman, each pled guilty
to participating in a conspiracy to illegally dispose of the paint waste.
The three individuals agreed to serve one year in prison, and the company
agreed to pay $500,000 in restitution for the cost of cleanup and proper
disposal of the paint wastes. Three additional individuals were also
charged in a separate indictment.
On Jan. 16, 1992, a federal grand jury in Dallas, Texas, indicted
Robert M. Brittingham, former Chairman of the Board and part owner of
Dai-tile Corp. and John J. LoMonaco, former Board member and president of
Dai-Tile, for felony violations of RCRA and conspiracy to violate RCRA.
The charges arose from the alleged dumping of lead-contaminated hazardous
waste into a sand and gravel pit in Dallas County, which was not a
permitted treatment, storage or disposal facility.
R-19 (more)
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-4-
~ <
Also, on Jan. 17, 1992, Ronald William Meyers, President and Chief
Executive Officer of Sutherlin Industries Inc., pled guilty to charges of
illegal storage of ignitable waste at .an unpermitted facility in
Sutherlin, Ore.
The states and EPA regions used a wide variety of investigatory
techniques to locate facilities that failed to notify authorities of
hazardous waste activities. A number of databases, including Dunn and
Bradstreet reports and various EPA databases were cross-referenced in an
effort to identify specific facilities likely to generate, treat, store
or dispose of hazardous wastes. other investigatory tools included
following up on tips received from the general public or pinpointing
facilities that EPA and state workers observed during routine activities.
R-19
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THE SUN
WEDNESDAY,
FEBRUARY 5, 1092
City firm jolted
with big one for
waste st(
fined $1.2 miliioi
•PA, from IB ""'••
btoa. or they
-L
50 other U.S. companies cited
on hazardous-material counts
day. aaatBtant EPA
tbjabd waate and emergency ra-
eponee. These are people who haw
ndt juat been breaking the law but
harming the cnvtronmeot at the
af the
tended that
rirvta
- .
Some of the fBRipanlea cttad wevv
itf toxic waatea on the 0vund>
aewer dimiAa and to tnak
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-------
-------
AIR EMISSIONS
OVERHEAD#1
TITLE: Air Emissions
KEY POINTS:
EPA has established standards limiting organic air emissions from specific
sources at all TSDFs that require permits under Subtitle C.
During this module we will be discussing:
— The equipment and processes covered by the air emissions requirements
— What the regulatory requirements are.
Xl-1
-------
WHEN DO ORGANIC AIR
EMISSIONS HAPPEN?
Storage
• Transfer
Treatment
OVERHEADS
TITLE: When Do Organic Air Emissions Happen?
KEY POINTS:
• Organic air emissions can occur any time a volatile is released to outside air,
such as during storage, transfer, or treatment.
• The principal concern about air emissions from hazardous waste comes from
volatile organic compounds (VOCs), some of which are toxic or carcinogenic.
During the first phases of regulation, organics are regulated as a class, rather
than setting individual standards for each toxic constituent.
XI~2
-------
PHASED REGULATORY APPROACH
PHASE!
Final
PHASE II
Proposed
PHASE III
Not Dtvaloped
«ub»«rt AA - PIVCM* V«nu
iMfc D>toe««n
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Inpmmdnwib
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Unto
OVERHEAD #3
TITLE: Phase I, II & III
KEY POINTS:
Section 3004(a) of HSWA requires EPA to promulgate standards for the
monitoring and control of air emissions from TSDFs.
The resulting regulations are aimed at controlling air emissions at new and existing
hazardous waste TSDFs and they are divided into three phases.
The first phase, sometimes referred to as "the Accelerated Rule," was published
June 21,1990 and became effective on December 21,1990 for interim status
facilities. It consists of Subpart AA, covering air emissions from process vents, and
Subpart BB, covering air emissions from equipment leaks. (§§264.1030 - 264.1065
or §§265.1030-265.1064)
Phase II, sometimes referred to as the Comprehensive Rule, was proposed on June
22, 1991. Phase II will set standards for organic emissions from surface
impoundments, tanks, containers, and miscellaneous units in a new Subpart CC.
The third phase, the Individual Constituents Rule, will use new data from TSDFs to
perform site-specific modeling of facilities predicted to have high resiuual risk after
Phases I and II. This will be constituent specific.
Compliance with Subparts AA and/or BB does not exempt a facility from
applicable Clean Air Act (CAA) standards or any state requirements.
Xl-3
-------
WHICH FACILITIES ARE AFFECTED?
n
• Permitted facilities
• Recycling units
• Interim status facilities
• New facilities
OVERHEADS
TITLE: Which Facilities are Affected?
KEY POINTS:
• It is important to recognize that some facilities are affected by Subpart AA while
others are affected by Subpart BB.
• Recycling units at interim status facilities, even if exempt, must comply with
AA. (§265.1030 (b)(2))
• Permitted facilities must be in compliance when their permit is reissued.
(§264.1030 (c))
New facilities must have the required devices and monitoring programs in place
when they begin operations.
With respect to Subpart BB, ail interim status facilties subject to the permitting
requirements of 40 CFR part 270 must comply. (§265.1030(b)(l))
As is the case with Subpart AA, all permitted facilties must be in compliance
when their permit is reissued (§264.1030(c)), and all new facilities must have
the required devices and monitoring programs in place when they begin
operations.
-------
SUBPART AA - PROCESS VENTS
SEPARATION
PROCESSES
4 Distillation
Fractionation
Thin-Film
. Evaporation
V Solvent
. Extraction
V Steam
Stripping
V Air Stripping
OVERHEADS
TITLE: Subpart AA - Process Vents
KEY POINTS:
Subpart AA covers the process vents associated with six specific separation
processes common at TSDFs for recycling of hazardous waste. These are
distillation, fractionation, thin-film evaporation, solvent extraction, and steam or
air stripping. (§264/or §265.1030(5))
About 350 units nationwide are subject to Subpart AA. More than half of these
are batch distillation units (as determined from the 1987 TSDF Survey).
• Process vents associated with any of the six separation processes are subject to
Subpart AA requirements if they handle wastes with 10 parts per million by
weight (ppmw) or greater of total organic compounds. The concentration is a
time-weighted annual average for each unit. (55 FR 25459)
Vents on tanks "associated with" an affected unit are also covered if emissions
from the process unit are vented through the tank. Thus, the requirements
cannot be avoided by rerouting emissions to a subsequent tank to be vented.
• A schematic of a thin-film evaporation system has been included with these
learning materials to illustrate the application of Subpart AA to process vents.
Xl-5
-------
EMISSIONS STANDARDS
Emission
Rates
10
3 Ibs/hr or
3.1 tons/year
Facility 1
Facility 2
ME
OMftlMdCol 19
OVERHEADS
TITLE: Emissions Standards
KEY POINTS:
Once the process vents subject to the requirements are identified, the discharges
from each must be added to provide a facility summation of emissions.
(§§264/5. K32(a)) The emission determinations can be based on either
engineering calculations or testing (§§265.1032 (c) or 264.1032 (c)) with
performance tests meeting the requirements of §§265.1034 (c) or 264.1034 (c).
For the entire facility, emissions are not to exceed 3 Ibs/hour and 3.1 tons/year.
(§§264/5.1032(a)(l)) The standards apply to the entire facility, regardless of the
number of vents at that facility. Therefore, as illustrated here, Facility 1, with
10 vents with high emissions, could exceed the standard, while Facility 2, with
12 vents but lower emissions, is within the standards.
If the standard is exceeded, the facility must install control devices to get the
summation value below both standards or reduce the summation value by 95
percent. (§§264/5.1032 (a)(2))
If vents are below 3 Ib/hr and 3.1 tons/yr. without control devices added on
(other tha^ internal devices, which are not regulated), the facility is only subject
to a recordkeeping requirement, specifically, §§264/5.1035 (f)-
XI-6
-------
CONTROL DEVICES
CONTROL DEVICES
264.1033/
265.1033
Vapor incinerators
Boilers/Process
Heaters
Flares
Condensers
Carbon Adsorption
Systems
OVERHEAD #7
TITLE: Control Devices
KEY POINTS:
There are no specific requirements dictating which types of control devices
should be used to reduce emissions. TSDFs may choose one of the devices
provided for in §§264/5.1033 or may select an alternative device.
Facilities using control devices listed in §§264/5.1033 must follow the operating
requirements for those controls found at §§264/5.1033(b) through (i).
(§§264/5. 1032(b) and 264/5.1033 (a))
Facilities using other control devices should have a description, including
operating parameters, in the operating record in accordance with
§§264.5/1033(3).
It is important to understand the regulatory difference between a control device
and a device that is part of the process. Devices that are intended to recover or
capture solvents or other organic compounds for use, reuse, or sale are
considered to be a component of the process and are not control devices.
Closed-vent systems have a no-detectable emission limit of 500
must be tested annually.
which
XI-7
-------
REPORTING REQUIREMENTS
OVERHEADS
TITLE: What Reports Have to be Filed?
KEY POINTS:
• Facilities with RCRA permits incorporating Subpart A A must report
serniannually all exceedances longer than 24 hours. (§264.1036)
• Interim status facilities are not required to report control device exceedances.
XI-8
-------
RECORDKEEPING REQUIREMENTS
Emission Rates
Monitoring Results
| Control Devices
cess Units
tes
OVERHEAD #9
TITLE: Documentation
KEY POINTS:
TSDFs must document process vent emissions and emission reductions achieved
by control devices. (§§264/5.1035)
TSDFs must keep records of:
— The emission rate for each vent and for the entire facility
(§§264/5.1035(b)(2))
— The throughput and operating hours of each affected process unit.
Documentation must show whether control devices achieve the emission rate
limits by design and during operation. (§§264/5.1035(b)(2) and (c))
Control devices must be monitored for specific parameters and the results
recorded in the facility operating record. (§§264/5.1035(b)(4))
A careful review of the facility's operating record is an important component of
an air emissions inspection.
XI-9
-------
SUBPART AA APPLICABILITY
Subp*rtAA
requirement*
«pp«y
OVERHEAD #10
TITLE: Subpart AA Applicability
KEY POINTS:
To recap the Subpan AA requirements:
• Subpart AA applies to process vents associated with six separation processes:
distillation, fractionation, thin-film evaporation, solvent extraction, and steam or air
stripping.
• Only vents associated with units that handle wastes with 10 ppmw or greater of
organics are subject to the regulations. Areas with only seals or gaskets are not
vents. (§§264/5.1030(b))
The entire facility must not exceed the regulatory standard of 3 Ibs/hour and 3.1
tons/year of organic emissions. (§§264/5.1032(a)(l))
• If the facility exceeds the standard, it must install control devices to bring emissions
below the hourly and annual standards or reduce overall emissions by 95 percent.
(§§264/5.1032(a)(2))
• Facilities with affected vents that never exceed the emission rate limit are not
required to install controls or monitor process vent emissions to comply with the air
emissions requirements. However, they must verify that the procedure used is
allowed under §264.1034(d)(2) or §265.1034(d)(2) and that this data is recorded in
a log that is kept in the operating record. (§264.1035(1) or §265.1035(1))
XI-10
-------
SUBPART BB — LEAK DETECTION
• Valves
• Pumps
• Compressors
• Pressure relief devices
• Sampling connection systems
• Open-ended valves or lines
• Flange
• Subpart AA control devices
OVERHEAD
TITLE: Subpart BB — Leak Detection
KEY POINTS:
• Subpart BB is a program for detection and repair of equipment leaks that are
likely to result in organic air emissions.
• The equipment leak standards apply to the types of devices listed on the
overhead when they contain or contact wastes that are composed of at least 10%
by weight of organics (or 100,000 ppmw). (§§264/5.1050(b))
• EPA estimates that approximately 1,300 TSDFs handle waste streams with 10%
or greater organics.
• The heart of Subpart BB is the Leak Detection and Repair (LDAR) program
which focuses on monitoring and timely repair of identified leaks.
• Equipment subject to Subpart BB requirements is not necessarily associated
with Subpart AA units. The two subparts are independent and are not directly
related.
Note that the waste concentration cutoff for Subpart BB is not an annual average
as for Subpart AA. Instead, if the hazardous waste concentration is ever
expected to exceed the 10% by weight measure, the equipment involved is
potentially subject to Subpart BB.
XI-11
-------
LEAK DETECTION AND REPAIR
OVERHEAD #12
TITLE: Leak Detection and Repair
KEY POINTS:
• As with Subpart AA, the first step in Subpart BB is identification of the equipment
subject to the regulations.
* All equipment such as valves, pumps, etc. that contain or contact hazardous wastes
that are at least 10 percent by weight organics (> 100,000 ppmw) are affected.
Note that the waste concentration cutoff for Subpart BB is not an annual average as
for Subpart AA. Instead, if the hazardous waste concentration is even expected to
exceed 10 percent by weight, the equipment is potentially subject to Subpart BB.
(§264.1031 and §264/5.1050(b))
• All equipment must be monitored using Reference Method 21, a copy of which is in
your Participant's Manual. This monitoring is instantaneous, as opposed to that
under Subpart AA, which involves emissions over an hour or year.
(§§264/5.1063(b))
• A device may be exempt from monthly monitoring requirements under certain
conditions, such as being identified as unsafe-to-monitor, difficult-to-monitor, or
No Detectable Emissions (NDE) (this will be the most common d ..Ignation that is
exempt from monthly monitoring). (§§264/5.1052(e), §§264/5.1053(i) and
§§264/5.1057(f), (g), and (h))
XI-12
-------
OVERHEAD #12
TITLE: Leak Detection and Repair (continued)
KEY POINTS:
• Unsafe-to-monitor means that personnel would be exposed to immedi;.; danger as
a consequence of monitoring.
• A difficult-to-monitor determination is warranted if personnel would have to be
elevated more than 2 meters above a support surface to perform monitoring or the
device is in an existing hazardous waste management unit.
XI-13
-------
LEAK DETECTION
10,000 ppm for most equipment
500 ppm for No Detectable Emissions
JUEimm
t lltf 11
OVERHEAD #13
TITLE: Leak Detection
KEY POINTS:
The monitoring requirements are dependent upon the type of equipment, the
designation of the equipment, and the fluid type.
For most equipment, the level of air emissions signifying a leak is 10,000 ppm.
(§§264/5.I052(b), 264/5.1057(5), 264/5.1058(5), 264/5.1061(c)(2))
For equipment designated as having no detecti5!e emissions (NDE), a leak is
defined as an emission that exceeds 500 ppm above 5ackground levels. An
example of an NDE device is a leakless valve, such as a sealed-bellows valve.
(§§264/5.1052
-------
REPAIRS
First repair
attempt within 5
days
Repair completed
within 15 days
Repair may be
delayed If certain
conditions are
met.
OVERHEAD #14
TITLE: Repairs
KEY POINTS:
In most cases, leak repair must be initiated within 5 days of detection and
completed within 15 days. (§§264/5.1052(c) and (d)(6), 264/5.1053(g).
264/5.1054(b), 264/5.1057(d), 264/5.1058(c), and 264/5.1064(c) and (d)) The
regulations give examples of appropriate "first attempt" at repair for most
equipment, such as tightening the packing gland on a compressor.
Facilities may claim a "delay of repair" if it can be justified properly in the
operating record. This is allowed if the repair is technically infeasible without a
hazardous waste management unit shutdown. (§264.1059)
Waste streams must be analyzed each time the waste changes and when the
facility wants to prove that a waste no longer has organic concentrations high
enough to require performance of the leak detection and repair program. As
with Subpart A A, organic concentrations may be determined by testing (as
specified in §§264/5.1063(d)), or applying knowledge.
XI-15
-------
RECORDKEEPING REQUIREMENTS
Closed-Vent
Systems
LDAR
Equipment
Identification
OVERHEAD #15
TITLE: Recordkeeping Requirements
KEY POINTS:
• The following information must be documented in the facility's operating
record:
— Equipment subject to the requirements, organics concentration of waste
stream, state of waste (gas/vapor or liquid), and method of compliance
with standards (§§264/5.1064(g), (h), (i), and (j))
— Leaks identified, dates and methods of repair, reasons for any delays, and
documentation of successful repair and (§§264/5.1064(d))
— Design, monitoring, operating, and inspection information for closed-vent
systems and control devices. (§§264/5.1064(e) and (f))
Remember that Subpart BB applies to all TSDFs. Even if no equipment
contains or contacts waste with organic concentrations over allowable levels,
records demonstrating that fact must be maintained. (§§264/5.1064(k)(3))
XI-16
-------
REPORTING REQUIREMENTS
Control device
exceedances
uncorrected for
>24 hours
Leaks not
repaired as
required
tofnmmom
J 1C d 19
OVERHEAD #16
TITLE: Reporting Requirements
KEY POINTS:
Permitted facilities must submit a semiannual report of exceedances of
equipment emission limits that go uncorrected for over 24 hours. The duration
and cause o. the exceedance and corrective measures taken must also be
reported. (§264.1065)
• A semiannual report is not required if all leaks are repaired as required and
equipment does not operate outside of design specifications for more than 24
hours.
• Interim status facilities are not required to submit a semiannual report.
XI-17
-------
SUBPART BB REQUIREMENTS
APPLY
OVERHEAD #17
TITLE: Subpart BB Requirements Apply
KEY POINTS:
• Subpart BB applies to all TSDFs that are subject to the permitting requirements
of 40 CFR Part 270. (§§264/5.1050(a))
• Regulated equipment types include valves, pumps, compressors, pressure relief
devices, sampling connection systems, and open-ended valves and lines, flanges,
and any control devices used on Subpart AA units. (§264.1031)
• The equipment is subject to the requirements if it contains or contacts wastes
with an organic concentration over 10 percent by weight and the waste is
managed in units subject to permitting under 40 CFR Part 270.
(§§264/5.1050(b))
Regulated equipment must be monitored regularly by the facility owner/operator
to detect any leaks and repairs that must be completed within specified
timeframes. (§§264/5.1052-§§264/5.1063)
• Interim status facilities were required to be in compliance with Subpart BB
requirements by December 21, 1991. Permitted facilities are required to
incorporate the appropriate requirements into their permits when they are
renewed and must be in compliance when the revised permit becomes effective.
XI-18
-------
SYNOPSIS
AA
Process vents
10 ppmw organics
Facility-wide
emission standards
BB
Equipment leaks
10% organic by
weight
Leak detection and
repair
OVERHEAD #18
TITLE: Synopsis
KEY POINTS:
Subparts AA and BB both address the control of organic air emissions from
TSDFs.
Subpart AA regulates process vents associated with separation units handling
wastes that are 10 ppmw or greater organics and requires that facility-wide
emissions from affected process vents be kept below specified levels.
Subpart BB covers leaks from a variety of equipment types that contain or
contact wastes that are 10 percent organics by weight or greater and requires
regular monitoring to detect leaks and timely repairs. Equipment does not have
to be connected to a Subpart AA unit to be subject to Subpart BB.
Xl-19
-------
CATEGORIES OF VIOLATIONS
CLASS I
VIOLATIONS
CLASS il
VIOLATIONS
Permit requirements are not met, application
not updated
Emission level* exceeded
Central* not Instilled or run properly
Analysis method! and performance testing are
Monitoring (Method 21) not done correctly
Irandi
I maintenance inadequate or
Improperly delayed
Reporting Incorrect or overdue
Incomplete or falsified reeordkeeptng
Equipment incorrectly or Improperly Identified
Inspections and monitoring done lele
OVERHEAD #19
TITLE: Categories of Violations
KEY POINTS:
• We have assumed a great deal of knowledge on your part regarding enforcement
considerations and how to conduct inspections.
• We want to briefly discuss air emissions violations. There is a wide range of
actual violations, and it is important for you to know how to classify them.
If the TSDF has a violation that results in a release or potential release of
hazardous waste into the environment, then a Class I violation has occurred.
• A Class II violation, on the other hand, identifies non-compliance without an
actual or potential release.
• If any of you have questions regarding enforcement strategy or the conduct of
inspections, now is a good time to discuss them.
• Now that you are all "experts" on air emissions, we are going to break into
color-coded teams to work on a case study.
XI-20
-------
OVERHEAD #19
TITLE: Categories of Violations
KEY POINTS:
• The case study will help you take the knowledge that you have just acquired and
understand how to practically apply it. You have the next 30 minutes to work on
the case study. Spend only the first few minutes reviewing the case study and use
the majority of time discussing the answers to the questions.
Xl-21
-------
-------
INSTRUCTIONS: Please spend a few minutes reading this case study. Devote the majority of your time
to working within your group to discuss and answer the questions on page four of this packet. We will
reconvene in 30 minutes to discuss the exercise.
AIR EMISSIONS CASE STUDY
WASTE AWAY, INC.
Waste Away, Inc. is a permitted TSD facility. Applicable portions of Subparts AA and
BB were included when their permit was re-issued on April 17,1991. Their original
permit was issued November 1990. They have two units in operation, an incinerator
and a distillation unit. The wastes are generated off site and transported to Waste
Away Inc. by rail car and tank truck.
The date of your inspection is January 14,1993.
A diagram of the facility is illustrated below and permit information is given on
the following pages.
VENT A
UNIT 1—DISTILLATION UNIT
VEMTC
VENTD
VENTB
VEMTE
UNIT 2—INCINERATOR
VEKTF
PRO©
VENTG
VENTH
— « — ffi — 1
S2 J
V
A
B3
y
i_i
$
n
a
A
•MWilHIKI^I
LEGEND:
l_ x Svrpling oonnaolion aytlam
fi Pump
X Vriv.
t~| Opvn-wxtad In*
|^ Pr»»ur« nM
-------
PERMIT INFORMATION
Issued: April 17,1991
Unit Operations:
1. distillation
2. incineration
Storage Tanks:
1. TOC = 120,000 ppm, light liquid, 200 million gallons/yr
2. TOC = 8 ppm, light liquid, 56 million gallons/yr
3. TOC = 450 ppm, heavy liquid, 35 million gallons/yr
4. TOC = 150,000 ppm, light liquid, 98 million gallons/yr
5. TOC = 160,000 ppm, light liquid, 45 million gallons/yr
Vents at Facility: 8 Pressure Relief Devices: 2
Pumps: 5 Sampling Connection System: 1
Valves: 3 Open-ended Line: 1
OPERATING RECORD
Pumps:
1. no detectable emissions
2. no detectable emissions
3. mechanical dual seal
4. general
5. general
Valves:
1. general
2. general
3. leakless
PRD: both are closed vent/control device
TOC Analysis:
initially conducted April 1,1991
last one was April 1,1992
method used: 9060
-------
Fluid type analysis conducted at the same time as TOC based on vapor pressure knowledge
Statement that control device reduces emission by 95%
Monitoring:
flow indicator records daily
temperature at two locations, recorded daily, inspected weekly
all correct general device information is included
design avg. exhaust temperature is 150°; recorded on device at 175°
weekly visual inspection of pumps and valves
monthly monitoring of all pumps and valves
Valve 2 was found leaking on December 12 and repaired by
January 1
4
-------
1.
2.
3.
4.
5.
6.
7.
QUESTIONS*
On what date is Waste Away, Inc. required to comply with Subparts AA and BB?
Which units fall under the Subpart AA process vent rule?
Which specific vents are subject to Subpart A A requirements?
