Oil Spill Prevention: Understanding the Memorandum of Understanding

(Or, where DOT ended, EPA begins!)

A recurring question often arises when we prepare Spill Prevention, Control and Countermeasure (SPCC) Plans for clients who load or unload tankers, deliver oils to customer locations, or maintain a fleet of tanker trucks or railroad cars that may or may not remain at their facilities for a time. Are these road or rail tankers subject to SPCC requirements when they’re parked at the facility? And so, do we need to count the tanker capacity when determining if the SPCC rule even applies?

The answer is complicated (of course). It requires an understanding of when or if the truck or rail tanker ceases to be “transportation-related” equipment subject to regulation by the Department of Transportation and instead should be considered “non-transportation-related” equipment addressed by the EPA’s Oil Pollution Prevention rules (40 CFR Part 112).

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Waters of the US: A New Hope

On December 11, 2018, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) proposed a revised definition for “waters of the United States,” intended to establish the scope of federal regulatory authority under the Clean Water Act in a more clear and understandable way. With the understanding that the federal role under the Clean Water Act is  derived from Congress’ commerce power over navigation, the proposal attempts to limit “waters of the United States” under the Clean Water Act to those that are physically and meaningfully connected to traditional “navigable” waters.

Six (6) categories of waters that would be considered “waters of the United States” are described:
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Nanotechnology and TSCA Reporting

(Resisting the urge to make an obscure Mork and Mindy reference – or an even more obscure mention of Fantastic Voyage…)

EPA has issued guidance on complying with the new Nanotechnology Reporting and Recordkeeping Rule, published in January with an effective date that has been extended to August 14, 2017. The rule establishes one-time reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale (i.e., materials that are solids at standard temperature and pressure; that are manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers – that’s one to one hundred billionths of a meter – in at least one dimension) for the purpose of demonstrating one or more unique, size-dependent properties that would not be present in larger materials. Reporting for existing nanomaterials that have been manufactured or processed in the three years prior to the effective date will be due by August 14, 2018.

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Rolling Back the Definition of “Waters of the US”: Good Move or Bad?

The US Environmental Protection Agency (EPA) and Army Corps of Engineers are set to roll back the regulatory definition of “waters of the United States” according to a proposal published on June 27. The definition was amended under the controversial 2015 “Clean Water Rule”, which critics charged would extend federal regulatory protection to isolated ponds and wetlands, usually dry depressions with no conceivable connection to interstate waterways, even puddles formed in a heavy rain. The 2015 rule has been stayed since October of that year, so the definition previously in place has remained in effect. This proposed rule will re-codify the previous definition as it existed prior to the 2015 rulemaking.

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DC Court Shreds EPA Solid Waste Recycling Rule

The Court of Appeals for the DC Circuit has vacated provisions of EPA’s 2015 Definition of Solid Waste Rule which addressed recycling of hazardous secondary materials (i.e., spent materials, byproducts and sludges). The court’s majority took issue with (1) one of four tests to demonstrate that recycling by or under the control of the generator was legitimate, and not a “sham” effort to disguise disposal, and (2) the “Verified Recycler Exclusion”, which excluded recyclable secondary materials from the definition of solid waste and therefore from regulation as hazardous waste, provided that the recycling facility has a hazardous waste facility permit or a variance from permit requirements granted by EPA or the State.

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What’s New for 2016 TRI Reporting (and a gentle reminder)

The July 1 due date for Toxic Release Inventory (TRI) reporting (i.e., Form R or Form A reports) is again coming up. A few notable changes to reporting requirements affect 2016 submissions:

  • A new chemical has been added to the TRI reporting list for 2016. In November 2015, EPA added 1-bromopropane, used primarily in various industries as a solvent/degreaser. If the reporting thresholds for manufacture, processing or other use of this chemical were exceeded at your facility in 2016, it must be reported.
  • The TRI-ME web application for report preparation and submission has been updated! We have done a run-through of the revised program and found that, just as EPA claims, the “modernized” version of TRI-ME web does make the process more streamlined and simplified. It just looks better, too.

Remember, you must use the TRI-ME web application (accessed through EPA’s Central Data Exchange at cdx.epa.gov) to submit and certify annual TRI reports. If you’re unfamiliar with the application or need help with any aspect of TRI reporting, please contact T. Cozzie Consulting for assistance.

Generator Improvement Rule: Relief for Hazardous Waste Generators?

Well, certainly some relief for the very little ones – what we used to call “conditionally exempt small quantity generators” – henceforth (or beginning on the effective date of the Environmental Protection Agency’s Hazardous Waste Generator Improvements Rule, published in the Federal Register on November 28, 2016) to be known as Very Small Quantity Generators or VSQGs.

The Hazardous Waste Generator Improvement Rule, which EPA describes as the culmination of a review that began over 10 years ago, is meant to “improve program effectiveness, reduce compliance costs, and foster an improved relationship with states and the regulated communities.”

The final rule contains a number of provisions which EPA identifies as “more stringent”, including marking and labeling of wastes to identify hazards, Small Quantity Generator recertification, notification of facility closure and requirement that a Large Quantity Generator close as a landfill if it cannot meet closure standards, extending biennial reporting for the whole year rather than just months when the facility was an LQG, biennial reporting for recyclers even when they do not store waste prior to recycling, and a requirement that LQGs provide a “quick reference guide” for distribution with their Contingency Plans. “More stringent” standards must be adopted by states that manage their own hazardous waste programs.

The rule also contains “less stringent” provisions, of a kind that may elicit appreciative nods from industries. These address (1) consolidation of VSQG waste at a LQG facility under the same ownership; (2) allowing VSQGs and SQGs to retain their classification in the event that “episodic generation” would bump them up to a higher generator category; and (3) waiver from the requirement that ignitable and reactive wastes be stored at least 50 feet from a facility’s property line under certain circumstances.

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Alert! TSCA Chemical Data Reporting Deadline Nears

>> UPDATE: EPA has announced that the deadline for Chemical Data Reporting submissions has been extended to October 31.

The period for submission of 2016 reports required under the Toxic Substances Control Act (TSCA) Chemical Data Reporting rule ends on September 30th. The reporting requirement applies to any person that manufactured or imported, in any year from 2012 to 2015, listed chemicals in more than threshold amounts (generally 25,000 pounds, though a lower threshold of 2,500 lbs has been set for toxic chemicals that are subject to certain TSCA actions), unless exempted as a small manufacturer. Some 80,000 chemicals are on the TSCA list.

A sample reporting form (“Form U”) and instructions to help guide you through the reporting process can be found at the EPA Chemical Data Reporting website. The reports must be submitted online, using the EPA’s Central Data Exchange system (cdx.epa.gov). You will need to add the program area CSPP: Submissions for Chemical Safety and Pesticide Programs to your profile on CDX to activate this reporting option, if you haven’t already done so.

If you have questions about the Chemical Data Reporting requirements or submission process, please contact T. Cozzie Consulting for immediate assistance.