If the operating record only listed TOC values (or documentation) for units
above 10 ppm, would *hey be in compliance?
How often do waste stream analyses have to be performed? Is Waste Away in
compliance? What if the distillation unit processes batch waste streams?
List the equipment subject to Subpart BB. Is PRO #1 covered? If not, when
would it be covered?
The facility adds a third operating unit that is subject to the process vent rule.
The following are the hourly and yearly emissions rates for the two units subject
to Subpart AA:
Unit!
Unit 2
Hourly
1.61bs/hr
2.51bs/hr
4.1 Ibs/hr
Yearly
1.7tons/yr
2.6 tons/yr
4.3 tons/yr
If the facility installs only one control device on one of these two units, is it
possible for the facility to be in compliance?
8. During your walk Lirough of the facility, you observe the following:
• no tags on any equipment
• dripping from Pump #4
• flow indicator measurements for the distillation unit control device
recorded daily
• temperature indicator measurements for the distillation unit control
device recorded hourly
• exhaust temperature from the distillation unit control device is 175° and
has been for 48 hours
• Valve #2 was found to be leaking on December 12,1992 and was repaired
on January 1,1993.
What violations have you found?
* For questions 1-6, assume the condenser is associated with the distillation unit.
For question 8, assume the condenser has been added as a control device.
-------
ANSWERS
1. April 17,1991 (264.1030(c))
2. Unit Number 1 (264.1030(b) & 264.1032(a))
3. Just the vents from the distillation condenser (264.1031)
4. No, they must show results for all waste stream lines (265.1063(d))
5. Annually, when waste stream changes, and at times specified by the Regional
Administrator; yes; test TOC for each batch (264.1064(k)(3))
6. Pumps: 1,4, and 5
Valves: 2 and 3
PRD may be subject - will be dependent upon how they are drawing from tanks
Sample connection system (264.1050(b))
7. Yes, if the facility installs a condenser with a 95 percent removal efficiency on
Unit 1, the facility will be below the emissions rates listed in the process vent
rule. Unit 1 emissions will be .08 Ibs/hr (.085 tons/yr) and the overall facility
emissions rates will be 2.58 Ibs/hr (2.685 tons/yr).
8. No tag on valve #2 (264.1052(b)(2) and 264.1064(c))
Flow indicator records daily, should be hourly (264.1033(0(1))
Exhaust temperature is too high above design average temperature
(264.1033(0(2)(vi)(B) and 264.1035(c)(4)(vii)(A))
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Inspection Checklists for
Process Vents and Equipment Leaks
The following inspection checklists pertain to process vents and equipment that should be used
during inspections. The first two pages of each checklist require general information concerning the
facility, its processes and equipment that can be completed from information available in the file material
for the facility in the EPA offices, supplemented by information available in the file material at the facility.
A summary sheet is given for listing all the control devices or pieces of equipment that you want to look
at during your inspection. Finally, a worksheet is given for each type of control device and for equipment.
Process Vent Checklist
The Subpart AA process vent checklist requires information for process vent control equipment
located at the facility being inspected. One form should be completed for each separate control device
present at the facility. In most cases only one ortwo control devices will be present, and so the other pages
are not needed.
ioment Leak Checklist
The table at the end of the Subpart BB checklist requires information for pieces of equipment
covered by the Phase I Air Rule located at the facility being inspected. Each piece of equipment that you
wish to check can be given one column on the checklist. Information for this table is obtained from the
facility records or operating log and from the individual pieces of equipment.
-------
-------
2.
Checklist
Process Vents Applications
Part 264/265 Subpart AA
ibilitv 264/5.1030
Does the facility have units permitted under Part 270 or is it permitted under Part 270 ?
1 a. What is the ef<«*ctive date* for this facility ?
ib. For interim status facilities, have these requirements been incorporated into Part B
application submittal?
Are there any of the following separation processes at the facility ?
distillation, fractbnation, thin-film evaporation, solvent extraction,
air stripping, or steam stripping
Standards 264/5.1032
Waste Streams
3. Are there waste streams associated with any separation processes thai contain 10 ppmw or
greater organics concentration? 264/5.1032(a)
3a. If they claim waste streams below 10 ppmw, did they use proper means to
determine concentration ? 264/5.1034(d)(1 or 2)
3b. Was date of initial determination before their effective date ?
264/5.1034(6)
3c. Where other analysis performed annually or upon change lo waste streams ?
264/5.1034(e)(2or3)
Facility Emissions Rates
4. Is the hourly process vent organic emission rate > 3 Ib/hr ?
Is the yearly process vent organic emission rate 2. 3.1 tons/yr ?
4a. If performance tests were made, were they according to 264/5.1034(C)* ?
4b. If engineering calculations were used, were they according to 264/5.1035 (b)(ii) ?
4c. Has owner/operator signed statement that test conditions portray worst case
actual operating conditions?
4d. Were the facility emissions rates determined by the effective date ?
Facility Emission Rates After Control Devices or Change in Operations
5a.
5b
Are the process vent organic emission rate for the facility < 3 Ib/hr and < 3.1 tons/year gi
are they reduced by 95% ?
If performance tests were used, were they in accordance with 264/5.1034(c) and was
test plan in accordance with 264/5.1035(b)(3) ?
5c. If engineering calculations were used, were they in accordance with 264/5.1035(b)(4) ?
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Checklist
Process Vents Applications
Part 264/265 AA
5d. For facilities without the control devices installed, do they have an installation plan
(264.5/1033(a)(2) and 264/5.1035(bj(1) ?
5e. Will the control devices be installed by 18 months after the effective date ?
Reporting (264.1036)
6. For facilities with final permits incorporating this rule, have they sent in semi-annual reports of exceedances
lasting longer than 24 hours?
(Use Individual control device worksheets to continue inspection)
Vent # Control Device
Condenser
Adsorber (Regen)
Adsorber (Nonreg)
Process Heater
Boiler
Catalytic Vapor Incinerator
Thermal Vapor Incinerator
Air Assisted Flare
Steam Assisted Flare
Nonassisted Flare
Summary Sheet for Control Devices (CD)
CD # On Unit #
For Vents*
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Checklist
Condenser
Part 264/265 AA
Operating Parameters:
List the operating parameters and the limits set for each in the permit or for interim status facilities, the limits the
facility gave based ontheir engineering calculations 264/5.1035(b)(4){iii)(E}or performance tests 264/5.1035(b)(2)(ii).
Operating Parameter
Limit
Have they met these limits
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035 (c)
Yes or No
Monitoring: A and either B or C
A. flow indicator 264/5.1033 (f)(1)
records hourly
installation point correct
daily inspection 264/5.1033 (f)(3)
A.MQ
B. [organic compound] in condenser exhaust vent stream
continuously record 264/5.l033(f)(2)(vi)(A)
daily inspection 264/5. 1033(f)(3)
C. temperature monitoring device 264/5. l033(f)(2)(vi)(B)
continuously record
two locations:
exhaust vent stream from condenser
coolent fluid exiting the condenser
accuracy:
+/- 1% of Temp being monitored or
.5 degrees C (whichever is greater
inspect daily 264/5.i033(f)(3)
immediately upon daily inspection 264/5. 1033(1) (3)
Repair:
Exceedances: 264/5.1035 (c)(4)(vi or vii)
if monitoring [organic] in exhaust:
when [organic] > 20% above design outlet [organic]
if monitoring T:
either T exhaust > 6 deg above design avg exhaust T
or T coolent out > 6 deg above design avg coolent T
cause of exceedance given
measures taken to correct cause provided
Closed-vent systems associated with the control device 264/5.1033(J)
standard: No Detectable Emissions and no visual emissions
monitor:* At facility effective date
Annually
RA requested times
repair: start by 5 days /complete by 15
3
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Checklist
Thermal Vapor Incinerator
Part 264/265 AA
Operating Parameters:
List the operating parameters and the limits set for each in the permit or for interim status facilities, the limits the
facility gave based on theirengineering calculations. 264/5.1035(b)(4)(iii)(B)orperformance tests 264/5.1035(b)(2)(ii)
Operating Parameter
Limit
Have they met these limits
t
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035(c>
Yes or No
Monitoring: A and B
A. flow indicator 264/5.1033 (f)(l)
records hourly
installation point correct
daily inspection 264/5.1033 (1)(3)
B. temperature monitoring device 264/5.1033(f)(2)(i)
continuously record
one location:
in combustion chamber downstream of combustion zone
accuracy:
•»•/-1% of Temp being monitored or..5 degrees C (whichever is greater)
inspect daily 264/5.1033(1)(3)
Repair:
immediately upon daily inspection 264/5.1033(f)(3)
Exceedances: 264/5.1035 (c)(4)(i or ii)
it monitoring RT min:
when T<760deg. C
if standard 95% eff:
when T comb, zone > 28 deg. C below given design avg. comb, zone T
cause of exceedance given
measures taken to correct cause provided
Closed-vent systems associated with the control device 264/5.1033(J)
standard: No Detectable Emissions and no visual emissions
monitor:* At facility effective date
Annually
RA requested limes
repair: start by 5 days /complete by 15
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Checklist
Catalytic Vapor incinerator
- .. „ Part 264/265 AA
Operating Parameters:
.nK Pa?Jmters and lhe limits set for each in the P6™" or for interi"i status facilities, the limits the
taoirtygavebasedontheirengineering calculations 264/5.1035(b)(4)(iii)(C)orperformancetests264/5.l035(b)(2){ii).
Operating Parameter Limit
Have they met th<=»«=e limits
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035 (c)
Yes or No
Monitoring: A and B
A. flow indicator 264/5.1033 (f)(l)
records hourly
installation point correct
daily inspection 264/5.1033 (f)(3)
B. temperature monitoring device 264/5.l033(f)(2)(i)(B)
continuously record
two locations:
exhaust vent stream from condenser
coolenl fluid exiting the condenser
accuracy:
+/-1 % of Temp being monitored or
.5 degrees C {whichever is greater
inspect daily 264/5.1033(f)(3)
Repair:
immediately upon daily inspection 264/5.1033(f)(3)
Exceedances: 264/5.1035 (c)(4)(iii)(A or B)
T inlet > 28 deg C below design avg. T inlet
T diff. across bed < 80% design avg. T difference
cause of exceedance given
measures taken to correct cause provided
Closed-vent systems associated with the control device 264/5.1033(J)
standard: No Detectable Emissions and no visual emissions
monitor:* At facility effective date
Annually
RA requested times
repair: start by 5 days /complete by 15
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Checklist
Boiler/Process Heater
Part 264/265 AA
Operating Parameters:
List the operating parameters and the limits set for each in the permit or for interim status facilities, the limits the
facility gave based on theirengineering calculations 264/5.1035(b)(4)(iii)(C)orperforrnancetests264/5.1035(b)(2)(ii
Operating Paramet<"
Limit
Have they met these limits
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035 fci
264/5.1035 (C)
Monitoring: A and either B or C
A. flow indicator 264/5.1033(f)(l)
records hourly
installation point correct
daily inspection 264/5.1033(f}(3)
B. If design heat input capacity < 44 MW
temperature monitoring device 264/5.1033(?)(iv)
continuously record
one location:
in furnace downstream of combustion zone
accuracy:
+/-1% of Temp being monitored or
.5 degrees C (whichever is greater)
inspect daily 264/5.K33(f)(3)
C. If design heat input capacity => 44 MW
continuously record 264/5.1033(<)(v)
parameter that indicates good combustion practices
inspect daily 264/5.1033(1)0)
Repair:
immediately upon daily inspection 264/5.1033(f)(3)
Exceedances: 264/5.1035(c)(4)(iv)
T flame zone > 28 deg C below design avg. flame zone T
position changes where vent stream is introduced
cause of exceedance given
measures taken to correct cause provided
Closed-vent systems associated with the control device 264/5.1033(J)
standard: No Detectable Emissions and no visual emissions
monitor;* At facility effective date
Annually
RA requested times
repair start by 5 days/complete by 15
Yes or No
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Checklist
Flares
Part 264/265 AA
ating Parameters:
List the operating parameters and the limits set for each in the permit or for interim status facilities, the limits the
facility gave based on their engineering calculations 264/5.1035(b)(4)(iii)(D) and 264/5.1033(d) or performance tests
264/5.1
Operating Parameter
Limit
Have they met these limits
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035 (c)
Yes or No
Standard:
no visible emibStons > 5 minutes/any consecutive hrs
flame present at all times
if steam-assisted:
Ve < 60 ft/s and Ht > 300 BID or
60 tt/s 1000 BTU
Ve < Vmax < 400 and Ht > 300 BTU
if air-assisted:
Ve < Vmax and Ht -> 300 BTU or
Ve < 60 ft/sec and Ht => 300 BTU
if non-assisted:
Ve < 60 ft/sec and Ht => 200 BTU or
60 < Ve < 400 ft/sec and Ht > 1000 BTU
Ve < Vmax < 400 and Ht > 200 BTU
Monitoring: AandB
A. flow indicator 264/5.1033(f)(l)
records hourly
installation point
daily inspection 264/5.1033(f}(3)
B. heat sensing device for continuous ignition of pilot flame
continuously record
inspect daily 264/5.1033(f)(3)
Repair:
immediately upon daily inspection 264/5.1033(f)(3)
Exceedances: 264/5 I035(c){4)(v)
period when pilot flame is not ignited
cause of exceedance given
measures taken to correct cause provided
Closed-vent systems associated with the control device 264/5.1033(J)
standard: No Detectable Emissions and no visual emissions
monitor: At facility effective date
Annually
RA requested times
7
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repair: start by 5 days/complete by 15
Checklist
Carbon Adsorbers - Regenerative
Part 264/265 AA
Operating Parameters:
List the operating parameters and the limits set tor each in the permit or for interim status facilities, the limits
facility gave based on their engineering calculations.
264/5.1035(b)(4)(iii)(D) and 264/5.1033(d> or performance tests 264/5.1035(b)(2)(ii).
Operating Parameter
Limit
Have they met these limits
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035 (c)
Yes or No
Monitoring: A, B or C, and D
A. flow indicator 264/5.1033(f)(1)
records hourly
installation point
daily inspection 264/55.1033(f)(3)
B. [organic compound] in carbon bed exhaust vent stream
continuously record 264/5.1033(f){2)(vii)
daily inspection
C. device to measure a parameter that indicates regeneration
on a regular, predetermined time cycle
continuously record
inspect daily
D. replace carbon at regular, predetermined time interval
that is < carbon service life 264/5.1033(g)
Repair:
immediately upon daily inspection 264/5.1033(0(3)
Exceedances: 264/5.1035(c)(4)(viii and ix)
if [organic compound]:
[org] exhaust > 20% above design exhaust vent
stream [org]
if parameter for regen. on regular cycle
flow continuous past predetermined reg. time
cause of exceedance given
measures taken to correct cause provided
what about .1035(c){6) or (7)Yes or No
Has 264'5.1035(c)(6) or (7) been met?
Closed-vent systems associated with the control device 264/5.1033(J)
standard: No Detectable Emissions and no visual emissions
monitor: At facility effective date • •
Annually
RA requested times
repair: 5/15
8
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Checklist
Carbon Adsorbers - Non-Regenerative
Part 264/265 AA
Operating Parameters:
• List the operating parameters and the limits set for each in the permit or for interim status facilities, the limits the
facility gave based on their engineering calculations.
264/5.l035(b)(4)(iii)(D) and 264/5.1033(d) or performance tests 264/5.l035(b)(2)(ii).
Operating Parameter
Limit
Have they met these limits
Are all design documentation, monitoring, operating, and inspection information in the facility operating record ?
264/5.1035 (c)
Yes or No
Monitoring: A and either B or C
A. flow indicator 264/5.1033(f)(1)
records hourly
installation point
daily inspection 264/5.1033(f}(3)
B. [organic compound] in exhaust vent stream
monitor on regular basis
inspect daily or at time < 20% time cartoon life (which is longer)
replace carbon when this indicates need
C. replace carbon at regular predetermined time interval less
than design carbon replacement interval
Repair:
immediately upon daity inspection 264/5.1033(f)(3)
Exceedances: 264/5.1035(c)(4)(viii) and (ix)
if monitoring [organic] in exhaust:
date and time when monitored for breakthru
and [ ] reading
date when carbon is replaced with fresh carbon
cause of exceedance given
measures taken to correct cause provided
Closed-vent system
standard:
•nonitor:
repair:
No Detectable Emissions and no visual emissions
At facility effective date
Annually
HA requested times
5/15
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1 .
2.
Checklist
Equipment Leak Applications
Part 264/265 Subpart BB
Uily. 264/5. 1 050
Is the facility permitted under Part 270 or does it have units permitted under Part 270 ?
1 a. Facility status: interim status or permitted?
1 b. What is the effective date* for this facility ?
Are any of these units exempt* ?
Waste Streams 264/5.1063 (d)
3. Are there waste streams that contain at least 10% organics by weight?
3a. Method of determination? knowledge, ASTM Methods D2267-88. E169-87, E168-88, E260-85 or Method
9060 or 8240
3b. If knowledge, is it documented?
3c. Date of initial determination
3d. Dates of other analysis? change, batch
For each waste stream that does qualify, determine fluid type.
gas/vapor service, light-liquid service, heavy liquid service
4a. Method for determining light liquid service.
vapor pressures of constituents from standard texts
ASTM D-2879-86
Facility Operating Record 264/5.1064 (g)
5. Does the facility have a list of the equipment and identification numbers that is affected by this rule ?
6. Is there a list of the id numbers of NDE pumps, valves, and compressors with signature of owner/operator ?
7. Is there a list of all affected equipment by designation ?
7. is there a list of PRO in gas/vapor service?
8. Dates of tesi for NDE
Background level
Maximum instrument reading
9. Is there a list of ID numbers for equipment in vacuum service?
List of ID numbers of "unsafe-to-monitor" and "difficult-to-monitor" valves, with explanation for each and plan for
monitoring or schedule.
-------
Checklist
Equipment Leak Applications
Part 264/265 Subpart BD
(Cont'd)
11. Is there a list of valves using the skip period alternative monitoring schedule, with schedule for monitoring and % le
determined ?
12. For dual mechanica1 -eal pumps or compressors with barrier tluid systems with sensors, is the criteria and explanation
of the criteria for determining sensor failure given ?
13. Is there an analysis of design capacity, influent/effluent for each unit subject to these requirements, and an up-to-date
analysis either by testing or knowledge to determine if the equipment is covered or not ?
Equipment
Identification of Equipment Covered by Rule
Equipment Id # Waste Stream #
Fluid
Pumps
genera!
dual mechanical
NDE (sealtess)
closed vent/control devices
Compressors
general
NDE Sealless
CV/Control Device
Pressure Relief Devices
general
CV/Control Devices
Sampling Connecting Systems
general
insitu
Valves
general
teakless (NDE)
unsafe to monitor
difficult to monitor
alter allowable %
alter, skip period LDRP
Open-ended valves, pr lines
Flanges and other connectors
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Requirements for Subpart BB Pieces of Equipment
Gas/Vapor or Liquid Service
general
1.
2.
3.
monitored monthly by Method 21
10,000 ppm means a leak
two successive months without a leak, monitor first month or each quarter, after leak return to
mo-'hly monitoring
repair 5/15 or delay or repair
NDE
1.
2.
3.
4.
designated NDE in operating record
has no external actuating mechanism in contact with HW
meets NDE by Method 21 (500 ppm + bkgd)
initially tested by Dec. 21,1990 and annually (or as RA specifies)
"Unsafe to Monitor"
1. designated as such in operating tog
2. appears that monitoring personnel would be exposed to immediate danger
3. owner has a written plan to monitor during sate times
"Difficult to Monitor"
1. designated as such in operating record
2. valve location requires personnel to climb over 2 meters above support
3. unit was in operating before June 21,1990
4. owner has written plan to monitor at least once a year
Percentage % Allowed to leak (2%)
1. owner has notified RA that they will use this method
2. a performance test ol all valves in unit during the same week by Dec. 21,1990 by Method 21
3. repair 5/15 or delay of repair
4. % leaking calculated by:
# valves subject to rule leaking
# valves subject to rule within the unit
Skip Period
1. owner notified RA to use this portion
2. can skip one quarterly leak detection after 2 consecutive quarterly monitoring with 2% or less leaking
3. after 5 consecutive monitoring periods at 2% or less, can skip 3
4. return to monthly monitoring if exceed 2%
Heavy Liquid Service
general
1.
2.
3.
Monitored by Method 21 within 5 days of indication ol leak by sight, smell, or alarm
10,000 ppm means a leak
repair 5/15 or delay of repair
Pumps. Light Liquid...Seryice
general
1. monitor monthly by Method 21
2. inspect visually weekly for leaks
3. leak is 10,000 ppm or above or a visual indication
4. repair 5/15 days
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Requirements for Subpart BB Pieces of Equipment (Cont'd)
mechanical seal system
1. has one of the following:
a) barrier fluid pressure above stuffing box pressure
b) has barrier fluid degassing reservoir to CV-CD
c) purges barrier fluid into HW stream with NDE to air
2. barrier fluid must not be HW with organics > 10%
3. barrier system must have sensor for failure of sys or seal system
4. visual inspection weekly
5. daily check on sensor or audible alarm checked monthly
6. criterion must be set for failure for sensor
7. failure of sensor means a leak
8. repair 5/15 days
no detectable emissions
1. have no externally actuated shaft penetrating the pump housing
2. operate with NDE by Method 21 (500 ppm + bkg)
3. tested initially, annually and any other time by RA
equipped with closed vent system to control device
1. meets control device requirements of the process vent rule
Heavy Liquid Service
1. monitor within 5 days of potential leak determination by visual, audible, or olfactory method
2. leak is 10,000 ppm by Method 21
3. repair 5/15
Sampling Connecting System
1. does it have closed vent or closed purge system
2. do these systems (pick one)
a) return purged HW to process line with NDE
b) collect and recycle purged HW with NDE
c) capture and transport all purged HW to control device
(see control device for requirements)
3. has design, documentation, monitoring, operating and inspections been recorded and kept up to
date in operating record
Open-ended valves or lines
general
1.
2.
3.
is it equipped with cap, blind flange, plug or second valve which is on at all times except during the
use of the line or valve
if second valve is used, must be closed after open-ended vafve is closed
if double block and bleed system is used, the bleed valve or line may remain open during operations
that require venting the line between the block valves, but must be closed at all other times.
Flanges and Other Connectors
general
1. have they monitored within 5 days of evidence of potential leak by visual, -uund or smell.
2. 10,000 ppm means a leak
3. repair 5/15 or delay of repair
-------
Requirements tor Subpart BB Pieces of Equipment (Cont'd)
Pressure Relief Devices
gas/vapor service
1. operating with NDE as measured by Method 21
2.
3.
or
2.
3.
after release, return to NDE within 5 days
monitor within 5 days of release by Method 21
is it equipped with closed-vent, control device (Hooded)
design, monitoring of control device in facility operating record
light liquid or heavy liquid service
1.
2.
3.
monitored by Method 21 within 5 days of visual, smell, audible indications of potential leak
over 10,000 ppm means a leak
repair 5/15
Closed-vent systems
1.
2.
3.
4.
meet NDE emissions requirements of SOOppm + bkgd using Method 21
monitor initially by Dec 21,1990 (or when control devices installed) and annually or other by RA
detectable emissions by method 21 or visual
repair 5/15
Compressors
general
1. has a seal system with barrier fluid system
2. a) barrier fluid pressure greater than compressor stuffing box pressure or
b) barrier fluid system with closed-vent to control device (see CVCD) or
c) has a barrier fluid purge system for NDE
3. barrier fluid is not HW with 10% by weight or greater organics
4. equipped with sensor to detect failure of seal system and/or barrier fluid system
5. a) sensor checked daily or
b) sensor with audible alarm checked monthly or
c) sensor with audible checked daily if at unmanned site
6. operator has set criterion for sensor failure
7. sensor indicates failure means leak
8. repair 5/15
Closed-vent and control device (Hooded!
1. see 264/265 Subpart AA requirements
NDE
1.
2
is it meeting NDE by Method 21
was ft certified NDE initially
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AIR EMISSIONS POTENTIAL VIOLATIONS
264.13
265.13
General requirements
Failure to identify and use proper waste analyses
methods.
264.15
265.15
requirements
Failure to develop an inspection schedule meeting the
terms and frequencies outlined in 264.1033(0(3),
264.10S2(aK2)/ (d)(4) and (d)(5), 264.1053(e) and
264.1058(a) and 265.1033(0(3), 265.1052(a)(2), (d)(8)
and (d)(5), 265.1052(e) and 265.1058
265.1032(a)
Process Vents
Failure to reduce total organic emisr ions to less than
1.4 kg/h (3 Ib/h) and 2.8 Mg/yr (3.1 tons/yr) or use
of a control device to reduce total organic emissions
from affected vents by 95% weight.
264.1032(6)
265.l032(b)
Process Vents control equipment
Failure to install control equipment to meet
requirements in 264/265.1032(a)
264.1032(c)
265.1032(c)
Process Vents
Failure to prepare and place in operating record an
implementation schedule for installation of closed-
vent system and control device.
264.1033(3)
265.1033(3)
Closed-vent systems and control devices
Failure to prepare and place in operating record an
impkmenfation schedule for installation of closed-
vent system and control device.
264.10330?)
265.l033(b)
Control devices
Failure to design and operate control devices to
recover organic vapors with an efficiency of at least
95% weight unless provisions of 264/264.1032 (aXD
are met.
264.1033(c)
265.1033(c)
Enclosed Combustion Device
(a) Reduction of VOCs by less than QSSi, or
(b) Total organic compound concentration greater
than 20 ppmv on a dry basis corrected to 3%
oxygen; or
(c) Residence time less than 0.5 seconds, or
(d) Combustion temperature lower than 750 C; or
(e) Meet facility emission rate limits.
-------
264.1033(d)(l)
265.1033(d)a>
264.l033(d)(2)
265.1033{d)(2)
Flares
Flares
No visible flare emissions shall occur.
Flame not present at all times.
264.l033(d)(3)
265.1033(d)(3)
Flares
Flares used if the net heating value of the gas is less
than 11.2 MJ/SMC (300 Btu/scf), if thr lare is steam-
or air-assisted or if the net heating value of the gas is
less than 7.45 MJ/SCM (200 Btu/scf) if non-assisted.
264.l033(d)(4)
26S.l033(d)<4>
Flares
Steam- and non-assisted flares nor designed for an
operated with an exist velocity greater than 18.3 m/s
(60 ft/s) except as noted in
265.l033(d)(6)
Flares
Failure to use flares which are steam-, air - or non-
assisted .
264.1033(e)
265.1033(e)
Flares
Failure to use approved methods to determine
compliance of flares with provisions of regulations.
264.1033(0
265.1033(0
Control devices
Failure to monitor and inspect monitoring readings
daily for all control devices to comply with
regulations to ensure proper operation and
maintenance and failure to implement all
requirements in 264/265.1033(0.
264.1033(g)
265.1033(g)
Control devices
For carbon adsorption systems with direct on-site
regenerating carbon beds, failure to replace existing
carbon with fresh carbon at a regular, predetermined
time interval that is no longer than the carbon service
life established as a requirement of
264/265.1035(b)(4)(iii)(F).
264.1033(h)
265.1033(h)
Control devices
For carbon adsorption systems that do not regenerate
the carbon bed directly on-site, failure to replace a
carbon canister on a regular basis using one of the
procedures outlined in 264/265.1033(h).
264.1033{i)
265.1033(0
Control devices
Failure to provide sufficient documentation for
devices other than those identified in 264/265.1033 to
comply with the provisions of 264/265.1033.
264.1033(10(1)
265.1033(k)U>
Closed-vent systems
Total organic emissions greater 500 ppm (method 21).
264.1033(k)(2) Closed-vent systems
265.1033(k)(2)
Failure to monitor to determine compliance with
264/265.1033(k)(l) on the schedule set for in this
paragraph.
264 1033(k)(3)&(4> Closed-vent systems
265.1033(k>(3)&(4)
Failure to comply with the repair and control
requirements for no detectable emissions from closed-
vent systems.
-------
264.1033QO
265.1033(k)
264.1034
265.1034
264.1035
265.1035
264.1036
265.1036
264.1050
265.1050
264.1052O)
265.1052(a)
264.1052(b)
265,1052(b)
264.1052(c)
265.l052(c)
264.1052(d)
265.1052(d)
264.1052(e)
265.l052(e)
264.1052(0
265.1052(0
264,1053(a)
265.1053(3)
264.1053(b)
265.1053(b)
264.1053(d)
265.1053(d)
264.1053(e)
265.1053(e)
264.1053(g)
265.1053(g)
Closed-vent systems
Closed-vent systems - Test methods and
procedures
Record*.eeping
Reporting
General requirements
Pumps in light liquid service
Pumps in light liquid service
Pumps in light liquid service
Pumps in light liquid service
Pumps in light liquid service
Pumps in light liquid service
Compressors
Compressors
Compressors
Compressors
Compressors
Failure to operate closed-vent systems at all times
when emissions may be vented to them.
Failure to use approved test methods, procedures and
performance tests outlined in this section.
Failure to comply with the recordkeeping
requirements outlined in this section.
Failure to comply with the reporting requirements
outlined in the section.
Failure to incorporate the requirements of
264/265.1052 - 264/265.1065 when facility permits is
re-issued. Failure to property mark or identify each
piece of equipment subject to these requirements.
Failure to monitor monthly to detect leaks by the
methods specified in 264/265.1063(b) and to visually
inspect each calendar week for dripping liquids from
the pump seals.
None
Failure to repair or attempt to repair within 15 days or
specified time frames.
Failure to meet provisions to exempt dual mechanical
seal systems from monitoring requirements.
Failure to meet provisions to exempt from monitoring
requirements any pump that is designated for no
detectable emissions as indicated by an instrument
reading of less that 500 ppm above background.
Failure to equip pumps with a closed-vent system if
exemption from monitoring requirements is sought.
Failure to equip compressors with seal system.
Failure to equip compressors with seal system
meeting requirements set forth in this paragraph (c).
Failure to install the seal system with a sensor that
will detect failure of seal system and barrier fluid
system.
Failure to inspect sensors daily or to equip sensors
with audible alarm that is checked monthly.
Failure to attempt to repair or to repair leaks once
detected within time frame.
-------
264.1053(h)
265.1053(h)
264.1053(0
265.1053(i)
264.1054(a)
265.1054(a)
264.1054(b)
265.1054(b)
264.l054(c)
265.l054(b)
264.1055(3)
265.1055(a)
264.l056(a)
265.1056(a)
264.1057(3}
265.1057(3)
264.1057(b)
265.1057(b)
264.1057(d;it(e)
265.1057(d)&(e)
264.1057(0
265.l057(f)
264.1057(g)&(h)
265.1057(g)&(h)
264.1058(a)
265.1058(3)
264.1058(b)
265.10580?)
264.1058(c)
265.1058(c)
264.1039
265.1039
Compressors
Compressors
Pressure Relief Devices in gas
Pressure Relief Devices
Pressure Relief Devices
Sampling Connecting Systems
Open-ended Valves or Line
Valves in gas/Vapor or in light liquid
service
Valves in gas/Vapor or in light liquid
service
Valves in gas/Vapor or in light liquid
service
Valves in gas/ Vapor or in light liquid
service
Valves in gas/ Vapor or in light liquid
service
Pumps and Valves in Heavy Liquid
Service; Pressure Relief Devices
Pumps and Valves in Heavy Liquid
Service; Pressure Relief Devices
Pumps and valves in Heavy Liquid
Service; Pressure Devices; and Flanges
and Connectors
Delay of repair
Failure to install a closed -vent and control device
system if exemption from these requirements arc
sought.
Failure to operate any compressors designated for no
detectable emissions to ensure no reading 500 ppm
above background is measured.
Instrument reading of 500 ppm or greater is
measured.
Failure to attempt or to repair leaks within specified
time frames.
Failure to install a closed-vent system for pressure
relief devices for which exempts are sought.
Failure to install, and /or operate closed-purge system
or closed-vent system.
Failure to install, operate, and maintain cap, blind
flange, plug or second valve.
Failure to monitor monthly to detect leaks.
Instrument reading of 10,000 ppm or greater, if the
owner/operator uses this as a performance standard
for valves.
Failure to attempt to repair or to repair leaks within
specified time frames and by the practices outlined in
the paragraph.
Failure to comply with requirements for designation
of a valve with no detectable emissions.
For unsafe- or difficult-to-monitor valves, failure to
comply with specified requirements
Failure to monitor these pieces of equipment within
five days if evidence of a leak is found.
None
Failure to attempt to repair or to repair leaks detected
on these pieces of equipment within the specified time
frames. First 3ttempt within 5 days, repair to be
completed no later than 15 days.
Failure to meet specifications permitting delays in
repair of equipment leaks if repairs are not carried out
within 5 or 15 days of the detection of the leak.
-------
264.1060
265,1060
Closed-vent systems and control devices
Failure to comply with provisions of 264/265.1033 for
closed-vent systems and control devices.
264.1061
265.1061
and
264.1062
265.1062
Alternative standards
Failure to comply with the alternative standards and
performance test requirements of this paragraph if an
owner/operator requests permission to use the
alternative compliance standards for valves in
gas/vapor service or in light liquid service. The
alternative standards are the allowance of 2 percent of
the valves to leak and the allowance of leak detection
and repair skip periods. More than 2 percent of tb -
valves leaking is a violation and requires monthly
monthly monitoring.
264.1063
265.1063
Equipment leaks - tests methods and
procedures
Failure to use approved test methods and procedures
and performance tests outlined in this section.
264.1064
265.1064
Record keeping
Failure to comply with the recordkecping
requirements outlined in this section.
264.1065
265.1065
Reporting
Failure to company with the reporting requirements
outlined in this section.
270.24
Part B Application
Failure to include the specified information for
process vents in the Part B application for the facility.
270.25
Part B Application
Failure to include the specified information for
equipment in the Part B application for the facility.
-------
t
-------
FEE 01 '93 ee:
ee:3B*1
United Stitw
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Triangle Part NC 27711
P.7/18
EPA-450/3-80-032b
June 1982
'Air
Benzene Fugitive
Emissions—
Background
Information for
Promulgated
Standards
EIS
CPA-QAQPS Library
-------
-------
..V
Comnent: Twq coramenters remarked about the costs associated with
dual seal systems. One commenter reported that one of the refineries
contacted in the area estimated a minimum cost of $200,000 for
installation of secondary seals with an estimated $35.000 annual
maintenance and monitoring cost (IV-0-10). One commenter evaluated
the use of dual mechanical seals with a barrier fluid and controlled
degassing vents. The commenter concluded that safe Installation of
this type of system is very expensive and would only control minor
amounts of benzene (IV-D-29).
Response: Since proposal, a monthly leak detection and repair
program has been selected for control of benzene fugitive emissions
from new and existing pumps (see Section 2.3). For new and existing
compressors, EPA has selected equipment control. EPA has estimated
costs of installing safe systems and has concluded that they are
reasonable.
2.4.1.3 Sampling Systems. Four comraenters submitted the following
comments on the sampling system requirements:
Comment: One commenter recommended that the last five words of
paragraph (2), Sec. 62.112{c) of the proposed standard, "without
benzene emissions to atmosphere/ should be changed to, "with minimal
emissions to atmosphere." The commenter noted that designing sampling
systems with zero benzene emissions would require using a benzene-free
purge. The commenter recommended that only specially designed sampling
valves should be required (IV-D-20). One commenter recommended that
other sampling systems besides a purge system be allowed, for example,
venting to a control device with 95 percent recapture (IV-0-Z1).
Another commenter stated that sampling systems are not state-of-the-art
for worker protection. The commenter also recommended that a definition
of In-situ sampling systems be added to the standard (IV-D-24).
Response; In the BID for the proposed standard, 1t was estimated
that closed-loop sampling systems are almost 100 percent effective
in eliminating sampling purge emissions. As noted in the preamble
of the proposed standard (46 PR U80, January 5, 1981), however, no
available data indicate that application of any control technique
would be able to comply with a "no detectable emissions" standard
(500 ppnv or less VQC concentration above background). Sorae benzene
2-57
-------
P.9/18
could be emitted during sample transfer to • closed collection
device.
The Intent of the standard 1$ to eliminate sample line purging
to atmosphere, ground, or sewer drain. A "zero" (no detectable)
emissions limit Is not practicable as noted by the establishment of
an equipment standard Instead of an emissions limit because sampling
systems can have detectable emissions. Reference Method 21 would
not be practicable for determining emissions from these systems.
EPA recognizes that closed-loop sampling systems have limitations
with respect to low-pressure processes or tankage and. In some Instances,
safety requirements. The regulation, therefore, does not specify it
"closed-loop sampling system,* but It does require a "closed-purge
system." This will allow any system that collects all benzene purged
during sampling and recycles or destroys the collected benzene.
Closed-loop sampling systems are used 1n the 610 for the proposed
standard to evaluate the cost of controlling fugitive emissions from
sampling systems (closed-loop sampling systems are generally the most
costly system to Implement a closed purged system).
The Intent for sampling systems has been clarified In the final
standard with the changes presented 1n response to other comments.
By elaborating on the requirements for "closed-purge systems" and
"1n-situ" sampling systems, the proper equipment design criteria
for sampling systems have been better described:
"Closed-purge system" means the equipment comprising a closed-loop
sampling system or any system that collects benzene purged In the
sampling process and either recycles or disposes of benzene.
"In-s1tu sampling systems" are non-extractive or 1n-l1ne sampling
systems that Involve measurement or sampling of process stream
conditions without extraction of the sample from the process stream,
resulting in no purged emissions of benzene.
In addition to closed-purge sampling, EPA has considered since
proposal allowing a closed-vent vacuum system connected to a control
device. Closed-vent vacuum systems connected to a control device
collect the sample purge and then transport the sample purge to a
control device. If these systems are not open to atmosphere, then
their reduction 1n emissions of benzene would be equivalent to
2-58
-------
FEE 01 '93
collecting the purge In a collection system that 1s not open to
atmosphere. Rased on these considerations, EPA has decided to
allow closed-vent vacuum systems connected to control devices.
Comment; One commented stated that there were the following
probiere in controlling emissions of benzene In accordance with the
proposed regulations:
(1) Attempts to perform closed-loop sampling of nitration batches
at one plant were unsuccessful.
(2) One plant anticipated problems with closed-loop sampling of
raw material deliveries and reactor content measurements (IV-D-29)*
Response; As stated 1n the previous response, EPA specifies in
the proposed and promulgated regulations "closed-purge systems" as the
control equipment for sampling systems, not "closed-loop sampling
systems." Requiring "closed-purge systems" allows any system that
collects all benzene purged during sampling and recycles or destroys
the collected benzene. An example system 1s that of the Fetterolf-"ftam-
seal" presented 1n Docket A-79-27-II-D-S6.
2.4.1.4 Continuous Benzene Emissions Control. Comment; One
commenter expressed concern for the requirement that all control
systems be operated 100 percent of the time when benzene emissions
may occur. The commenter was concerned that the provision does not
allow for expected or unexpected maintenance or repair of the
control system. The commenter recommended that a bypass of emissions
be allowed where the control systems must be taken out of service
for maintenance or an emergency only where the next emissions that
will be bypassed would not exceed the excess emissions that would
result from a shutdown and start-up of the process unit (IV-D-21).
Response; The standard requires that control devices be operated
when emissions of benzene are vented to them. TMs means that closed*
vent systems transporting the benzene emissions to control devices
can not be vented uncontrolled to atmosphere. For larger emissions.
current Industry practices do not allow uncontrolled venting of
emissions from closed-vent systems. Thus* alternative control
devices will be available to control these emissions. For smaller
emissions, such as those from dual mechanical seal systems, the
2-59
-------
-------
SERA
United Statts
Environmental Prot»ct>on
Aoency
Office of Air Quality
Planning and Standards
Research Trtongto Park NC 27711
EPA-450/3-80-O32*
November 1980
Benzene Fugitive
Emissions —
Background Information
for Proposed Standards
Draft
-------
-------
I ,
of an open-ended valve, they are effective in preventing leaks through
the seat of the valve from reaching atmosphere. Open-ended valves,
about 20 percent of the total valves handling benzene, are used
mostly in Intermittent service for sampling,-venting, or draining. If
a cap or plug Is used downstream of a valve when It 1s not In use,
benzene emissions can be reduced* No test data are available to
support a control efficiency for these devices. However* the control
efficiency will depend on such factors as frequency of valve use.
valve seat leakage, and material that Bay be trapped In the pocket
between the valve and cap or plug and lost on removal of the cap or
plug. For the purposes of emission calculations, 100 percent control
efficiency of these emissions has been Assumed. The Installation of a
cap, plug, or second valve does not prevent the leakage that may occur
through the valve stem seal. The attachment of a second valve down-
stream of the open-ended valve provides a double block and bleed
arrangement. In this system. It 1s Important that the upstream valve
be closed first. Otherwise, product will remain in the line between
the valves, and expansion of this product will cause leakage through
the valve stem seals.
4.3.5 Closed-Loop Sampl1ng
A frequent operation in most refining and organic chemical production
operations Is to withdraw a sample of material from the process for
analysis. To ensure that the sample 1s representative, purging of the
sample lines and/or sample container 1s often required. If this
purging 1s done to atmosphere or to open drains, or 1f there are
Incidental handling losses, benzene emissions can result. A closed-loop
sampling system 1s designed so that the purged VOC Is returned to the
system or sent to a closed disposal system and so that the handling
losses are minimized. Figure 4-7 gives two examples of closed-loop
sampling systems where the purged VOC Is flushed from a point of
higher pressure to one of lower pressure in the system and where
sample-line dead space 1s minimized. Other sampling systems are
available that utilize partially evacuated sampling containers and
21
require no line pressure drop.
4-24
-------
-------
PROCESS. UWS.
'PROCESS
— «a
U
T
o
•AMPUE.
Figure 4-7, Diagram of Two Closed-loop Sampling Systens
4-25
-------
-------
MS/IE
Response;
As noted in the preamble to the proposed regulations (46 FR 1143-1145),
performance standards based on emission Units were not possible for pumps
and compressors because of technological and economic limitations. More-
over, 1t was not possible to set concentration Unit performance standards
based on concentration Units. Even pumps and compressors using the
equipment required by the standards have the potential to leak and any leak
would be a violation of such a performance standard* Additionally, there
are too few pumps and compressors to set a meaningful percent leaking
performance standard.
EPA has provided a work practice standard for pumps and has established
the equipment standards as alternative control techniques for pumps. In
addition, the equipment standards as proposed allow for several options.
Dual mechanical seals of any configuration with pressurized or non-pres-_
surlzed barrier fluid systems or an enclosed and vented seal area were all
offered for pumps. Compressors can be controlled by using any type seal
with a barrier fluid or enclosed and vented seal areas.
EPA believes that the standards for pumps and compressors are
reasonable and allow all owners or operators of affected facilities to
comply. The standards Incorporate provisions for complying by using
seal less equipment, dual seals with barrier fluid systems, or vented seal
areas without requesting permission or an equivalency determination. EPA
has also provided equivalency procedures for these standards that permit an
owner or operator of a process unit to comply with other requirements 1f the
other requirements are shown to provide emissions reductions equivalent to
the required equipment standards. The technical problem cited by the
comnenter 1n Docket Item No. IV-0-6 is addressed 1n Sections 4.8 and 4.12.
3.5.5 Perfonaance Standard for Sampling Systems
Cement;
One coonenter (IV-0-6) recommended that a performance standard be
established for sampling systems. He felt there were better methods of
sampling which could not be used under the proposed regulations which could
be used without discussion 1f a performance standard were established.'
3-24
-------
-------
Comment?
One cownenter (IV-D-26) pointed out that the words "stuffing box
pressure" should be followed by the word "or" 1n the proposed Section
60.482
-------
- If
Slnetnly,
^ Richard S. Colytr
Standards Dtvelop^nt Branch
Prink McAl liter* Ktt/DStf (OS-341)
by: OAQPS'.ESD:SD^RCo1y»nND03:(2fi-5262:9/13/90
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t
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CASE DEVELOPMENT AND SUPPORT
Quality Inspections
Documentation of Evidence
RCRA Civtl Penalty Policy.
OVERHEAD #1
TITLE: Case Development and Support
KEY POINTS:
• The RCRA Enforcement Inspection Program serves two critical functions:
determining compliance with the RCRA regulations, and supporting enforcement
actions. Because of this, it is imperative that inspections be performed in a
manner that is both technically and legally correct; flaws in either the technical
or legal conduct of an inspection may hamper, prevent, or invalidate the use of
inspection results for these critical functions.
• During this presentation, we will discuss the importance of conducting and
documenting quality inspections and how inspections impact case development.
• We will discuss the importance of breaking down each relevant statute and
regulation into its component elements, as a means of identifying whether a
facility is in violation of it and, if so, the necessary elements for proving a
violation. We will briefly engage in an interactive exercise documenting
evidence necessary to prove a federal regulatory violation.
• In addition, we will briefly discuss the RCRA Civil Penalty Policy and explain
how a penalty is calculated.
XII-1
-------
CASE DEVELOPMENT PROCESS
Inspection
Inspector
Organizes
Documentary
Evidence Into
an Inspection
Rle
Inspection FHe
is Forwarded to
Regional Case
Development
Officer (RCDO)
RCDO
Reviews
Inspection
Rle
Decision Made
to Pursue or
rtr/\n
IJTOp
Enforcement
Action
Pursuit of
Either Judicial
or
Administrative
Enforcement
Action
OVERHEADS
TITLE: Case Development Process
KEY POINTS:
* This is a basic flowchart of the case development process.
• While some of the process is undoubtedly familiar to you, some parts of the
process may not be, so let's take a few minutes to look at the process and see
where you, as inspectors, fit in.
• Obviously, the process starts with you and the inspection file you put together.
After the inspection, however, if you take a closer look at the process, you'll see
how it all hinges on your actual visit to the facility, the evidence you observed, and
the manner in which you document it.
• After you forward the file to the Case Development Officer, he or she is going to
review the file with four things in mind:
— Have the samples and documents been properly identified?
— How significant is the violation identified?
— What is the past history of the facility?
— Is the documentation of the evidence adequate?
XII-2
-------
OVERHEAD #2
TITLE: Case Development Process (continued)
KEY POINTS:
• While all four factors are important to the development of a case, if the
documentation of evidence is inadequate, the pursuit of an enforcement action,
whether it is judicial or administrative, will be impossible.
• Whether or not evidence is adequate is based not just on whether or not the
evidence exists, but on the validity and quality of the evidence, and the level and
detail of documentation.
• We will talk more later about gathering and substantiating evidence that is
adequate to prove the substance of a violation by proving each element of the
violation.
• As was evident from our earlier discussion, depending on the particular approach
of a Region or state, attorneys' involvement in the enforcement process can begin at
various points. They may introduce litigation concerns into the deliberations over
whether or not to pursue an enforcement action.
XII-3
-------
INFORMATION-GATHERING
AUTHORITIES
• Information Requests
• Administrative Warrants
• Subpoenas
OVERHEADS
TITLE: Information-Gathering Authorities
KEY POINTS:
• As inspectors, you are obviously familiar with inspections as a type of
information-gathering authority, but there are three others that I would like to
discuss.
• The first is the information request. An information request, whether it is made
using the telephone or by letter, is authorized by §3007(a) of RCRA. Section
3007(a) allows you, as an inspector or a case development officer, to contact a
hazardous waste handler with regards to existing or required information
concerning their hazardous waste.
• Another information-gathering authority is the administrative warrant, which some
of you may have used in the past. An administrative warrant can be used to gain
entry into a facility when facility officials have denied entry to an inspector or
have withdrawn their consent to an inspection that is taking place. In certain
circumstances, such as when previous contact or correspondence with the facility
to be inspected provides reason to believe that entry will not be allowed, a
pre-inspection warrant can be granted. A warrant is really just a judicial
authorization for an appropriate official to enter a specifically-described location
and perform clearly-defined functions. In your case, it would allow you into a
facility to conduct an inspection.
-------
OVERHEAD #3
TITLE: Information-Gathering Authorities (continued)
KEY POINTS:
• If you are ever in a situation where you feel a warrant is needed, you first will
need to contact the Regional Counsel's office. After discussion, a joint decision
will then be made whether or not to seek a warrant. Regional Counsel will then
notify Headquarters and will also contact the U.S. Attorney for the district in
which the property is located. Once the application for the warrant is prepared
and signed by the appropriate magistrate, the warrant can be served. The
inspection may then take place strictly in accordance with die warrant. Once the
inspection is over, the inspector must sign the return of service form indicating to
whom the warrant was served and the date of service. The warrant must then be
given to the U.S. Attorney, who will return the wamant to the issuing magistrate.
• The last information-gathering authority well talk about today is the subpoena.
A subpoena is a legal tool that requires the attendance of witnesses or the
production of documentary evidence in court or at a hearing. RCRA subpoenas
are only allowed in the context of a hearing held pursuant to a §3008 order, and
because of that, are not used in conjunction with actual inspections, though they
may be used later in the enforcement process.
XII-5
-------
GOING BEYOND CHECKLISTS
• Take Holistic Approach to Facility
• Kaap Eyas and Ear* Opan During
Visual Inspection
• Make Uaa of All Relevant Resources
OVERHEADS
TITLE: Going Beyond Checklists
KEY POINTS:
• Certainly, inspectors should make use of checklists when preparing for and
conducting inspections. They provide a useful mechanism for organizing an
inspection, and they ensure that all basic information will be obtained. However,
checklists can be limiting, as we have already discussed earlier in the Institute.
Reliance on them can lead to a near-sightedness that makes visual inspections
less effective than they could be - the inspector is more worried about checking
boxes than in really seeing what is happening at the facility.
• By all means, use checklists when inspecting facilities. But also attempt to do
the following:
— Take a holistic view of a facility. Make sure that you understand, to the
extent possible, the different processes and operations relating to waste
generation, transportation, and storage, and management's approach to
compliance.
— While referring to a checklist to make sure that you obtain information that
you know is important, be sure to pay attention to the goings-on at the
facility. Be alert to any visual or verbal triggers that may, for example,
lead you to identify violations or areas in which pollution prevention
techniques could be beneficial.
XI1-6
-------
OVERHEADS
TITLE: Going Beyond Checklists (continued)
KEY POINTS:
— Ensure that, prior to making a site visit, you have reviewed all relevant
materials that your office or other offices may have accumulated about a
company or one of its facilities. Also, familiarize yourself with the
industrial processes you are likely to find at a facility—you can do this by,
among other things, referring to guidance available, such as in The
Commercial Painting Industry (referred to earlier during the Waste
Minimization presentation).
— The importance of "going beyond checklists" cannot be overemphasized.
XII-7
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REGULATORY ANALYSIS
Identify
Applicable
Regulations
Determine If
Regulations
Have Been
Amended
Identify and
Break Down
Necessary
Elements of
Regulation
OVERHEAD #5
TITLE: Regulatory Analysis
KEY POINTS:
Though the material we are about to cover may seem a bit basic, the reason it has
been included in the Institute is that certain attorneys and other enforcement
personnel have noted that a number of enforcement cases in the past were lost
due, at least in part, to the lack of available evidence, or weak evidence,
documenting the relevant elements of a violation. If you do not properly break
down a regulation, ultimately, there may not be a case.
The purpose of reviewing applicable regulations is to refresh the inspector's
knowledge of standards that apply to a facility and what constitutes a violation of
those standards.
Inspectors can determine which regulations apply to a facility in two ways: 1) by
focusing on the purpose of the inspection (i.e., is this inspection required by a
compliance order issued to that specific facility?); and 2) by referencing the
agency's facility file to see what regulations have previously been focused on
with regard to that particular facility.
XII-8
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REGULATORY ANALYSIS
Identity
Applicable
Regulations
Determine If
Regulations
Have Been
Amended
Identify and
Break Down
Necessary
Elements of
Regulation
Identify
Evidence
minimum-
OVERHEAD #6
TITLE: Regulatory Analysis
KEY POINTS:
As inspectors, you need to be aware of regulatory changes that have occurred
following previous inspections and how those amendments may impact on the
compliance status of a facility. Facility activities that may have complied with
standards previously in effect may not comply with current standards.
You may want to check with sources outside your office to determine if the
regulation in question has been amended. Sources that are recommended are
the RCRA/Superfund/UST Hotline, your Regional RCRA contact, or the
RCRA Inspection Manual, which is currently under revision.
XII-9
-------
REGULATORY ANALYSIS
Identify
Applicable
Regulations
Determine If
Regulations
Have Been
Amended
identify and
Break Down
Necessary
Clement* of
Ion
OVERHEAD #7
TITLE: Regulatory Analysis
KEY POINTS:
The purpose of breaking a regulation down into discrete sections or elements is not
only to make the inspection process easier to manage overall, but also to allow for
easier identification of the specific types of evidence that are needed to prove each
element of a violation.
Similarly, in utilizing the RCPP, you need to break down the policy and make sure
you address each aspect of it with respect to a given facility.
Of course, in breaking down a regulation, you may discover that a facility is in
violation of only a portion of a regulation; enforcement actions can be taken for
such partial violations.
In light of everything we discussed, we are now going to look at two examples of
Federal regulatory language in the Participant's Manual, and discuss what will
constitute a violation and what types of evidence will prove a violation.
XII-10
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HISTORY OF THE RCRA CIVIL
PENALTY POLICY
• RCRA Ctvll Penalty Policy (RCPP) Developed
in 1984, but Implemented Inconsistently.
• 1089 Inspector General Report end RCRA
Implementation Study Documented
Inadequacies In RCPP Implementation.
• RCPP Revised In 1990
OVERHEAD #8
TITLE: History of the RCRA Civil Penalty Policy
KEY POINTS:
• The original RCPP was developed to provide guidelines by which penalties
should be assessed. However, in the RCRA Implementation Study (RIS), EPA
determined that the RCPP was implemented inconsistently, resulting in wide
variations in the penalties assessed. The RIS recommended, among other
things, that penalties be made higher.
• In 1989, the Inspector General issued a report finding, among other thing;;, the
following inadequacies in the existing policy:
— Insufficient gravity-based penalties
— No penalties for multi-day violations
— Failure to consider/recover economic benefits of noncompliance
— Failure to apply case-specific factors
— Improper (or non-existent) documentation of penalty calculations.
XII-11
-------
OVERHEAD #8
TITLE: History of the RCRA Civil Penalty Policy (continued)
KEY POINTS:
The revised RCPP was intended to strengthen the elements of the 1984 RCPP by:
— Providing a new system to calculate multi-day penalties
— Requiring use of the BEN computer model to calculate economic benefit
— Adding an "adjustment factor" for environmentally beneficial projects and
litigation risk
— Re-emphasizing mandatory penalty documentation
— Improving the consistency of RCPP application.
XII-12
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IMPORTANCE OF RCPP TO RCRA
ENFORCEMENT
CIVIL
PENALTIES
MSPECTOR
RCRA
ENFORCEMENT
GOALS
OVERHEADS
TITLE: Importance of RCPP to RCRA Enforcement
KEYPCINTS: (RCPP pp. 5-6)
• Civil penalties provide EPA with one of the means to achieve overall RCRA
enforcement.
• Civil penalties contribute to achieving RCRA enforcement by:
— Deterring violations
— Recovering violator's economic benefit from noncompliance
— Expeditiously resolving environmental problems.
XII-13
-------
STATE USE OF THE RCRA CIVIL
PENALTY POLICY
RCRA implementation Study
State Authorization
OVERHEAD #10
TITLE: State Use of the RCRA Civil Penalty Policy
KEY POINTS:
* The RCRA Implementation Study of 1991 recommends that states adopt the
RCPP, or a penalty policy comparable to the RCPP, in order to develop a strong
enforcement program.
• Although EPA will not withdraw authorization from, or refuse to authorize, a
state program solely because it does not have a penalty policy equivalent to the
RCPP, effective deterrence is one characteristic of an adequate state enforcement
program that is necessary to obtain and maintain EPA authorization.
• We hope that all of you here from the states will have had some exposure to the
RCPP or a comparable policy.
XII-14
-------
THE INSPECTOR'S ROLE IN
PENALTY CALCULATION
* Perform Initial Site Visit
• Identity Violations
• Document Violation Information
• Completely and Accurately Fill Out
Worksheets Used to Calculate the Penalty
OVERHEAD #11
TITLE: An Inspector's Role in Penalty Calculation
KEY POINTS:
• "he inspector is the initial contact between EPA and the violator. Usually, he or
} he will also be the first identifier of potential or actual violations. The critical
nature of the inspector's role cannot be overemphasized.
• The penalty is calculated based largely upon the inspector's observations
' depending on the nature of the violation). Accuracy and completeness in all the
nspector's paperwork is essential for a fair and legally supportable penalty
:alculation.
XI1-15
-------
t
PENALTY CALCULATIONS
There Are Three Penalty Calculations:
• Initial Calculation Based on Complaint
• Recalculation Based on New Information
• Final Calculation Reflecting Penalty Agreed
to at the Settlement
OVERHEAD #12
TITLE: Penalty Calculations
KEY POINTS:
The inspector has an impact on all three calculations through the inspection
report. In addition, in some Regions, the inspector does the initial calculation.
The initial calculation is made up of the Gravity-Based, Multi-Day, Economic
Benefit, and Good Faith or History of Non-Compliance Factors. The other
adjustment factors (Willfulness/Negligence, Ability to Pay, Environmental
Projects, Litigation Risk) are usually used at the time of settlement, because the
information is not available at the time of initial calculation.
XI1-16
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COMPONENTS OF THE CIVIL PENALTY
tsss |,
Ora M«l 13 « 38
OVERHEAD #13
TITLE: Components of the Civil Penalty
KEY POINTS: (RCPPp.l)
The Penalty Calculation System established through EPA's RCRA Civil Penalty
Policy consists of:
— Determining a gravity-based penalty for a particular violation, using a
penalty assessment matrix
— Adding a multi-day component to the penalty as appropriate, to account for
a violation's duration
— Adjusting the sum of the gravity-based and multi-day components, up or
down, for case-specific circumstances, and
— Adding to this amount the economic benefit determined to have been
gained through non-compliance.
« Expressed as an equation, the calculation looks like (what you see on the
overhead). Every penalty calculation should address these components.
• In reality, Regions usually calculate the economic benefit of noncompliance
prior to making adjustments. This process will be described later in the session.
• Keep in mind that you must make sure to address each aspect of the RCPP with
respect to any given facility.
—J /
-------
CALCULATING THE GRAVITY-BASED
COMPONENT
PENALTY .
AMOUNT
GRAVITY-
BASED
COMPONENT
I
•
•
MULTI-DAY
COMPONENT
ADJUSTIIEWTS
ADJUSTMENTS
ECONOMIC
BENEF|T
• Gravity-Based Component Considers:
— Potential for Harm
— Extent of Deviation from Requirement.
OVERHEAD #14
TITLE: Calculating the Gravity-Based Component
KEY POINTS: (RCPP pp. 12-19)
• The first step is to calculate the gravity-based component, which is based on
assessment of the potential for harm and a measure of the extent of deviation
from the RCRA requirements.
• The gravity-based penalty amount is for Day 1 of a violation. There are separate
procedures, which will be discussed later, for dealing with violations that extend
beyond one day.
XII-18
-------
DETERMINING PENALTIES FOR
MULTIPLE VIOLATIONS
Separate Penalties Should Be Sought for Each
Violation of a RCRA Requirement That Results from an
Independent Action or Failure to Act.
OVERHEAD #15
TITLE: Determining Penalties for Multiple Violations
KEY POI> TS: (RCPP pp. 19-21)
• Penalties for multiple violations are distinct from multi-day penalties, which
have to do with the longevity of violations.
• The RCPP is clear that penalties should be sought for each violation of a RCRA
•equirement that results from an independent action or failure to act, including
/iolations that occur:
— On different occasions (e.g., improperly manifested waste for two different
shipments)
— In different locations (e.g., violations in two separate container storage
areas for the same facility)
— Of different sections of RCRA (e.g., improperly manifested and improperly
stored waste)
— Of the same section of RCRA (e.g., multiple manifest violations).
Each multiple penalty is calculated separately and the amounts totalled.
XI1-19
-------
OVERHEAD #15
TITLE: Determining Penalties for Multiple Violations (continued)
KEY POINTS: (RCPP pp. 19-21)
• A given charge is substantially distinguishable from another when it requires a
separate element of proof. For example, failure to record weekly inspections in
October would lead to a separate charge for each week not recorded, because
each entry (or blank) is a separate element of proof.
XII-20
-------
DETERMINING POTENTIAL FOR HARM
Potential Harm to Human Health and
Environment Is Based on:
— Risk of Human or Environmental
Exposure to Hazardous Waste
— Adverse Effect Noncompliance
May Have on Regulatory Program
Emphasis Is Placed on Potential for
Harm, Not Actual Harm.
POTENTIAL NON-
FOR HARM COMPLIANCE
WITH
REQUIREMENTS
OVERffiAD#16
TITLE: Determining Potential for Harm
KEY PO1 NTS: (RCPP pp. 13-14)
• Potential for harm has two components: risk of exposure to hazardous waste,
and adverse effect on the RCRA regulatory scheme.
• Potential for harm is weighted heavier than the extent of deviation by a
violator from RCRA requirements.
• The policy takes into account that some violations, while not likely to give rise
directly or immediately to significant risks of contamination, nonetheless
strike at the continued integrity of the RCRA program. Examples of these
violations include:
— Failure to notify as a generator or transporter of hazardous waste, and/or
owner/operator of a hazardous waste facility pursuant to RCRA Section
3010
— Failure to comply with financial assurance requirements
— Failure to submit a timely/adequate Part B application
— Failure to respond to a formal information request
— Operating without a permit or interim status
— Failure to prepare or maintain a manifest.
XII-21
-------
OVERHEAD #16
TITLE: Determining Potential for Harm (continued)
KEY POINTS: (RCPP pp. 13-14)
• Factors to consider in determining potential for harm include: evidence of
releases, evidence of waste mismanagement, adequacy of provisions for detecting
and preventing harm, quantity and toxicity of wastes, likelihood of environmental
transport, and existence, size, and proximity of receptor population.
* Potential for harm is considered major, moderate, or minor.
— Major potential is when the violation poses a substantial risk of exposure of
humans or other environmental receptors to hazardous waste or constituents;
or when the actions have or may have a substantial effect on statutory or
regulatory purposes or procedures for implementing the RCRA program;
— Moderate potential poses a significant risk; and
— Minor potential poses a relatively low risk.
• Potential for harm is determined by the person assessing the penalty. This could
be the inspector or it could be a member of the Case Development Team, using the
information the inspector provided in the inspection report.
XI1-22
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C ATEGORIZING EXTENT OF DEVIATION
MAJOR
MODERATE
MINOR
Substantial Noncompllance
Significant Noncompllance
Minimal Noncompllance
OVERHEAD #17
TITLE: Categorizing Extent of Deviation
KEY PO[NTS: (RCPPp.19)
* Enforcement personnel should categorize the extent of a deviation as minor,
moderate, or major. These categories will have significance in using the penalty
assessment matrix. To assist in identifying into which category non-compliance
falls, use the following guidelines:
— Major noncompliance would occur when most applicable requirements are
NOT met (e.g., failure to have a closure plan).
— Moderate noncompliance would occur when some RCRA requirements,
but not all, are not met (e.g., failure to modify a closure plan, which was
developed, for increased decontamination activities after a spill).
— Minor noncompliance would mean that most requirements have been
followed (e.g., closure plan was developed but omits one step involving
decontaminating machines).
XII-23
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GRAVITY-BASED PENALTY
ASSESSMENT MATRIX
t
Extent of Deviation
Potential
for
Harm
MAJOR
MODERATE
, ...'.',, ::;.;i;v:.!.:v. ,. •.;.-•...;..
MINOR
MAJOR
$25,000
to
20,000
$10,999
to
8,000
$2,999
to
1,500
MODERATE
$19,999
to
15,000
$7,999
to
5,000
$1,499
to
500
MINOR
$14,999
to
11,000
$4,999
to
3,000
$499
to
100
OVERHEAD #18
TITLE: Gravity-Based Penalty Assessment Matrix
KEY POINTS: (RCPP pp. 18-19)
* The penalty assessment matrix makes calculating the gravity-based component
fairly straightforward after the previously-discussed assessments have been
made.
• The exact penalty is determined by enforcement personnel based on the gravity
of the violation.
• The inspector assists in this process by gathering data and communicating the
observed violations on the worksheets submitted after the inspection.
* The selection of the exact penalty amount from the range within each cell is left
to the discretion of the Case Development Team, which is composed of different
people from state to state and Region to Region, usually attorneys and technical
program staff.
XII-24
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CALCULATING MULTI-DAY
PENALTIES
PENALTY
AMOUNT
GRAVITY-
BASED 4
COMPONENT
MULTI-DAY
COMPONENT
I
± ADJUSTMENTS
Multi-Day Component Reflects Duration of a Violation.
OVERHEAD #19
TITLE: Calculating Multi-Day Penalties
KEY PO [NTS: (RCPP pp. 19-25)
• The second step in the process is to calculate the multi-day component for
continuing violations. This is based on the duration of the violation, rather than
the number of violations.
XII-25
-------
DETERMINING PENALTIES FOR
MULTI-DAY VIOLATIONS
t
MULTI-DAY MATRIX
Extent of Deviation
Potential
for
Harm
j
MAJOR
MODERATE
MINOR
MAJOR
$5,000
to
1,000
$2£00
to
400
$800
to
100
MODERATE
$4,000
10
750
$1,600
to
250
$300
to
100
MINOR
$3,000
to
550
$1.000
to
150
$100
OVERHEAD #20
TITLE: Determining Penalties for Multi-Day Violations
KEY POINTS: (RCPP pp. 22-25)
• RCRA authorizes daily assessment of penalties on a continuing violation. The
equation is expressed as:
Penalty Amount x Duration of Violation - Multi-Day Component
• Assessment of multi-day penalties begins on Day 2 of a continuing violation.
• The multi-day matrix makes calculating penalties for multi-day violations fairly
straightforward.
• Matrix cell is from 5% of low end to 20% of high end of corresponding
gravity-based cell, with minimum penalty of $100.
• You need factual evidence to support multi-day penalties, but reasonable
assumptions are permitted. For example, you may, in some cases, assume the
violation began on the effective date of the violated requirement. For example,
for a facility not in compliance with B1F requirements, the inspector may assume
that the violation began on the date the BIF rule went into effect.
XI1-26
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DETERMINING WHETHER MULTI-DAY
PENALTIES ARE MANDATORY,
PRESUMPTIVE, OR DISCRETIONARY
MULTI-DAY MATRIX
Extern of Deviation
Potential
lor
Harm
MAJOR
MODERATE
MINOR
Major
/ f / f f
V 400 S^
* * *.* •* •-" •" *.' •' •„* •" '.
..\ $soo :•. •.
to '-.' '.
•'. 100 >. V
Moderate
\*v?\\>
x'« 750 vV
/ f * , t 4
':•. iiieoo^/
'*• 1* *V •**.""
$300
to
100
Minor
•• ••n.booVv-.-v
'• ."•' to >'•.">•'•;
$1.000
to
150
$100
KEY:
£7| Mandatory
£2 Presumptive
P"j Discretionary
#21
TITLE: Determining Whether Multi-Day Penalties Are Mandatory, Presumptive, or
I )iscretionary
KEY POINTS: (RCPP pp. 23-25)
• New to the revised RCPP is the methodology for determining whether multi-day
penalties are mandatory, presumptive, or discretionary. To do this, determine
gravity-based designation. Then multiply penalty amount by the number of days
the violation continues (beginning on Day 2). Multi-day penalties for day 181 +
are always discretionary. Multi-day penalties for up to $25,000/day per violation
may be proposed in appropriate cases.
• The mandatory designation in "highly unusual cases" may be waived with prior
Headquarters consultation and documentation in the File. For example, a
violation of a medical waste tracking act that, although it was in effect at the time
of the violation, is no longer in effect at the time of the penalty calculation,
would be considered an unusual case.
• The "presumption" in the 2nd tier of cases may be overcome with documentation
in the case file.
• In "discretionary" cases, document the decision in the case file. Documentation
might include an explanation that a penalty without a multi-day component is
sufficient to deter the violator and other potential violators.
XII-27
-------
OVERHEAD
TITLE: Determining Whether Multi-Day Penalties Are Mandatory, Presumptive, or
Discretionary (continued)
KEY POINTS: (RCPP pp. 23-25)
* To make a determination, look at the RCPP goals, the seriousness of violation in
regard to other violations in the same cell, promptness of remediation,
cooperation of facility, size/sophistication of violator, and length of violation.
XII-28
-------
MULTIPLE/MULTI-DAY VIOLATIONS-
SPECIAL CASES
* Multiple Violations Resulting from a Single
Violation
• Treatment of Certain Multiple Violations as
Multi-Day Violations
OVERHEAD #22
TITLE: N' ultiple/Multi-Day Violations—Special Cases
KEY POI?rrS: [RCPP pp. 22-23,89 (Footnote)]
• The RCPP provides some discretion for enforcement personnel to forego
separate penalties in special cases to produce more equitable penalty
calculations. A special case could include a situation where multiple violations
resulting from a single transgression produce distinguishable violations and
result in a penalty amount which is disproportionately high. For example, failure
to make a hazardous waste determination will violate storage, manifest, and
inspection requirements. However, one penalty could be assessed, not four.
• Multiple violations that are similar and resemble multi-day violations may be
treated as multi-day violations. For example, failure to sign the manifest for five
waste shipments could be assigned one penalty at the gravity-based rate, and four
penalties at the lower multi-day rate. (For more information on these types of
violations, see RCPP p. 89, footnote 13.)
X1I-29
-------
CALCULATING ECONOMIC BENEFIT ™
OF NONCOMPLIANCE
PENALTY „ jsE' „ MULTVDAY ADJUSTMENTS +
AMOUNT COMPONENT COMPONENT * ADJUSTMENTS +
• Delayed Costs and Avoided Costs
• Cumulative.
OVERHEAD #23
TITLE: Calculating Economic Benefit of Noncompliance
KEY POINTS: (RCPP pp. 25-30)
• Although shown as the final step on the chart, Regions generally calculate the
economic benefit prior to making any adjustments.
• Economic benefit consists of delayed costs and avoided costs of compliance.
• Recovering any significant economic benefit that a violator enjoys from
noncompliance is mandatory under the RCPP unless:
— The economic benefit is an insignificant amount (<$2,500)
— There are compelling public concerns mitigating against taking a case to
trial, should that become necessary
— It is unlikely that EPA will be able to recover the economic benefit in
litigation (litigation risk)
— The company has documented an inability to pay the penalty.
• Economic benefit is cumulative, meaning that if there are several violations that
are individually less than $2,500. but cumulatively equal $2,500 or more,
economic benefit must be assessed for all the violations.
XII-30
-------
OVERHE\D#23
TITLE: Calculating Economic Benefit of Noncompliance (continued)
KEYPOIVTS: (RCPP pp. 25-30)
• Types of activities generally producing economic benefit significant enough to
recover benefits include: ground water monitoring, financial assurance
requirements, closure/post-closure, surface impoundment retrofitting, improper
land disposal of restricted wastes, clean up of discharges, Part B submittals,
minimum technology requirements.
• Use the BEN computer model to calculate economic benefits from
noncompliance. Decisions regarding economic benefit should be documented in
the case file.
• The information used in the BEN model is provided by inspectors on their
submitted worksheets.
XII-31
-------
CALCULATING THE ADJUSTMENT
FACTORS
PENALTY
AMOUNT
GRAVITY-
BASED
COMPONENT
MULTMMY
COMPONENT
DJUS1NBI
ADJUSTNBfTa
ECONOMIC
BENEFIT
Adjustments Reflect the Individual Circumstances of the Violator
OVERHEAD #24
TITLE: Calculating the Adjustment Factors
KEY POINTS: (RCPP pp. 3CMIO)
* The final step for Regions is to calculate any adjustments to the penalty
appropriate to circumstances of the violation or violator. The RCPP recognizes
six adjustment factors. These include:
— Good Faith/Lack of Good Faith
— Willfulness/Negligence
—» History of Noncompliance
— Ability to Pay
— Environmental Projects
— Other Unique Factors (Litigation Risks).
• Prior to applying the adjustment factors, enforcement personnel should
recalculate the penalty amount where new information has become available
since the original calculation was done. The new information may affect the
gravity-based and/or economic benefit components.
• Good-faith and History of Non-Compliance are the only two factors taken into
account at the time of the initial penalty calculation. The other adjustment
factors are taken into account at the settlement stage and are reflected in the final
penalty.
XII-32
-------
APPLYING THE ADJUSTMENT
FACTORS
PENALTY CALCULATION
ADJUSTMENT
OVERHEAD #25
TITLE: Applying the Adjustment Factors
KEY POINTS: (RCPP pp. 32-33)
• I Enforcement personnel should apply appropriate adjustment factors to the total
< f gravity-based and multi-day penalty amounts; adjustment factors do not apply
to economic benefit from noncompliance.
• Adjustment factors may increase, decrease, or have no effect on the penalty
5 .mount. They may be applied to the sum of the gravity-based and multi-day
components of penalty or they may be applied cumulatively.
• !iach adjustment factor is limited to 25% of the total being adjusted in ordinary
i:ircumstances, 26%-40% in unusual circumstances. For example, a plant that
lad fully intended to comply, and had only one violation due to an employee not
icting in capacity, might be considered to have unusual circumstances and,
herefore, have its penalty adjusted downward.
• ^itigation risk and inability to pay may cause the penalty amount to vary up to
100%.
XII-33
-------
GOOD FAITH EFFORTS TO COMPLY/
LACK OF GOOD FAITH
""1
* Good-Faith Efforts of Violation to Comply May
Adjust Penalty Downward
• Lack of Good-FaHh May Adjust Penalty Upward
• No Downward Adjustments Should Be Made
For:
— Merely Coming Into Compliance After
Detection
— Claim of Lack of Knowledge of the Law.
OVERHEAD #26
TITLE: Good Faith Efforts to Comply/Lack of Good Faith
KEY POINTS: (RCPP pp. 33-34)
• Now let's focus on the individual adjustment factors.
• Good-faith efforts should be taken into account at the initial penalty assessment
stage. In the complaint penalty, consideration of good faith is required under
§3008a.
• Evidence of good faith efforts to comply may adjust the penalty downward. A
violator may demonstrate good faith by:
— Reporting noncompliance before EPA discovers a violation
— Remedying noncompliance prior to EPA detection
— Good-faith reliance on written statements by EPA or a State agency.
• Lack of good faith may result in adjustment of the penalty upward (e.g., failing
to achieve compliance after detection).
• Lack of knowledge of pertaining laws can not be used as a reason to adjust
penalties downwards.
XII-34
-------
DEGREE OF WILLFULNESS
AND/OR NEGLIGENCE
unw
4-
WILLFULNESS/NEGLIGENCE
PENALTY CALCULATION
,1. l.i.Li. l.i.l.*. l.t.Li. L.-l.i. l.i.l j. l.t.l.i. l.i. I a. l.iJ.i. Li.l.i. l.i-t.i. 1.1.1.
C
LACK OF WILLFULNESS
OVERHEAD #27
TITLE: E egree of Willfulness and/or Negligence
KEY POINTS: (RCPP pp. 34-35)
• Evidence of willfulness may adjust a penalty upward. There are several factors
to consider as evidence of willfulness:
— Violator's control over the events constituting the violation/remedying
violator
— The foreseeability of the events constituting the violation
— Whether the violator knew or should have known of the hazards involved
— Whether the violator knew or should have known of the legal requirement
violated (upward adjustment only).
• Alternatively, lack of willfulness may adjust the penalty downward. For
instance, if a violation occurred due to a minimal amount of carelessness, it
would be appropriate to lower the penalty amount.
XI1-35
-------
HISTORY OF NONCOMPLIANCE
•niiiTiMBiii
4-
HISTORY OF NONCOMPLIANCE
PENALTY CALCULATION
Q»iimM a a J£
OVERHEAD #28
TITLE: History of Noncompliance
KEY POINTS: (RCPP pp. 35-36)
• Evidence of a history of noncompliance may result in adjustment of a penalty
upward. Look for factors such as:
— Similarity of a previous violation to the one in question and how recently it
occurred
— The number of previous violations and pattern of disregard for the
environment.
• For violations by corporate divisions, subsidiaries, or new ownership, look for
who had control and/or oversight responsibility. Assume that if the same
corporation was involved in prior violations, there is a history of noncompliance.
* The history of non-compliance is generally taken into account in the complaint
penalty.
XII-36
-------
ABILITY TO PAY
-fr
UN mom
CM*Di Mfewnwilwtf
H 1 2B of 3£
OVERHEAD #29
TITLE: AliilitytoPay
KEY POINTS:
* The violator's ability to pay is taken into account at the settlement stage.
• Evidence of inability to pay may adjust a penalty downward, but the burden is on
t ic violator to prove that inability (e.g., by providing copies of tax returns).
• I Enforcement personnel must have adequate documentation of inability to pay
tefore adjusting the penalty downward.
• Payment alternatives should be considered in the following order:
— Installment payment plan with interest
— Delayed payment schedule with interest
— Penalty reduction as a last recourse.
• "he ABEL computer model is used to analyze inability to pay claims. Each
Kegion should have a BEN/ABEL expert who has the model if inspectors need
i ccess to do their own adjusting.
XII-37
-------
ENVIRONMENTAL PROJECTS
t
uuuRmm
A
PENALTY CALCULATION
ENVIRONMENTALLY BENEFICIAL PROJECTS
OVERHEAD #30
TITLE: Environmental Projects
KEY POINTS: (RCPP pp. 37-39)
• Environmentally-beneficial projects are taken into account at the settlement stage.
• Environmentally beneficial projects engaged in by a violator may lead to
adjustment of the penalty downward:
• Projects must:
— Go beyond mere compliance
— Be related to the cause of the violation or the resulting environmental harm.
— Conform to EPA criteria that are laid out in the 2/12/91 Policy on the Use of
Supplemental Environmental Projects in Enforcement Settlements. There are
five categories of projects that will be considered as potential Supplemental
Environmental Projects:
•• Pollution prevention projects
•• Pollution reduction projects
•• Projects remediating adverse public health or environmental consequences
•• Environmental auditing projects; and
•• Enforcement-related environmental public awareness projects.
XII-38
-------
OVERHEAD #30
TITLE: Environmental Projects (continued)
KEY POINTS: (RCPP pp. 37-39)
• For specific examples, you should review the superseding cross-media guidance
on environmental projects which supersedes the section in the RCPP on SEPs.
• Economic benefit and substantial gravity-based penalties should still be collected.
XII-39
-------
OTHER UNIQUE FACTORS
«a>R«m
a
a
a
OVERHEAD #31
TITLE: Other Unique Factors
KEY POINTS: (RCPP pp. 39-40)
• Other factors are taken into account at the settlement stage.
• Adjustment must be made on a case-by-case basis to reflect individual
circumstances.
• This determination is usually made by an attorney; however, the inspection report
has a great impact on the strength of the case. If the inspector, for example, does
not sufficiently record evidence of a continung violation, no multi-day penalty
can be assessed without being subject to litigation risk.
• Litigation risks represent the final adjustment factor for a penalty. Consider:
— Government resources needed to litigate
— Strengths of government's legal arguments
— Strengths of violator's defense(s)
— Strength of the evidence
— Precedential value of case.
-------
OVERHE\D#31
TITLE: Other Unique Factors (continued)
KEYPOI^JTS: (RCPP pp. 39-40)
* Enforcement personnel must document the legal analysis underlying the litigation
risk adjustment.
• Penalty usually should still recoup economic benefit and act as an economic
disincentive to violate, regardless of individual circumstances.
XII-41
-------
SUMMARY
Information Gathered by Inspectors Is Used to
Determine:
— Gravity-Based
— Multi-Day Com
— Economic Ben
Component
Component
Benefit
— Any Adjustment Factors.
Penalties Are Assessed Using Information
Provided by Inspectors.
OVERHEAD #32
TITLE: Summary
KEY POINTS:
Although penalties may be assessed by the Case Development Team, the
inspector plays a critical role in making the RCPP effective. The information
gathered and reported by inspectors is crucial to the proper application of the
RCPP and strength of the penalty calculation.
The actual penalties are calculated by the Case Development Team, using the
information provided by the inspectors, or the inspector alone may calculate the
initial complaint penalty.
The RCPP requires that penalty data be based on documentation, so the
inspection reports the inspectors file are of vital importance.
XII-42
-------
Ch. I
if
i .Ij,
a^n
lH&te
tdition)
I
requirn |
plan be submiu«
•ermit application.)
Office of Management
control number lose.
Ag«ney
19, 1980, as amended at
2, 1981: SO FR 4514, ju
637, Nov. 7, 1886; 53 PR
.8; 54 FR 33394. Aug. U
5. June 1, 1990: Si PR
90: 57 FR 8088, Mar, I
or operator must pre-
ving entry, and mini-
lity for the unauthor-
-sons or livestock onto
tion of his facility.
•monstrate to the Re-
ctor that:
mtact with tti e waste,
quipment within the
f the facility will not
ing or unauthorized
;ock which may enter
n of a facility; and
ce of the waste or
le unknowing or unau-
if persons or livestock
portion of a facility,
a violation ol: the re-
-v, -^^,—, ' requira
ow.-ator who wishes u
tration referred to above
art B of the permit appll-
owner or operator hu
essful demonstration
TS(a)(l)and<2)ofthU
y must have:
r surveillance system
monitoring or surveil-
> or facility personnel)
usly moniton. and con-
) the active portion of
icial or natural barrier
good repair or a fence
a cliff), which com-
ds the active portion of
i
to control entry, at all
the gates or other en-
ictive portion of the !»•
. attendant, television
locked entrance, or con-
access to the faculty).
__»• THB reouirements of paragraph
«^T^ .ertiorTare satisfied if the facility
l»'rf^5fr;.,hiCh the active portion is
"SS^ with the requirement*
SSRSxlJor (2) of this section.]
is the owner or operator has
• ade a successful demonstration
« Oder paragraphs (a)(l) and (2) of this
• teUon. » si*11 with the legend.
• Danger—Unauthorized Personnel
lleep Out", must be posted at each en-
trance to the active portion of a facili-
ty and at other locations, in sufficient
i lumbers to be seen from any ap-
imch to this active portion. The
Itfend must be written in English and
ID any other language predominant in
ib« area surrounding the facility (e.g..
; 'acuities in counties bordering the Ca-
ladian province of Quebec must post
rignt In French; facilities in counties
Bordering Mexico must post signs in
Spanish), and must be legible from a
Alliance of at least 25 feet. Existing
rifns with a legend other than
-Danger—Unauthorized Personnel
Keep Out" may be used if the legend
oh the sign indicates that only author-
toed personnel are allowed to enter the
active portion, and that entry onto the
active portion can be dangerous.
(OmmenC See } 264.117(b> for discussion of
Mcurtty requirements at disposal facilities
Airing the post-closure care period.]
Unproved by the Office of Management
and budget under control number 2050-
•011)
(41 FA 33221. May 19. 1980, as amended at
44 FR 2848. Jan. 12. 1981; 48 FR 14294. Apr.
i, 1M3; SO FR 4514. Jan. 31.1985}
IM4.15 General inspection requirements.
lia) The owner or operator must in-
Ipeet his facility for malfunctions and
•Httioratlon, operator errors, and dis-
•faarges which may be causing—or
M9 lead to—U) release of hazardous
•»Ut« constituents to the environment
* (3) a threat to human health. The
JjKner or operator must conduct these
• »«g«ctions often enough to identify
,.pr*«ms in time to correct them
they harm human health or
§264.15
(bxi) The owner or operator must
develop and follow a written schedule
for inspecting monitoring equipment,
safety and emergency equipment, se-
curity devices, and operating and
structural equipment (such as dikes
and sump pumps) that are important
to preventing, detecting, or responding
to environmental or human health
hazards.
(2) He must keep this schedule at
the facility.
(3) The schedule must Identify the
types of problems (e.g., malfunctions
or deterioration) which are to be
looked for during the inspection (e.g..
inoperative sump pump, leaking fit-
ting, eroding dike, etc.).
(4) The frequency of inspection may
vary for the items on the schedule.
However, it should be based on the
rate of deterioration of the equipment
and the probability of an environmen-
tal or human health incident if the de-
terioration, malfunction, or any opera-
tor error goes undetected between in-
spections. Areas subject to spills, such
as loading and unloading areas, must
be inspected daily when in use. At a
minimum, the inspection schedule
must include the items and frequen-
cies called for in {$264.174, 264.193.
264.195, 264.226, 264.254, 264.278,
264.303, 264.347, 264.602. 264.1033.
264.1052, 264.1053. and 264.1058, where
applicable.
[Comment: Part 270 of this chapter requires
the inspection schedule to be submitted
with part B of the permit application. EPA
will evaluate the schedule along with the
rest of the application to ensure that it ade-
quately protects human health and the en-
vironment. As part of this review. EPA may
modify or amend the schedule as may be
necessary.]
(c) The owner or operator must
remedy any deterioration or malfunc-
tion of equipment or structures which
the inspection reveals on a schedule
which ensures that the problem does
not lead to an environmental or
human health hazard. Where a hazard
is imminent or has already occurred,
remedial action must be taken immedi-
ately.
(d) The owner or operator must
record Inspections in an inspection log
or summary. He must keep these
records for at least three years from
'•• "•'••**,
161
-------
§264.16
the date of inspection. At a minimum.
these records must include the date
and time of the inspection, the name
of the inspector, a notation of the ob-
servations made, and the date and
nature of any repairs or other remedi-
al actions.
(Approved by the Office of Management
and Budget under control number 2050-
0012)
MS FR 33221, May 1ft. 1*80, as amended at
48 FR 14294. Apr. 1. 1983: 50 FR 4514. Jan.
31,1985; 57 FR 3486. Jan. 29.1992]
EmcncE DATE NOTE At 57 FR 3486. Jan.
29. 1992. i 264.15 was amended by revising
paragraph • * *
<4> The frequency of inspection may vary
for the items on the schedule. However. It
should be based on the rate of possible dete-
rioration of the equipment and the proba-
bility of an environmental or human health
incident if the deterioration or malfunction
of any operator error goes undetected be-
tween inspections. Areas subject to spills.
such as loading and unloading areas, must
be inspected dally when in use. At a mini-
mum, the inspection schedule must Include
the terms and frequencies called for in
II 264.114. 264.194. 264.226. 264.253, 204.254.
264.303. 264.347. 264.602. 264.1033. 264.1052.
264.1053. and 264.1058. where applicable.
S 264.16 Personnel training.
(a)(l) Facility personnel must suc-
cessfully complete a program of class-
room instruction or on-the-job train-
ing that teaches them to perform
their duties in a way that ensures the
facility's compliance with the require-
ments of this part. The owner or oper-
ator must ensure that this program in-
cludes all the elements described in
the document required under para-
graph (d)(3) of this section.
(Comment Part 270 of this chapter requires
that owners and operators submit with part
B of the RCRA permit application, an out-
line ol the training program used (or to be
used) at the facility and a brief description
of how the training program is designed to
meet actual Job tasks.)
40 CFR Ch. I (7-1-92 Edition)
(2) This program must be directed
by a person trained in hazardous
waste management procedures, and
must include instruction which teach-
es facility personnel hazardous waste
management procedures (including
contingency plan Implementation) rel-
evant to the positions in which they
are employed.
(3) At a minimum, the training pro-
gram must be designed to ensure that
facility personnel are able to respond
effectively to emergencies by familiar-
izing them with emergency proce-
dures, emergency equipment, and
emergency systems, including, where
applicable:
(i) Procedures for using, inspecting,
repairing, and replacing facility emer-
gency and monitoring equipment;
(U) Key parameters for automatic
waste feed cut-off systems;
(111) Communications or alarm sys-
tems:
(iv> Response to fires or explosions;
(v) Response to ground-water con-
tamination incidents; and
(vi) Shutdown of operations.
(b) Facility personnel must success-
fully complete the program required
in paragraph (a) of this section within
six months after the effective date of
these regulations or six months after
the date of their employment or as-
signment to a facility, or to a new posi-
tion at a facility, whichever is later.
Employees hired after the effective
date of these regulations must not
work in unsupervised positions untQ
they have completed the training re-
quirements of paragraph (a) of thtt
section.
(c) Facility personnel must take part -<
in an annual review of the initial
training required in paragraph (s) of
this section.
(d) The owner or operator must
maintain the following documents and
records at the facility: "
(1) The Job title for each position*
the facility related to hazardous wr
management, and the name of the
ployee filling each Job:
(8) A written Job description
each position listed under P»ra«T*S*!o
(d)U> of this section. This descripUg;
may be consistent in its degree of
ificity with descriptions for other
lar positions in the same company w.
orbargaini
^™-,' the requisit
*&U)uar qualification
yees assigned t
> A written de
I amount of be
ling trainii
_t person t i
..•paragraph
i Records ttw
or Job
• paragraph
section has
by.fac
(Training re
_ must be
s facility; trair
oyees must
t years fronr.
_t worked a
.training rec
Itransl
i last
by th<
F •Budget und<
I)
t FR 33221, Us
I FR 3*48, Jan.]
}••*»
JOF*>-451
m
s) The owne
sautionsto
tor reaction
te. This wi
I protected)
^reaction in<
.open flame
f, hot s
(static.
tgpontane
'produclni-
1 Jadlant h
wast*
'oroper
Uudopen
locatioi
_
, .Where
lOTdisp
.or mix
Jble
,tak
iwhi<
162
-------
ii
-
I
§ 26530
which could result Irotn fires, explo-
sions, or releases at the facility.
(b) Where State or local authorities
decline to enter into such arrange-
ments, the owner or operator must
document the refusal in the operating
record.
Subport D—Contingency Plan and
Emergency Procedures
§265.50 Applicability.
The regulations in this subpart
apply to owners and operators of all
hazardous waste facilities, except as
i 265.1 provides otherwise.
§265.51 PurpOK and implementation of
contingency plan.
(a) Each owner or operator must
have a contingency plan for his facili-
ty. The contingency plan must be de-
signed to minimize hazards to human
health or the environment from fires.
explosions, or any unplanned sudden
or non-sudden release of hazardous
waste or hazardous waste constituents
to air. soil, or surface water.
(b) The provisions of the plan must
be carried out immediately whenever
there Is a fire, explosion, or release of
hazardous waste or hazardous waste
constituents which could threaten
human health or the environment.
(Approved by the Office of Management
mnd Budget under control number 2050-
0002)
(45 FR 33232, May 19. 1980. as amended at
SO FR 4514. Jan. 31, 1885)
9 2(5.52 Content of contingency plan.
(a) The contingency plan must de-
scribe the actions facility personnel
must take to comply with it 265.51
and 265.56 in response to fires, explo-
sions, or any unplanned sudden or
non-sudden release of hazardous waste
or hazardous waste constituents to air.
soil, or surface water at the facility.
(b) If the owner or operator has al-
ready prepared a Spill Prevention,
Control, and Countermeasures (SPCC)
Plan in accordance with pan 112 of
this chapter, or part 1510 of chapter
V, or some other emergency or contin-
gency plan, he need only amend that
plan to incorporate hazardous waste
management provisions that are suffi-
40 CFR Ch. I (7-1-92 Edition)
cient to comply with the requirements
of this part.
(c) The plan must describe arrange-
ments agreed to by local police depart-
ments, fire departments, hospitals.
contractors, and State and local emer-
gency response teams to coordinate
emergency services, pursuant to
i 265.37.
Thei
(c) Tht
design, co
.•»•• tenance. c
;: way that
;t tentialfor
*; ofhazardc
•^. constituer
"' necessary
(d)The
"?. ton chan;
(e)The
Changes.
CApproved
and Budg<
•002)
[48 FR 33
MFR4S1'
f
t
*s
•'&
1265^5 I
At all •
one «mp
premises
•pond tc
the facil.
thne) wi
ordinatii
measure
must be
aspects
Plan, al
the faci
teristlcs
of all r<
the fac
penori
'Commit
autthe
lactor*
-------
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Revised RCRA Civil Penalty Policy Highlights
0MECTIVE: Provide guidelines to assess penalties and improve overall consistency
^P of RCPP application.
Components of the penalty calculation
Gravity-Based
Includes;:
• Asse ssment of Po ential for Harm, which is made up of two things:
- Risk of exposure
- Adverse effect on the RCRA regulatory scheme.
[Emphasis i; placed on the potential for harm, not actual harm.]
• Extent of deviatio n from the RCRA requirements is classified as either:
- Major
- Moderate
- Minor
The Gravity-Based penalty amount is for Day 1 of a violation. Separate penalties should be sought for
each violation of RC *A.
Multi-Day
Multi-Day Component = Penalty Amount x Duration of Violation
on the duntion of the violation, rather than the number of violations
of multi-day penalties begins on Day 2 of a continuing violation.
Economic Benef t
Economic Benefit = Delayed costs + Avoided costs of compliance
« Cumulative
• Recovering significant economic benefit is mandatory in most cases.
• The BEN compiler model is used to calculate economic benefits.
Adjustments
• Good-Faith
• History of Noncompliance
« Willfulness *
• Ability to Pay *
• Environmental p rejects *
* Other Unique FJ ctors (Litigation Risks) *
Gravity-Based. Multi-Day, and Economic Benefit penalties are calculated at the time of the initial
penalty calculation, as are the Good-Faith and History of N on-Compliance adjustments. The other
fcur adjustment*, indicated by asterisks, are calculated at the settlement stage, because relevant
information is usually not available until then.
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CALCULATING RCRA PENALTIES, IN A NUTSHELL ...
Pursuant to the 1990 RCRA Civil Penalty Policy (RCPP), the
penalty fcr a violation is calculated in four steps. They are:
1} -a- determine the appropriate gravity-based penalty
(GBP) based on the "probability of harm" (actual harm;
potential harm; harm to regulatory program) posed by
the violation, and its "extent of deviation from
regulatory requirements";
-b- determine penalty point in appropriate matrix cell;
-c- assess multiple GBPs for separate violations of the
same rule (where appropriate);
2} calculate a multiday component to address the violation's
duration (if appropriate);
3) adjust the overall gravity-based penalty based on
individual factors; and
4} cc.lculate and recapture the "economic benefits of
noncompliance" obtained by the violator.
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-------
November 25, 1992
SUMMARY SHEET: RCRA ADMINISTRATIVE PENALTIES (1989-1992)
The following OSWER figures on RCRA administrative penalties
over the past four fiscal years illustrate the positive impact of
the 1990 RCRA Civil Penalty Policy (RCPP) is having on RCRA
enforcement.
3008 (a) Adiain. Complaints
Total Proposed Penalties
Average Proposed Penalties
Highest Prsposed Penalty
Total Numbsr of Cases
py '89
PY'90
FY'91
PY'92
$13.1 M
$75 T
$6.3 M
175
$13.8 M
$101 T
$950 T
137
$57.0 M
$386 T
$5.5 M
148
$67 M
$477T
S15.6M
145
3008(a) Coasent/Final Orders
Total Penalties Assessed $2.5 M $2.9 M
Average Penalties Assessed $17 T $25 T
Highest Penalty Assessed $138 T $550 T
Total Number of Cases 143 110
$7.5 M S7.7M
$35.7 T* $77 T
$3.4 M :•-••--
107
excludes largest penalty assessed
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October 1, 1992
i
RCRA ADMINISTRATIVE PENALTY ENFORCEMENT:
ILLUSTRATIVE CHIEF JUDICIAL OFFICER
AND ADMIN. LAW JUDGE DECISIONS *
* with selected civil decisions
- prepared by: Jon Silberman, OE-RCRA -
Table of Contents
RCRA STATTSTORY PENALTY PROVISIONS 1
DETERRENCE 3
SEPARATE PENALTIES FOR SEPARATE VIOLATIONS 5
GRAVITY -BiLSED PENALTY/ADJUSTMENT FACTORS "HIERARCHY" 7
GRAVITY O'S THE VIOLATION - "POTENTIAL" FOR HARM
GRAVITY 0:? THE VIOLATION - RISK TO HUMANS AND THE ENV
GRAVITY 0:? THE VIOLATIONS - HARM TO THE RCRA PROGRAM
EXTENT OF DEVIATION :.;
MULTIDAY PENALTIES
ECONOMIC BENEFIT OF NONCOMPLIANCE
ADJUSTMENT FACTORS: GOOD FAITH/LACK OF GOOD FAITH
DEGREE OF WILLFULNESS AND/OR NEGLIGENCE
HISTORY CF NONCOMPLIANCE
ABILITY 10 PAY •
OTHER UNIQUE FACTORS
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-1-
NOTICE: RCRA decisions are "starred."
Note: This outline summarizes some of the three hundred-
plus RCRA administrative decisions accessible through the
Enforcement Document Retrieval System (EDRS). The decisions
exemplify how the Agency's Presiding Officers apply the
factors in the RCRA Civil Penalty Policy (RCPP) to assess
appropriate penalties. It is not possible to reproduce in
an outline of this magnitude all of the case-specific
factors and nuances that may have influenced the Judges in
reaching their decisions. Review the full decision before
citing it as precedent in litigation.
The "Notes" in this outline provide useful background
information on interpreting the RCRA penalty criteria and
the cited cases. Nevertheless, They do not necessarily
state KPA policy, and should not be cited as representing
official EPA positions.
RCRA STATUTORY PENALTY PROVISIONS:
1. Section i008(a)(3) [42 U.S.C. § 6928{a)(3)]:
Penalty: $25,000 per day of noncompliance for each
violation of the requirements of Subtitle C cf
RCRA - assessed in an order.
Statutory Factors: "seriousness of the violation"
"any good faith efforts to comply"
2. Section 3008(c) [42 U.S.C. § 6928(c)]:
Penalty: $25,000 for each day of continued non-compliar.
of a compliance order.
Statutory Factors: None.
3. Section 2008(o) [42 U.S.C. § 6928(g)]:
Penaltyi $25,000 for each violation of the requirements
Subtitle C of RCRA with each day constituting
separate violation. This penalty is assessed :
court.
Statutory Factors: None.
4. Section 3008 (hi (2) [4'2 U.S.C. § 6928{h)(2)]:
Penalty: $25,000 for each day of noncompliance with a
corrective action order.
Statuuory Factors: None.
-------
-2-
5. Section 3013(e) [42 U.S.C. § 6934(e)]:
Penalty: $5,000 for- each day during which the defendant
fails to comply with a § 3013 order.
Statutory Factors: None.
6. Section 7003(b) [42 U.S.C. § 6973(b)]:
Penalty: $5,000 for each day of violation of a § 7003
imminent and substantial endangerment
administrative order.
Statutory Factors: None.
7. Section 9006(a)(3) [42 U.S.C. § 6991e(a)(3)]:
Penalty: $25,000 for each day of continued non-compliance
with an UST administrative order.
Statutory Factors: None.
8. Section 9006(d)(1) [42 U.S.C. § 699le(d)(1)]:
Penalty: $10,000 for each tank for which notification is
knowingly not given or for which false information
is submitted.
Statutory Factors: None.
9. Section 9006(d> (21 42 U.S.C. § 6991e(d)(2)3:
Penalty: $10,000 for each tank for each day of violation of
specified UST regulatory requirements.
Statutory Factors: None.
10. Section llQQS(a) (2) [42 U.S.C. § 6992d(a) (2)]:
Penalty: $25,000 per day of noncompliance with the
requirements of the Medical Waste Tracking Act for
each violation. Assessed through an
administrative order.
Statutory Factors: "seriousness of the violation"
"good faith efforts to comply"
11. Section 11005(a)(41 [42 U.S.C. § 6992d(a)(4)]:
Penalty: $25,000 for each day of continued noncompliance
with a Medical Waste Tracking Act administrative
order.
Statutory Factors: None.
12. Section 11005(d) {42 U.S.C. § 6992d(d):
Penalty: $25,000 for each violation of the requirements of
the Medical Waste Tracking Act with each day of
violation constituting a separate violation.
Assessed by a court.
Statutory Factors: None.
f
-------
-3-
DETERRENCE:
*** United States v. T & S Brass and Bronze Works. Inc.. 681 F.
Supp. 314, 322 (D.S.C. 1988), affd. 865 F.2d 1261, 28 EnVt Rep.
Cas. (BNA) 3649 {4th Cir. 1988): Defendant T & S was ordered to
pay a $194,COO penalty ($l,000/day for 194 days of LOIS
violations). The Court held: "Assessment of the amount of a
civil penalty is committed to the informed discretion of the
Court. (Citations omitted). In exercising this discretion, the
Court should give effect to the major purpose of a civil penalty:
deterrence. See United States v. Phelps Dodge Industries. Inc..
589 F. Supp 1340, 1358 (S.D.N.Y. 1984); United States v.
Swingling, "nc.. 371 F. Supp. 37, 47 (E.D.N.Y. 1974); State, ex
rel. Brown v. Dayton Malleable. Inc.. 1 Ohio St. 3d 151, 438
N.E.2d 120, 125 (1982).•
*** United States v. EnvironmentalWaste Control 710 F. Supp,
1172 (N.D. tnd.), aff'd 917 F.2d 327 (7th Cir. 1990). The Court
imposed a penalty of $2.78 million based on the following
factors: (1) deterrent impact of penalty (the Court discussed
both general deterrence and specific deterrence); (2) lack of
good faith sfforts to comply; and (3) the seriousness of the
violations. The Court cited T & S BrassandBronge Works, supra.
jand the cases cited in T & S. in holding that "the Court should
give effect to the major purpose of a civil penalty: deterrence."
710 F. Supp. at 1242. "A civil penalty must provide a meaningful
deterrence without being overly punitive; it should be large
enough to hurt; it should deter anyone in the future from showing
a similar lack of concern with compliance. (Citation omitted)."
Id. at 1244. "EWC has been faced more than once with a choice
between disobeying the law or continuing its operations; each
time, EWC chose to disobey the law and make more money.
Substantial penalties ... are warranted." Jd. at 1245.
*** Unitec. States v. Vineland Chemical Co.. No. 86-1936 (D.N.J.
April 30, :.990) , reprinted in 31 ERC 1720, aff'd. 33 Env't Rep.
Cas. (BNA) 1316 (3d Cir. 1991): Citing T & S Brass and
Environment.al Waste Control, the district court held that the
civil penai.ty must provide a meaningful deterrence without being
overly punitive. See also U.S. v. Ciampitti. 669 F. Supp. 684,
700 [26 ER<: 2026] (D.N.J. 1987) ("civil penalties are imposed
'with the iiim of both punishing the defendant[s] and of deterring
[them] and others from taking further [illegal] action"). ... We
must be clsar to the regulated community that violations of the
law are no: treated lightly, especially where the regulations
protect puDlic health and the environment. Moreover, a
significant penalty deprives violators of any economic benefit
from delay in compliance. Too small, a penalty risks being
considered by violators as 'an acceptable cost of violation,
rather than as a deterrence to vio :ion. U.S. v. ITT
Continental Baking Co.. 420 TJ . S. 2 231 (1975)." The Court
irr.pDsed a $1,223,000 penalty for L-_S violations.
-------
-4-
i
Diver, "The Assessment and Mitigation of Civil Money
Penalties by Federal Administrative Agencies," 79 Colum. L. Rev.
1435, 1458: "The efficacy of any regulatory program depends on
the sanctions imposed in individual cases. If these sanctions
are set too low, potential violators may be insufficiently
motivated to minimize the social harm resulting from their
behavior, or society may be under compensated for the harm that
does occur."
*** United States v. Maiorano. No. 87 C 4491 (N.D. 111.; January
8, 1990), reprinted in 20 ELR 20444: "The government argues that
a substantial penalty is warranted for reasons of deterrence.
[Citations omitted] The Court agrees. ... Defendant[s] ...
disregarded specific orders ... have not taken this matter
seriously, and they have exhibited a pattern of behavior which
evidences a complete disregard for statutory law, EPA orders, and
judicial orders. To impose merely a perfunctory or token penalty
would send a message to similarly situated persons that they may
flout the law without consequence, ooo The government has
suggested that a civil penalty of $100,000 - about $110 per day -
would be appropriate. Although this figure is a relatively small
proportion of the maximum penalty [permitted by law), it is
nonetheless a substantial sum, and would serve [RCRA's]
deterrence purposes..."
*** United States v. ILCO. No. CV-85-H-823-S (N.D. Ala. Oct. 8,
1991): The court imposed a penalty of $3,500,000 against a
company in bankruptcy, and its president, for RCRA and Clean
Water Act violations. In setting the penalty, the court "engaged
in a delicate balancing of requiring compliance, punishing non-
compliance and endeavoring to keep viable, if possible, a
business which can be of great value to the implementation of
policies embodied in federal and state environmental laws."
*** United States, et al. v. Production Plated Plastics. Inc..
et al.. Pile No. K87-138 CA (W.D. Mich.): The Court described
the $1.5 million RCRA penalty for violations including operating
unpermitted seepage lagoons as, "certainly large enough to
hurt ..."
***
In the Matter of: J.V. Peters and Co.. et al.. RCRA Docket
No. V-W-81-R-75 (Initial Decision [Order on Remand]; September
26, 1988: "... the civil penalty provision of RCRA is
essentially regulatory, seeking to enhance compliance with the
Act rather than impose penal sanctions on those who violate the
statute ... (citation omitted)."
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SEPARATE PENALTIES FOR SEPARATE VIOLATIONS:
Blocki'uraer v. United States. 284 U.S. 299, 304 (1932) :
"Where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine vhether there are two offenses or only one, is whether
each provision requires proof of an additional fact which the
other does not . "
*** In tho Matter of: Martin Electronics. RCRA Appeal No. 86-1
(Order on i5ua Sponte Review; June 22, 1987): In the Initial
Decision, i:he ALJ had held: "In the instant case, the Respondent
failed to notify the Agency of the fact that it was generating
and storing spent solvents on its premises which the Respondent
used to cl<»an parts and thin paint. ... My reading of this
record woul.d suggest that the Respondent was guilty of
essentially one act and that was the failure to notify the Agency
of the existence of these wastes on its property. The fact that
is failed :o do so in several instances and under several
different regulations does not in my judgment authorize the
assessment of three different penalties which, in essence, arise
from the s.une factual situation." On review, the CJO reversed
this holding. Characterizing the issues as one of "legislative
intent," tie CJO found that RCRA "contemplated that separate
penalties would be assessed" for separate violations of distinct
hazardous waste notification requirements. See also F.A.A. v.
Landy. 705 F. 2d 624, 636 (2d Cir. 1983), cert, den. 464 U.S. 895
(1983), ani Louoren v. Byrne. 787 F. 2d 857 (3rd Cir. 1986),
cited in sjpport of the holding.
***
In trie Matter of: F & K Plating Co.. Appeal No. 86 -1A
(Final Decision; October 8, 1987) : "Even violations of the same
regulations at a single location can result in separate penalties
where they involve two or more independent acts and pose distinct
risks." In this case, separate penalties were assessed for
failing tc maintain adequate security and failing to post warning
signs. (The CJO added, however, that even if the two counts were
consolidated, the "extent of deviation" would increase from
"moderate" to "major, " resulting in essentially the same penalty
amount . " )
***
In tfe Matter of Fair Haven Plastics. Inc.. et al.. Docket
No. RCRA \-W-88-R-005 (Initial Decision; May 3, 1989): In this
interestirg decision, the ALJ refused to accept EPA's penalty
assessment witness's own determination that several different
violations could legitimately be grouped together for penalty
assessment purposes. Applying the "requires an element of prc~
not needec. by the others" test, the Judge grouped the "failing
obtain an EPA ID Number" and "shipping hazardous waste withcu:
E?A ID Number" violations together, but insisted on separate
penalty assessments for each cf the following remaining
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j
violations: storage of hazardous waste without interim status or
a permit; failure to properly label containers; failure to
develop a personnel training program; and failure to develop a
contingency plan and emergency procedures. As a consequence, the
Court's GBP calculation was considerably higher than the
Region's. Decided by Judge Frazier.
Public Interest Research Group of New Jersey. Inc. v. Powell
Duffryn Terminals. Inc.. No. 89-5831 (3rd Cir. 1990} (filed
August 20, 1990: at 28 - 29: PIRG was accused of "double
counting" when it counted a single reported exceedance for a
pollutant as a violation of both the average concentration limit
and the maximum concentration limit for that pollutant. Held:
"These: are clearly separate limitations and we see no reason why
PDT should not be penalized separately for violating each
limitation."
In the Matter of; 3M Company. TSCA Appeal No. 90-3 (Final
Decision, February 28, 1992): TSCA Sections 5 and 13 "new
chemicals program" penalty appeal. Held: separate penalties
assessed for each separate act of illegal "new chemical" import;
separate penalties also assessed, per illegal act, under (1) TSCA
Section 5 (import without a premanufacture notice [PMN]); and
(2) TSCA Section 13 (false certification to Customs Department).
In theMatter of;Helena Chemical Company; FIFRA Appeal No.
87-3 (Order; November 16, 1989): Appeal of Initial Decision
assessing a $12,400 penalty for numerous FIFRA violations. On
the issue of liability, the ALJ determined that EPA had proven
twenty separate illegal sales of the restricted use pesticide,
but imposed only a single penalty. This aspect of the holding
was reversed on appeal, and a new $117,400 penalty assessed:
Held: n[E]ach sale was an independent act, requiring independent
proof that the transaction occurred and also proof that the
purchaser was not certified on the date of the sale. ... I
disagree with respondent's contention that the twenty sales --
which spanned a six month period -- were part of *the same series
of events' merely because they involved the same vendor and
purchaser and the same pesticide."
*** in the Matter of: Elwin G. Smith Division. Cyclops
Corporation. Appeal No. 86-6 (Final Decision; August 14, 1990):
The CJO concurred in the ALJ's treatment of a failure to submit a
Part B application and failure to have a closure plan as a single
violation, since the violator could have either filed a Part B
and not closed, or closed in accordance with an approved plan and
not filed a Part B.
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GRAVITY-BASKD PENALTY /ADJUSTMENT FACTORS "HIERARCHY":
In the Matter of: 3M Company. TSCA Appeal No. 90-3 (Final
Decision, February 28, 1992) : TSCA Sections 5 and 13 "new
chemicals program" penalty appeal. Held: appropriate method of
calculating penalty is to first calculate a gravity-based
component t:> reflect the seriousness of the violations . and
second adjust the GBP based on factors relating to the violator.
In this cas*, the existence of a compliance program and the
inadvertencB of the violations did not affect the potential for
harm (gravity) of the violations and so were properly considered
factors relating to GBP adjustments. "[3M's] commitment [to
compliance] does not lessen the probability of harm occurring
once a violation has taken place. ... tRather, they relate to]
the actions and intent of the violator [which deserve
consideration] during the second [adjustment] phase of the
analysis ..."
***
In the Matter of: National Coatings. RCRA Appeal No. 86-5
(Final Decision; January 22, 1988): Based on evidence that the
Respondent "had no intent to dispose of hazardous waste
improperly, " the ALJ assigned a lower GBP than provided for in
the RCRA penalty policy. The CJO reversed the Initial Decision
and reinstated the Agency's proposed GBP, holding that the
violator's "intent" is irrelevant to the issue of the potential
of the violation to cause harm.
GRAVITY OF THE VIOLATION - "POTENTIAL" FOR HARM:
*** In the Matterof;A.Y. McDonald Industries. Inc.. Appeal No.
RCRA (3008! 86-2 (Final Decision; July 23, 1987): The CJO
rejected the Respondent's argument that its penalty should be
reduced because no actual harm resulted. The focus of the RCRA
penalty policy is on potential for harm, not actual harm or
intent. "McDonald should not be rewarded for its complete
disregard of the RCRA program simply because test results this
far fail t :> show groundwater contamination."
All Rsgions Chemical Labs.. Inc. CERCLA-I-88-1089 (May 3,
1989) . (Accelerated Decision, EPCRA case) aff'd sub nom. All
Regions Chsmical Labs.. Inc v. United States Environmental
Protection Agency. No. 90-1715 (1st Cir., May 6, 1991): The
violator-appellant failed to notify the National Response Center
(NRC) , pursuant to CERCllA Section 103 (a) , promptly upon learning
of two fires. The fires released 180,000 pounds of chlorine into
the air, creating a chlorine cloud forcing 30,000 people to be
evacuated. The statute required "immediate" notification. E?A
learned of the first fire, 5 hours after it began, from a priva:-
citizen. EPA learned of the second fire, two hours after it
began, frcm the Massachusetts Department of Environmental
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i
Quality. All Regions itself gave the NRC formal notice only
months later. Though CERCLA Section 109(b) permits penalties of
up to $25,000 per day for" continuing violations of notification
requirements, EPA assessed a one-day penalty in light of the
notice it had received from the private citizen and state agency.
The penalty assessed was $20,000, or 80% of the statutory
maximum. In contesting the $20,000 penalty, All Regions argued
that no actual harm resulted from its late notification to EPA.
Even after receiving notice, the violator claimed, EPA had little
involvement with the response action. Held: the key factor for
penalty assessment purposes is potential for harm: "When the
violation was committed, that is, when the release first took
place, failure to notify EPA might well have caused serious
harm." "[The ALJ's] discussion, taken as a whole, "suggest[ed]
that the .ALJ was considering what might have happened in the
absence of the 'fortuitous' events of adequate responses and
notification by other parties ... Given the [Algency's legal
power to assess penalties in terms of what might have happened
... rather than what did happen, All Region's argument is
unconvincing." (Emphases in original.) The Court also rejected
All Regions' argument that EPA improperly failed to credit it for
$1.205 million spend in clean-up costs. The violator sought a
35% penalty adjustment to reflect these costs. The Court found
instead that "since clean-up costs will often be associated with
harm, larger costs would often mean larger harm, calling for a
higher, not a lower, penalty." Thus the clean-up costs plus the
penalty amount, taken together, were not "excessive for the
particular violation."
In the Mafctper of: 3M Company. TSCA Appeal No. 90-3 (Final
Decision, February 28, 1992): In this TSCA Sections 5 and 13
"new chemicals program" penalty appeal, the CJO determined that
the GBP must reflect the "probability" of harm from the
violations.
In the Matter of: State of West Virginia. Department of
Highways. TSCA Appeal No. 86-2 (Final Order; January 21, 1987).
Respondent in PCB case appealed imposition of full proposed
penalty, arguing that the penalty should be reduced because "no
harm to persons or the environment resulted from [the
Respondent's] violations." Held: "[C]ongressional intent [does
not] waiver where, as here, there has been no known present
damage to human health or the environment. The Agency's TSCA
enforcement action is prophylactic; it is intended to prevent
potential health or environmental accidents from ever occurring."
In the Matter of Port of Oakland and Great Lakes Dredge
and Dock Co.. MPRSA Appeal No. 91-1 (Final Decision and Order;
August 5, 1992) : The Port and dredging company violated the
Marine Protection, Research, and Sanctuaries Act, and a permit
issued thereunder. "In order to establish the potential
environmental harm from the disposal of unpermitted sediments,
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need not prove that the sediments were in fact harmful , but
that there suitability for ocean disposal had not been
determined as of the time of their disposal . Decided by the
Environmental Appeals Board.
In the Matter of ; T H Agriculture and Nutrition Co.. Docket
No. TSCA VII-83-T-191 (Initial Decision; January 10, 1984).
Respondent improperly shipped for disposal contaminated waste
materials, in violation of "existing chemical" rules promulgated
pursuant tc TSCA Section 6. Held: "It is the 'probability of
harm' or potential for harm and the risk inherent in the
violation as it was committed that is properly considered rather
than any actual harm that resulted from the subject violation."
*** In the Matter of; Millipore Corp.. Docket No. RCRA (3008)
11-85-0303 (Accelerated Decision; July 30, 1986} [Decision on
Remand; April 30, 1987] [Final Decision; December 2, 1987]: The
"issue to determine in assessing Respondent's illegal closure is
not whether exposure occurred from such closing, but rather the
potential for harm created by closing outside the prescribed
regulatory procedures. ... [A] violator is not to be rewarded
for luck wtere no actual harm can be proven to have occurred as a
result of the violation." Decided by Judge Finch.
Note: RCRA practitioners are advised to exercise caution in
relyirg on pre-October, 1990 administrative cases to
detern.ine the "potential for harm" of present violations,
absent close analysis of the facts of both cases. Few
pre-1590 RCPP cases included multiday penalty components,
resulting in many cases with inadequate overall penalties
which failed to reflect the true gravity of the violations.
This nay have promoted, in some cases, a determination of
"poter.tial for harm" and "extent of deviation" of the
violat ions so as to compensate for the lack of multiday
penalties. Cases with facts roughly equivalent to prior
cases litigated today will usually warrant considerably
higher overall penalties due to the multiday penalty
component alone.
Note: In determining the gravity of a violations, case
developers should always consider the specific facts at
hand, to ensure that violations of the same provisions by
different companies receive appropriate penalties where, for
exampl.e, substantially different site conditions (e.g., the
presence at the facility of containment systems, safeguards,
and security systems) or quantities and toxicities of waste
exist Otherwise, large, poorly-run facilities could
receive essentially the same gravity-based penalties as
small very well-run facilities for violations of the same
provisions where the "potential for harm" is not identical.
a result not contemplated by the RCPP.
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GRAVITY OF THE VIOLATIONS - RISK TO HUMANS AND THE ENVIRONMENT
*** In_the.Matter of Stallworth Timber Company. Inc.. RCRA
(3008} Appeal No. 89-1 (Order Denying Review; July 11, 1991):
Action against company for violating surface impoundment
"freeboard" operating standards (40 CFR § 265.222). Held:
Initial decision assessing $25,000 "major-major" penalty
affirmed. The Presiding Officer correctly determined that the
absence of adequate freeboard poses a "major" risk of harm
because of the "increased chance of spillage, the proximity of
the area to waters of the United States, and the area's tendency
to receive large areas of rainfall," and appropriately took into
account that the Region's inspector had observed freeboard
violations on more than one occasion. The Chief Judicial Officer
(CJO) further rejected the Respondent's argument that its penalty
should only have been $1,000 because the $25,000 penalty actually
assessed was substantially higher than those assessed in similar
cases, stating: "The penalty amounts assessed in the [other 2}
cases ... are irrelevant to determining an appropriate penalty
here because the circumstances of both of those violations differ
substantially from those alleged here." The other cases involved
storage tanks, rather than surface impoundments, and therefore
posed different risks. Decided by the CJO.
*** In the Matter of; Martin Electronics. RCRA Appeal No. =•: :
(Order on Sua Sponte Review; June 22, 1987): The CJO assess-r-i
the "potential for harm" for the failure to notify EPA of a ?*:*
A permit revision at the low end of the moderate/moderate eell.
The Respondent generated only 200-250 gallons of solvents per
year, and had notified EPA of other waste activities so that :-:IA
was at least aware that Respondent generated and stored haza: : .-
wastes other than spent solvents.
***
In the Matter of; ElwinG. Smith Division. Cyclops
Corporation. Appeal No. 86-6 (Final Decision; August 14, 199:
Respondent had stored over 2,000 drums of flammable hazardous
wastes in deteriorating drums. The CJO determined, among oc:.- :
things, that: {1} the failure to maintain adequate aisle spa,--
presented a "major" potential for harm because emergency ace--.—
to the barrels was blocked, increasing the possibility of a r »
fire of spill (there was "extremely narrow spacing of at lea.-?'
some of the drums"); and (2) the failure to store hazardous •*•,-•
in good condition and prevent leaks also presented a "major"
potential for harm as there could have been a disaster had
exposed flammable wastes ignited. An essential element of F!-
proof of the latter violation was the inspector's testimony •
he saw at least half a dozen drums leaking, while others we:
a deteriorated condition. The Court also noted that the
violations had persisted for some time despite repeated war:.
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** In the Matcer of: Millioore Corp.. Docket No. RCRA (3008)
11-85-0303 Accelerated Decision; July 30, 1986): Factors in
determining the appropriate GBP in this case included the "types
and quantity of waste involved ... " (in this case, 50 drums of
waste lacquor, 5 drums of waste solvent, and 45 drums of used
oil, plus any additional wastes generated in closure). But see
Appeal No. 36-7 (Final Decision; December 2, 1987): On appeal,
the CJO reduced the "probability of harm" determination from-
"major" to "moderate," holding j.nter alia that "the Region does
not furnish any explanation of how the 'nature and quantity' of
the waste [ilone] create[d] a substantial likelihood of
exposure." The Court noted that Millipore had submitted a
closure plai (albeit flawed), was replacing the old facility with
a new facility at the same site, and had consulted with the
Puerto Rico Environmental Quality Board about the closure. These
factors all lessened the likelihood of exposure. Decided by
Judge Finch.
*** "n the Matter of; Sandoz. Inc.. Docket No. RCRA (3008)
84-5-.-R (Initial Decision; October 31, 1985), aff'd. Appeal
85-7 (Final Decision; February 27, 1987): The ALJ balanced
"rather high" quantities of waste involved in the violation
the manner in which the subject impoundment was constructed
above average threshold of protection"). In this action
involving groundwater monitoring violations, the ALJ deternu
I that the fact because the Respondent's groundwater monitorin
system still provided some protection despite its deficienci
the violations posed a "moderate" rather than a "major" pote
for harm. Decided by Judge Yost.
*** In the Matterof; Aero PlatingWorks. Inc.. Docket No.
(3008) V-W-84-R-071-P (Initial Decision; February 13, 1986):
this case, the ALJ found that "some firm evidence showing
precisely *hat quantities of hazardous waste were involved a:
for what p€riods cf time" was missing from the record. In t':
absence of this evidence, though he determined that some
violations began in 1981, the ALJ placed all of the numerous
violations (including "operating without a permit or interirr
status") ir the "minor" potential for harm GBP category. Th
held the f«ther and son owner/operators of the plating finr.
jointly anc. severally liable for an $18,500 penalty, and als
required the son to pay an additional $3,500 penalty. Decid-
Judge Harwciod.
Note: In a followup case, United States v. Maiorano. N
C 449:. (N.D. 111.; January 8, 1990), reprinted in 20 EL:
20444, the District' Court increased the penalty agains:
Aero Plating Works owner/operators to $100,000, based :
their continuing recalcitrance.
No.
the
wi^h
"an
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*** In the Matter of Fair Haven Plastics. Inc.. et al.. Docket
No. RCRA V-W-88-R-005 (Initial Decision; May 3, 1989):
Respondent failed, inter alia. to file a Part A (i.e., it
operated without interim status or a permit. The "potential for
harm" was classified by the ALJ as "moderate," and the penalty
was assessed as the low end of the applicable GBP matrix cell,
because the quantity of waste accumulated since 1978 averaged
only about 5.8 drums (320 gallons) per year. In addition, any
threat to human health and the environment was ameliorated by the
fact that the wastes were contained in drums inside an on-site
trailer. In re; A.Y. McDonald Industries was distinguished. In
that case, McDonald's illegal operation was deemed to present a
"major" "potential for harm," where the company had dumped more
than one million pounds of waste at the site over five years, and
site security was poor if not nonexistent. Decided by Judge
Frazier.
In the Matter of Port of Oakland and Great Lakes Predate
and Dock Co.. MPRSA Appeal No. 91-1 (Final Decision and Order;
August 5, 1992): The Port and dredging company violated the
Marine Protection, Research, and Sanctuaries Act, and a permit
issued thereunder. "Where the Region has made a permit
determination under the MPRSA that particular sediments are
unsuitable for ocean disposal, their potential to cause
environmental harm has been established and will be assumed once
exposure or potential for exposure exists." Cited in support of
this holding were In the Matter of Bricrcrs & Stratton. TSCA Appeal
No. 81-1 (February 4, 1981) (unnecessary to introduce evidence of
the toxicity of PCBs in a proceeding to assess a civil penalty
for PCB rules violations), and *** In the Matter of A.Y.
McDonald. RCRA (3008) Appeal No. 86-2 (July 23, 1987) (the
toxicclogical effect of material identified by regulation as
hazardous waste should not be evaluated in determining the
potential for harm of the waste for penalty purposes because
"once a waste is deemed hazardous under the regulations, its
potential danger has been established." Decided by the
Environmental Appeals Board.
GRAVITY OF THE VIOLATION - HARM TO THE RCRA PROGRAM:
Note: In assessing GBPs under the 1990 RCPP where "harm to
the RCRA regulatory program" is a key consideration, care
should be taken also to analyze the potential harm to health
and the environment from the violations. Regardless of
which impact is considered more severe, the litigation team
should always be prepared to demonstrate not only how the
violation impacts an important RCRA program, but also why
the program itself is important. Explaining the health and
environmental risks the program is designed to address, and
showing how noncompliance with the program increases the
likelihood of these risks occurring, are effective ways re
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accomplish /this result. Citing to the relevant rule
preamble and supporting documentation, and presenting expert
testinony from the EPA staff responsible for implementing
the program, are both appropriate techniques in litigation.
*** In th«* Matter of: A.Y. McDonald Industries. Inc.. Appeal No.
RCRA (30081 86-2 (Final Decision; July 23, 1987): Held: ALJ's
characterisation of the potential harm as "moderate" increased- on
appeal to "major". "The notification and permitting requirements
are crucial to the effective enforcement of RCRA. ... [T]he
failure to file the notification and to apply for a permit or
qualify for interim status had the effect of concealing from the
EPA Respondent's existence and the nature of the hazardous waste
operations. ... In other words, the notification and permit
requirements go to the very heart of the RCRA program. If they
are disregarded, intentionally or inadvertently, the program
cannot function."
*** in ths Matter of; Grumman St. Augustine Corp.. Docket No.
RCRA 87-18-R (Initial Decision; May 10, 1989): Respondent
aircraft paint stripper failed, among other things, to submit a
Part B permit application. Held: "[T]he permit application
forms an essential part of the Agency's ability to regulate
hazardous waste ... Without this vital information, the Agency
is severely hampered in its ability to operate a 'cradle to
grave' program which the statute and regulations require."
Decided by Judge Yost.
*** In the Matter of: Millioore Corp.. Docket No. RCRA (3008)
11-85-0303 (Initial Decision; July 30, 1986): The ALJ determined
that the "Respondent, through its illegal closure, has succeeded
in by passing [sic] the entire closure procedure required by the
regulations. These avoided procedures include Agency comment and
supervision over such details as systems and devices necessary
for [groundwater protection, equipment decontamination, etc.]."
"Closure cr partial closure of any hazardous waste facility
without ar approved closure plan successfully avoids the entire
regulatory procedure for closure and, thus, clearly has a
substantial [i.e., "major"] adverse effect on the regulatory
procedure for implementing closure." On appeal, however, see
Appeal No. 86-7 (Final Decision; December 2, 1987), the CJO
reduced tire "potential for harm" determination to "moderate"
because, although Millipore hadn't consulted with the government
prior to closure, it had submitted a plan that met RCRA
substantive requirements and did communicate with the appropriate
officials "after the fact." Decided by Judge Finch.
*** The Marley CoolingTower Co.. Docket No. RCRA-09-88-0008
(Decision and Order; November 30, 1989): Respondent failed to
submit updated financial assurance documentation for 1986 and
1987, but had actually maintained the required financial
assurance. The ALJ found the likelihood of harm to be
"inconsequential," since funds were available for closure and
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post-closure, but classified the "potential for harm" from the
violation as "moderate" due to the disruptive effect of the
violation on the RCRA program. Decided by Judge Greene.
*** In the Matter of; Elwin G. Smith Division. Cyclops
Corporation. Appeal No. 86-6 (Final Decision; August 14, 1990):
The Respondent appealed the ALJ's determination that its failure
to file a revised Part A application regarding capacity presented
a "major" potential for harm because of the RCRA program's
dependency on accurate information. The Respondent argued that
it had simply made a typographical error (typing 10,000 rather
than 110,000 gallons). The CJO affirmed the ruling, noting among
other things that approvals of applications for capacity
increases at other facilities under 40 CFR § 270.72(b) would
depend in part on the information in agency files about the
available capacity at Respondent's facility.
EXTENT OF DEVIATION:
Note: The function of the "extent of deviation" factor is
to reflect the degree to which the violation renders
inoperative the violated requirement on any given day. The
duration of the violation over time should be addressed
through the multiday penalty component, not the "extent of
deviation." Pre-October, 1990 penalty cases lacking
multiday penalty components do not always respect this
distinction.
*** In the Matter of; Grumman St. Augustine Corp.. Docket No.
RCRA 87-18-R (Initial Decision; May 10, 1989): "... Respondent
kept its percolation pond in operation for 240 days without a
permit and after the time it was required by the law to close.
Additionally the Respondent did not certify compliance with
ground-water monitoring or financial responsibility requirements
. . . , and . . . the closure plan submit tals were totally
inadequate." All of these factors were held to "clearly
demonstrate a major extent of deviation as the violations above
specified ..." Decided by Judge Yost.
*** In the Matter of Fair Haven Plastics. Inc.. et al^ . Docket
NO. RCRA V-W-88-R-005 (Initial Decision; May 3, 1989): (1)
Extent of deviation deemed "major for each of these violations,
where the Respondent (1) failed to file a Part A, altogether;
(2) failed to obtain an EPA ID Number until after the filing of
the Complaint; (3) failed 'to mark any of its drums; (4) did
nothing to meet, even partially, the requirements for a personn
training program; and (5) developed no contingency plans at all
Decided by Judge Frazier.
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In the Jlattjer of Environmental Protection Corporation.
Docket No. RCRA-09-86-0001 (October 24, 1989; Decision and
Order): Where the Respondent met,some of the requirements of
RCRA Section 3007(a) by responding promptly to EPA's request for
documents, bf supplying some of the documents, and by offering
its rationale for not submitting the remainder of the documents,
the "extent of deviation" of the violation was deemed "moderate."
Decided by Judge Vanderheyden.
*** In the Matter of;Ashland ChemicalCompany. RCRA (3008)
Appeal No. 87-17 (Final Decision; November 15, 1989): In his
Initial Decision, Judge Nissen had determined the "extent of
deviation" cf Respondent's storage of hazardous waste without a
permit to present a "major extent of deviation." On appeal,
Ashland argued that it should be "moderate" because it had
previously submitted a Part A permit application (withdrawn prior
to the onset of the violation). The CJO affirmed the "major"
"extent of aeviation" determination, as well as the ALJ's
accounting lor the actions in the form of a "good faith efforts"
adjustment t:o the GBP.
***' In the Matter of: Elwin G. Smith Division. Cyclops
Corporation Appeal No. 86-6 (Final Decision; August 14, 1990):
Where the A!jJ found the EPA inspector's testimony credible that
the Respondent had packed waste drums into an aisle so that he
ad to stand sideways to go between them and that there was
inadequate .lisle space for towmotors to pass, the "extent of
deviation" 3f the Respondent's failure to maintain adequate aisle
space was CDrrectly determined to be "major." The CJO likewise
affirmed th= ALJ's ruling that the Respondent's failure to store
hazardous wastes in containers in good condition and prevent
leaks presented a "major" "extent of deviation." The EPA
inspector had testified that he saw "about half a dozen drums
actually leaking, while others were in deteriorated condition."
Respondent's argument that where only a small percentage of its
2,000 drums were actually leaking, the "extent of deviation"
should not be "major," was rejected. The leaks, according to the
CJO, "were an actual harm -o the environment since waste reached
the ground, and could hav- led to a disaster if the exposed
flammable vaste had been ignited ..." On the other hand, where
"Respondent had filed a Part A application but had simply failed
to revise :.t"to be consistent with the actual capacity of the
facility," the "extent of deviation" was "moderate."
***
No,
In th<* Matter pf Brunswick Mercery Marine Plant. Docket
RCRA V!-43:»-H (Initial Decision; July 31, 1990): (1)
"[Rlespondunt's waste analysis plan included some of the
inf ormatio:i required by the regulation, but . . . three specif
requirement were not included. This failure is sufficient
constitute a moderate deviation from the regulatory framewor
(2) "Respoident's inspection log, while not a complete inspect:
schedule, included [a] substantial portion of the total
ir.formatioi required. Certain information ... was not inclua--
sucr. as an inspection schedule .cr particular equipment. T'r..-
to
k . '
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-16-
constitutes [a]I moderate deviation from the regulatory
framework." (3) "[W]hile the personnel training records do not
show that hourly employees received training, they did include
some of the required information. ... [Blecause a significant
portion of the required information was present, it is found that
the ["extent of deviation" is moderate]." (4) Respondent's
closure plan violation "is a minor deviation from the regulatory
requirements, the only violation established having been failure
to include an estimated year of closure." (5) Respondent had
serious groundwater monitoring violations, but had installed a
svstem and measured the parameters it thought applied. The ALJ
concluded that the "extent of deviation" fell midway between
"major" and "moderate," and assessed a commensurate penalty.
Decided by Judge Greene.
MULTIDAY PENALTIES:
Note: Multiday penalties were rarely proposed under the
1984 penalty policy. Consequently, as of the date this
outline was prepared, there were no identified RCRA
administrative decisions addressing multiday penalty issues
under the 1990 RCPP. The following case summaries include
three key RCRA civil cases where multiday penalties were
imposed.
In the Matter of Dr. Marshall C. Sasser. Docket No. 404-89-
102 (Initial Decision; July 30, 1991): Respondent held liable
for filling a wetlands without a permit in violation of Clean
Water Act Section 404, and penalized $125,000. The Court's
analysis indicates that it viewed the violation to be
"continuing" (though the violation technically consisted of the
"discharge" of fill materials, the subsequent failure to correct
the violation resulted in a "continuing" violation for penalty
assessment purposes).
***
In re: Cypress Aviation. Inc.. RCRA (3008) Appeal No. 91-6
(Order Dismissing Notice of Appeal; January 8, 1992): RCRA staff
may be familiar with this Region 4 action, which raised the
issue of whether the illegal land disposal of LDR wastes is a
"continuing violation" for which multiday penalties may be
assessed. In his Initial Decision, Senior ALJ Harwood assessed
single-day penalties only, but for evidentiary and other reasons
{including the fact the- decision did not refer to the 1990 RCPP),
Region 4 did not appeal. In the Order on appeal, the CJO
dismissed the Respondent's Notice of Appeal as untimely. Decided
by Judge Harwood.
Note: Regions obtaining a similar decision, in a future
case with analogous facts, are requested to contact the CE
RCRA Division to discuss the possibility of an appeal.
-------
***
U.S.
CD.S.C. i:
(1988):
-17-
T & S Brass and Bronze Works. Incg.f 681 F.Supp. 314
aff1d in part and vacated in part• 685 F.2d 1261
L;fendants continued to operate hazardous waste surface
impoundment after losing interim-status. The Court imposed a
civil penalty of $l,000/day, for a total of $194,000.
*** U.S. y. Environmental Waste Control. 710 F.Supp. 1172, 1142-
1145 (N.D.Ind. 1989), aff'd 917 F.2d 327 (7th Cir. 1990):
Defendants continued to operate a hazardous waste landfill after
losing interim status, had an inadequate ground water monitoring
system, and placed waste in unlined cell in violation of the
minimum technology requirements. The Court imposed a civil
penalty of $2,000/day, for a total of $2,788,000.
***
U.S. v. Vineland Chemical Co.. 31 ERC 1720 (D.N.J. 1990):
Defendants continued to operate two surface impoundments after
losing interim status. Finding inter alia that the defendants
acted in bad faith in misleading EPA and NJDEP in conducting
certain closure activities without prior notice, the Court
imposed a penalty of $l,000/violation/day, for a total of
$1,223,000.
In the Matter of Ashland Oil. Inc.. SPCC Appeal No. 91-1
(Final Decision; September 15, 1992): Ashland failed to prepare
and maintain a Spill Prevention Control and Countertneasure Plan,
for one of its facilities by not disclosing the location and/or
existence of certain tanks. The Environmental Appeals Board
affirmed the ALJ's ruling that per day penalties were appropriate
for the time period during which Ashland failed to amend its
Plan.
ECONOMIC LENEFIT OF NONCOMPLIANCE:
*** United States, et al. v. Production Plated Plastics. Inc..
et al.. File No. K87-138 CA (W.D. Mich.): The Defendants in this
case opera.ted unpermitted seepage lagoons, delayed submission of
closure and groundwater monitoring plans, failed to comply with
RCRA's financial assurance and liability provisions, and did not
implement their groundwater plan. In addition, the Defendants
never complied with RCRA's financial assurance or financial
liability provisions. The Court deemed the Defendants to have
received an economic benefit of noncompliance (EBN) of at "least
$1 million through their failure to comply with the statute."
*** A.Y, McDonald Industries.Inc.. RCRA Appeal No. 86-2 (Final
Decision; July 23, 1987): The CJO held that "the economic
benefit component should include only the cost of the cheapest
mode of compliance." The CJO added, however, that EPA is not
required :o "prove (in its prima facie case) that every
conceivable compliance alternative would have been more costly
than the only one on which the economic benefit calculation 1=
-------
-IB-
based." Rather!, EPA may satisfy its burden of going forward by
demonstrating the cost of a reasonable compliance option. The
burden would then shift to the Respondent "to produce evidence"
on available cheaper compliance options. In this case, the CJO
determined that EPA's engineer's testimony was sufficient to
establish a prima facie EBN case. The CJO also held that "good
faith" efforts are irrelevant to the EBN determination.
*** In the Matter of; Grumman St. Augustine Corp.. Docket No.
RCRA 87-18-R {initial Decision; May 10, 1989): "The Respondent
argued that the Agency's [BEN] calculations were in error because
an alternative to the scenario proposed by the Agency witness,
the Respondent could have bought a truck and used one of its own
employees to drive it rather than hiring a transporter as was
done [sic] by the Agency's witness. ... The regulations and
penalty policy are clear that if a Respondent wishes to contest
the economic benefit adjustment provided by the Agency, ... it
has a burden to come forward with documentation to demonstrate
how and in what particulars the Agency [was] in error in its
calculations. In this instance, the Respondent did not submit
any documentation ... [Ajbsent such documentation the Agency's
calculations and estimates should be accepted unless there is
some showing that they mis -applied the formula or requirements of
the penalty policy." Decided by Judge Yost.
***
the Matter of Federaj. Hoffman. Inc.. Appeal No. 87-15
(Final Decision; November 15, 1989): EPA's EBN computation for
placing liquid wastes in a landfill lacking a liner was assessed
in full, where the Respondent made no attempt to rebut it.
***
In the Matter of: Sandoz. Inc.. Appeal No. 85-7 {Final
Decision; February 27, 1987): In this case, EPA introduced
evidence of EBN using national data on expenses incurred by
industries in complying with RCRA's groundwater monitoring
requirements. The violator countered with credible company-
specific data indicating lower-than-average cost savings, which
EPA did not refute. Therefore, the CJO assessed the lower
amount. The CJO added, "I express no opinion as to whether a
penalty component premised on a natior^l model of compliance
costs, standing unrebutted, would satisfy EPA's burden of proving
the proposed penalty was appropriate."
U.S. v. Roll Coater. Inc.. Cause No. IP 89-828 C {Order
Following Bench Trial; March 22, 1991): CWA case (violations of
pretreatment standards): The Court rejected EPA's BEN discount
factor (capital asset pricing model). The Court accepted the
defendant's discount factor (weighted average costs of capital).
The EBN component of the penalty should reflect the cost of the
least expensive compliance alternative.
*** In the Matter of; Sandoz
Inc.. Docket No. RCRA (3008)
No consideration
84-54-R (Initial Decision; October 31, 1985):
cf either good or bad faith should enter into the EBN
calculation. Decided by Judge Yost.
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-19-
JUSTMENT FACTORS:
1. GOOD FACTH/IACK OF GOOD FAITH:
*** United States, et al^ v. Production Plated Plastics. Inc..
St-aLi., File No. K87-138 CA (W.D. Mich.): The Defendants in this
case operate! unpermitted seepage lagoons, delayed submission of
closure and groundwater monitoring plans, failed to comply with
RCRA's financial assurance and liability provisions, and did not
implement their groundwater plan. The Court noted that, since
1986, the Defendants had expended over $4.5 million cleaning up
the facility, as well as $500,000 per year operating a purge and
treat systeir for the years the system was operational.
Nevertheless, the violations occurred despite the fact that the
Defendants "were well aware of the various RCRA deadlines."
Thus, "any "good faith" exhibited by these expenditures was
counterbalanced by the "numerous occasions defendants have
purposely thwarted the effectiveness of the statute." These
included Defendants' failure to act in good faith to raise the
necessary funds to clean up the facility.
*** In the Matter of: A.Y. McDonald Industries. Inc.. RCRA
Appeal No. £6-2 (Final Decision; July 23, 1987): The CJO reduced
the ALJ's 25% "good faith" adjustment for one count to 5%, ruling
hat while the violator had self-reported its failure to notify
EPA of hazardous waste activity, it did so only through its
notification efforts for a new facility. " [S] ignif icant
reductions should be reserved for those cases where the violator
promptly reports its noncompliance ... once discovered or
suspected."
*** In the Matter of: Omark Industries. Docket No. RCRA (3008)
85-10-09 (Initial Decision; January 6, 1987): In this case, the
Respondent had a policy of requiring partially filled drums to
be checked by a chemist before disposal. The Respondent's
violation resulted from the company's failure to follow its own
policy in this instance. The ALJ reduced the proposed penalty
reduced by :>5%, partially in recognition of this compliance
program. D>icided by Judge Nissen.
Public Interest Research Group of New Jersey. Inc. v. Powell
Duffryn Terminals. Inc.. No. 89-5831 (3rd Cir. 1990; August 20,
1990) at 34-35: The Court of Appeals reversed the District
Court's redaction of a GBP, due of "good faith", because of the
actions and/or non-actions taken by the Defendant due to the
USEPA's and the NJDEP's failure to act more diligently in making
defendant comply. The District Court had found that, had the
government acted properly, "the violations would have ceased Icr.g
ago. Therefore, these two governmental bodies are partially to
blame for the defendant's lack of compliance for the years at
issue." The Court of Appeals reversed: The "mere failure by
governmental agencies to prosecute an NPDES permit holder doe?
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-20-
not allow a court to reduce a penalty." While there may be
instances where a district court may consider a government
agency's inaction and the permittee's reaction when setting civil
penalties "as justice may require where a defendant has failed in
a good faith attempt to comply with its permit because of
technical or economic problems and the EPA has affirmatively
recognized and excused noncompliance", this was contradicted by
the record in PIRG which showed that "defendant, motivated
possibly by greed or apathy, chose to procrastinate—"
***
In the Matter_o£:
Landfill. Inc.. RCRA (3308) Appeal No. 86-
8 (Final Decision; November 30, 1990): EPA charged the
Respondent with failing to maintain an adequate groundwater
monitoring system by improperly placing its wells. The
Respondent's defense was that EPA was estopped from alleging the
violation because the State had approved the location of wells
prior to their installation. This defense was rejected for
purposes of liability, but the Chief Judicial Officer upheld the
ALJ's findings that, "the respondent installed the monitoring
wells at their present location at great expense and with the
advice and complete approval of the State. The undersigned is of
the view that a nominal penalty of $250 should be assessed ..."
*** In tl}e Master of; Union Oil Company of California. Docket
No. RCRA-09-84-0223 (Initial Decision; January 14, 1985) ("!T::-.e
environmental problems arose in this case because of the mist^r-.en
or erroneous action by the EPA and the State, and appears to •-.-ive
been resolved promptly once the mistake or error was corrects-i.
Accordingly, it is concluded that no penalty should be assess-::."
Decided by Judge Harwood.
*** The Marlev Cooling Tower Co.. Docket No. RCRA-09-88-OOCr
(Decision and Order; November 30, 1989): Respondent violated
RCRA, inter alia, by failing to demonstrate, financial assurar. •••
for bodily and property damage to third parties. One of
Respondent's defenses was that it in numerous discussions wi::.
California officials regarding its closure plan no deficienci---=
had been mentioned. The ALJ found that, "[wjhile ... lack ct
knowledge is ordinarily not used as a basis for reducing the
penalty, respondent's reliance upon guidance from [the State; •
evidence of-its good faith, supporting a 25% reduction in tlv-
gravity-based penalty." Decided by Judge Greene.
In re: General Electric Co.. Docket No. TSCA-IV-89-001.6
(Order on Motions for an Accelerated Decision; August 30, i'- •
Evidence that EPA employees rendered erroneous advice held
relevant and admissible for purpose of determining the
appropriate penalty. Decided by Judge Nissen.
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-21-
** United Stattes v. Lacks Industries. Inc.. No. G87-413 CA
(W.D.Mich.; June 22, 1990), reprinted is 32 ERC 1221: " [T] he
Court concludes that civil penalties of $250,000.00 are
appropriate in the present case for a number of reasons. First,
the failure of Lacks to comply with RCRA is, to some degree, the
result of ats reliance upon representations made to it by MDNR
[State] ofticials [that the lagoons were not subject to RCRA]."
U.S. v. Roll Coater. Inc.. Cause No. IP 89-828 C (Order
Following Isench Trial; March 22, 1991): CWA case (violations of
pretreatment standards): Due to a lack of effective
communication between EPA, defendant, and the state (Indiana had
af f irmativtily recognized and excused noncompliance) , no penalty
was assessed for time period prior to August 1988. The Court
found that, in delaying construction of plant while testing
technology at another site, defendant exercised "good faith."
2. DEGREi: OF WILLFULNESS AND/OR NEGLIGENCE
**• In th<
i Matter of; Ashland Chemical Company. RCRA (3008)
87-17 (Final Decision; November 15, 1989): "...
>poses an additional 5% reduction based on the absence
noncompliance. ... The record reflects no effort by
obtain advice from OEPA or U.S. EPA as to whether :_s
status had changed once its tanks became contamina:--a
Moreover, lack of knowledge of the legal require:--:-.:
be used to reduce a penalty for to do so might
.gnorance of the law." Decided by the CJO.
Appeal No.
Ashland pr<
of: willful
Ashland to
regulatory
with water
should not
encourage
*** In th Matter of: Standard Tank Cleaning Corp.. RCRA Ap
No. 91-2 C?inal Decision; July 19, 1991): Appeal of action
against company for failing to obtain liability insurance fo
accidental occurrences. In the underlying action, the Regio
proposed a penalty of $135,321.50, $110,312.50 of which was
"economic benefit of noncompliance." In his Initial Decisio
Judge Vandsrheyden found that "Respondent's conduct over a
protracted period of time ... displayed deliberate neglect,
indifference, or both," and increased the penalty to $145,31
The CJO dismissed Respondent's appeal as untimely.
*** In tha Matter of: Gordon Redd Lumber Company. RCRA Dock-
No. 88-01-R (Initial Decision; May 30, 1991). EPA's complai:
alleged storage and disposal of hazardous waste without inter
status or a permit, and Burnerous other violations. EPA prop
a $75,000 penalty. The'ALJ assessed a $20,000 penalty for
violations involving leaking garbage bags of K001 waste
determined to constitute a hazardous waste management "facil
The ALJ found, among other things, that "[a]Ithough Mr. Red:
certainly no Mother Theresa of the environment, one can cer1
understand his confusion and frustration resulting from th«r
[inconsistent] actions of the [State]." Decided by Judge ':
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-22-
*** |n the Matter pf: National Coatings. RCRA Appeal No. 86-5
(Final Decision; January 22, 1988): The CJO determined that the
dumping incident was accidental, and Respondent had no intent to
improperly dispose of the wastes. He therefore upheld the ALJ's
penalty reduction of 25% for lack of willfulness.
*** In the Matter of: Grumman St. Augustine Corp.. Docket No.
RCRA 87-18-R (Initial Decision; May 10, 1989): Respondent
failed, inter alia, to submit a Part B permit application. The
ALJ determined, among other things, that the Respondent's failure
to keep abreast of even the most minimal statutory and regulatory
requirements (it had not even obtained up-to-date copies of RCRA)
and correct its violations, despite repeated notice from EPA,
evidenced negligence justifying a 25% increase in the penalty.
Decided by Judge Yost.
In the Matter of; Riverside Furniture Corp. EPCRA-88-H-VI-
406S (Initial Decision; Sept. 28, 1989). The penalty amount was
not reduced despite the fact that Riverside "did not have actual
knowledge" of EPCRA requirements. The ALJ held that Riverside is
"charged with knowledge of the United States Statutes at large."
Publication of 40 CFR 372 in the Federal Register gave Riverside
"legal notice of the EPCRA regulations". Decided by Judge Jones.
In the Matter of Port of Oakland and Great Lakes Dredge
and Dock Co.. MPRSA Appeal No. 91-1 (Final Decision and Order;
August 5, 1992): The Port and dredging company violated the
Marine Protection, Research, and Sanctuaries Act, and a permit
issued thereunder. The Environmental Appeals Board adjusted its
gravity-based penalties for all three of the dredging and
disposal violations upward to reflect Respondent's culpability
for having intentionally dredged unauthorized sediments.
3.
HISTORY OF NONCOMPLIANCE:
*** In the Matter of: Grumman St. Augustine Corp.. Docket No.
RCRA (3308) 87-18-R (Initial Decision; March 10, 1988): Among
the ALJ's reasons for increasing Respondent's penalty by 25% were
Respondent's history of prior violations of RCRA, and EPA and
State Consent Orders thereunder. Decided by Judge Yost.
U.S. v, Roll Coater. Inc.. Cause No. IP 89-828 C (Order
Following Bench Trial; March 22, 1991): CWA case (violations of
pretreatment standards): Held: history of noncompliance refers
to past cases, not length of present violations.
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-23-
ABILITY TO PAY:
***
In the Matter of; Central Paint & Body Shop. IncT. RCRA
Appeal No. 86-3 (Final Decision; January 12, 1987): "RCRA does
not include ability to pay as one of the factors that EPA must
consider in assessing a penalty ... ability to pay is not an
element of IPA's proof ... Respondent, as proponent of a
reduction ir. penalty based on its financial condition [has] the
burden of proof ..." In this case, the Respondent's arguments
that it couldn't afford the penalty were deemed unpersuasive.
*** United States, et al. v. Production Plated Plastics. Inc..
et al. . File No. K87-138 CA (W.D. Mich.): The Defendants in this
case operated unpermitted seepage lagoons, delayed submission of
closure and groundwater monitoring plans, failed to comply with
RCRA's financial assurance and liability provisions, and did not
implement their groundwater plan. In assessing a $1.5 million
penalty for the violations, the Court rejected soundly the
Defendants' primary defense of "inability to pay." The Court
scrutinized the evidence adduced at trial, including Defendant
Michael J. ijadney's (the majority shareholder) personal income
tax returns and his and the companies' assets, in establishing
that Defendants had the financial ability not only to comply with
RCRA but to pay a meaningful penalty as well. While recognizing
that "the pmalty is certainly large enough to hurt," the Court
'found that "Defendants currently have assets whic: can be
liquidated ;o satisfy the requirements of this Court's Judgment"
(estimated ay the Judge to require roughly $4.5 million in
expenditures). (Emphasis added). In acknowledging that the
Defendant would likely need to liquidate assets to satisfy the
judgment, the Court considered, among other things, the
availability of discretionary assets, Defendants' investments in
speculative ventures, and the fact that several million dollars
of assets were channelled away from PPP into related
corporations.
In the Matter of: Dr. Marshall C. Saaser. Docket No. 404-89-
102 (Initial Decision; July 30, 1991): Respondent held liable
for filling a wetlands without a permit in violation of Clean
Water Act Section 4C-- and penalized $125,000. The Court
determined that the spondent had the "ability to pay" the full
assessed penalty, bu- permitted him to pay in installments
because mary of his assets were non-liquid (an ironic holding,
since this is a "water" case). Decided by Judge Yost.
In the .Matter of; Sporicidin International. FIFRA Appeal No.
86-2 (Final Order; June 4, 1991): Action against seller of
alleged sterilizing agent for misbranding a pesticide and making
unauthorized claims. The CJO affirmed the Ini-ial decision
assessing a $10,000 penalty. Respondent may assumed to have
the ability to pay a penalty where EPA allege t can pay and r
Respondent fails to challenge "'-.*? allegation.
-------
-24-
In the Matter of; Timothy R. Ward. TSCA-VII-86-T-635,
(Initial Decision; November 24, 1987): In this case involving
the improper disposal of PCBs on a rural roadside, the ALJ held
that the requirement that the Agency consider ability to pay when
assessing penalties "should not suggest or imply that payment of
the penalty assessed will be without pain or borne with complete
facility; rather, it should be in such amount that Respondent,
and others similarly situated, will choose to comply with
pertinent regulations, promulgated for the protection of the
public, rather than pay an appropriate penalty.". This case is
significant in that it supports the proposition that civil
penalties should have an economic impact on the violator.
Decided by Judge Jones.
*** F & K Plating Co.. RCRA (3008) Appeal 86-1A (Final Decision;
October 8, 1987): The ALJ reduced the violator's penalty by 25%
based on, inter alia/ "inability to pay." On appeal, the CJO
determined that the Respondent's unverified balance sheet and
shop manager's uncorroborated testimony, standing alone, were
inadequate to demonstrate "inability to pay." Likewise, unsworn
assertions by counsel for Respondent were entitled to no weight.
The CJO determined, however, that based on the record as a whole,
F & K deserved some "inability to pay" adjustment. The case was
remanded to the Regional Administrator to determine an
appropriate reduction. F & K was counseled that it "must fully
support any alleged inability to pay with detailed and credible
documentation," preferably regular financial statements, tax
returns, or independent audits.
*** In the Matter of: National Coatings,Inc.. Docket No. RCRA
(3008) V-W-84-R-052 (Initial Decision; June 20, 1986): Where
the evidence indicates that the penalty is not beyond the
Respondent's ability to pay, but the Respondent may be unable
to pay the penalty in one lump sum, the Respondent should be
permitted to apply to the Regional Administrator to pay in
installments. Decided by Judge Harwood.
*** United States v. Maiorano. No. 87 C 4491 (N.D. 111.; January
8, 1990), reprinted in 20 ELR 20444: "Although the ability to
pay may warrant consideration in some circumstances, the Court
does not view it as a particularly significant factor in this
case. Defendants have never provided evidence concerning their
financial circumstances, despite numerous opportunities to do so.
[Footnote omitted] Furthermore, defendants have been so
intransigent that they are in no real position to request mercy
based on their personal circumstances."
-------
-25-
5. OTHER UNIQUE FACTORS:
Note: The primary application of this adjustment factor is
to re::lect "litigation risks" in settlement; hence there are
relatively few decisions wnere it plays a significant role
in tho penalty determination.
**• In tha Matter of: Millipore Corp.. Inc.. Appeal No. 86-7
(Final Decision; December 2, 1987): The CJO reduced the
Respondent's penalty by 40% to reflect, inter alia, the "unusual
c:Lrcumstan:es" of the Puerto Rico Environmental Quality Board
failing to follow its own rules by not responding to the
Respondent's proposed closure plan in a timely fashion (the delay
had contributed to the severity of the violation).
*** In tha Matter of: Elwin G. Smith Division. Cvcloos
Corporatio:
The CJO af
for failin
closure pi
planning a
concerning
Respondent
the contra
!, Appeal No. 86-6 (Final Decision; August 14, 1990):
firmed the reduction of the violator's penalty by 25%
j to submit a Part B application and/or develop a
in. The Respondent had cooperated fully in the
id execution of an elaborate "sting" operation
a contractor hired by the violator even though the
was not charged with any improper conduct regarding
:tor.
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ROBEHT K.
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COMMITTEE ON I ^TELLIGENCE
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TAX POUCV AMO
October 16, 1992
Mr. Gnigory Lind (RC-3-2)
United Stat«» EPA, Region XX
Of fie* of Hagional Counsel
75 Havihorn* Str««t
Frmcisco, California 94105
STRATEGIC PfKNSC INfTlAt
INTERNATIONAL NARCOTICS CC
TOROMSM
CIVIL RMHT1
AMERICANS MISSIMG IN AC.
HiS»AMC CAUCUS
HUMAN NQMTS CAUCUS
D«ar Mr. Lind:
On October l, 1992, I racaivad an anviron»antal navs ralaaaa
from tha Unitad Stataa Environaantal Protection Agancy announcing
that it had isauad anforcamant ordara againat aavaral California
companies for withholding information concerning their hasardoua
waata generation and handling practicaa. To my utter diabalief ,
tha cemplaints propoaed penalties totalling $77,900 for tha
violations.
] immediately contacted Air Industries Corporation, a'
manufacturer in my district of Garden Grove, CA and learned that
the company was negligent in completing a Determination of
Violation, Compliance Order form correctly. As I understand it,
this i!orm was designed to report the amount of hazardous waste
being generated at each of the companies' respective facilities as
required under Section 3008 (a) (1) of the RCRA Act. Air
Industries, which employs a workforce of 500 and ia considered by
state officials to be a model manufacturing site in terms of
treatment and storage of hazardous waste materials, was fined an
astouiding $11,400. for a clerical error. Tha apparent problem waa
tha incorrect marking of a box on the compliance form. What is
clear is that Air Industries did not seek to purposely deceive
anyone. It waa simply an error for which an $11,400 ift
excessive.
In my opinion) this ia completely unacceptable. Today's small
bus ir esses are having a hard enough time trying to stay afloat let
alone find ttnr.meana to pay excessive fines levied by bureaucrats
in Washington and Sacramento for honest mistaXaa.
*.s Air Industries attempts to negotiate a settlement with the
U.S. Environmental Protection Agency over this discrepancy, I urge
you and your colleagues to appreciate the company's fine record
with regards to management of hazardous waste and to take into
. on m-*Mi
OIITWCT omct. x» n*
-------
Mr. Gregory Lind (RC-3-2)
Pag. 2
Octobar 16, 1992
account tha impact such a larga fin* vould hava on
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11
Robart X. Dornan
U.S. congraaavan
cc:: Willian Railly
Adnini»trator, Onitad Stataa EPA
Robart Gaoghan
Vica Praaidant, Air Znduatriaa Corporation
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INSPECTION PARADIGMS REVISITED
BE PROACTIVE, NOT REACTIVE!
OVERHEAD*!
TITLE: I ispection Paradigms Revisited
KEY POISTS:
• Over the past few days, you have experienced a variety of circumstances related to
conducting facility inspections. Over the next hour, we will:
— Review the importance of taking a proactive approach when conducting a
facility inspection
— Discuss how the information gained during the Institute has helped expand
our inspection paradigms
— Discuss ways we can apply knowledge gained during the Institute to
day-to-day job performance
— Identify technologies that can be used to enhance performance of
inspections.
• We will also be revisiting the exercise you completed during the Exploring
Inspection Paradigms module to see how our paradigms may have changed and
been influenced by the course.
XIII-1
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EXPLORE NEW INSPECTION
PARADIGMS
OVERHEAD #2
TITLE: Explore New Inspection Paradigms
KEY POINTS:
• It is important to look at how we are currently conducting inspections, and
engaging in pre-inspection and post-inspection activities in order to better
understand why our present paradigms are the way they are, and to explore new
paradigms. The exercise we have just conducted has helped us do that today. By
exploring new possibilities, we may be able to perform our jobs better and really
make a difference to the RCRA program and the environment.
• Constantly ask yourself questions that could help you expand your present
paradigms and look to new and different ones. A new approach may not
necessarily be better, but we need to be willing to look at it with open eyes in
order to decide on its possible effectiveness.
• Your Participant's Manual contains a chart that illustrates five steps in the EPA
RCRA inspection process. You may want to use this chart as a guide that you can
expand upon or revise as you continue to explore your inspection paradigms.
XIII-2
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IDENTIFY USEFUL TECHNOLOGIES
OVERHEAD #3
TITLE: Identify Useful Technologies
KEY POINTS:
• Now that we have discussed what we, as inspectors, can do to understand and
explore our individual inspection paradigms, let's ask ourselves what types of
technologies could be used to help make our jobs easier. The idea is to generate
suggestions that might help guide our paradigms for the RCRA program and the
conduction of inspections.
XIII-3
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LOOK TO THE FUTURE
OVERHEAD #4
TITLE: Look to the Future
KEY POINTS:
As we near the close of the Institute, it is time to ask ourselves what we can do
with the information that we have learned. We have talked about developing
inspection approaches, looking at these approaches to see how we might
improve them, and identifying resources and technologies that could help us.
Continue to think about where the RCRA program is going, how we might
make a difference and, with only a few years until the turn of the century, how
we as inspectors should proceed into the future in our efforts to meet the goals
of the RCRA program. Much can change by working from the bottom up.
Don't expect management to come up with new ideas. The process starts with
you!
By being aware of and preparing for the future, we are less likely to get stuck in
the paradigms of the past.
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REACH TO THE FRINGES
OF YOUR PARADIGMS
IE)—•
OVERHEAD #5
TITLE: Beach to the Fringes of Your Paradigms
KEY POINTS:
• We encourage you to reach to the fringes of your paradigms, moving into the
future with new and innovative ideas for conducting inspections and improving
the RCRA program.
XIII-5
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INSPECTION PARADIGMS REVISITED
"NEW PERSONAL INSPECTION APPROACH"
NEW PARADIGM PRE-INSPECTION APPROACH:
NEW PARADIGM INSPECTION APPROACH:
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NEW PARADIGM POST-INSPECTION APPROACH:
Please ieel free to continue on the back if the space provided is not sufficient.
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U.S. EPA Headqya!ters4ibrgtry
Mail ct./jo**!*e
1200 Penrsvvsin^ *«.•••• ni
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