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Volume 3: Complying with Environmental, Health And Safety Requirements for Activities Involving Hazardous Chemicals

Lorraine O'Donovan, EHSQ Alliance Affiliate

This is the third book in a multi-part series explaining the regulations triggered when your organization acquires and uses chemicals. This volume focuses on hazardous materials transportation, underground storage tanks, hazardous waste management requirements, air quality, and water quality. 

By JON F. ELLIOTT BSE, MPP, JD, writing for SPECIALTY TECHNICAL PUBLISHERS (STP), an EHSQ Alliance Affiliate. 

HAZARDOUS MATERIALS TRANSPORTATION 

Federal and state laws impose comprehensive requirements on the transportation of both hazardous materials and hazardous wastes. Primary responsibility is assigned to the US Department of Transportation (DOT), which divides its responsibilities among several of its constituent agencies. The Pipeline and Hazardous Materials Safety Administration (PHMSA) defines hazardous materials and promulgates most technical and procedural standards for hazardous materials transport in its Hazardous Materials Regulations (HMR). Other DOT units oversee requirements applicable to certain modes of transport, and incorporate HMR provisions into those requirements [e.g., Federal Motor Carrier Safety Administration (FMCSA) regulates motor carriers and drivers, and Federal Railroad Administration regulates railways]. DOT’s requirements generally conform to those issued under the “United Nations Recommendations on the Transport of Dangerous Goods” (the UN Recommendations).

Many practitioners refer to the federal law by its former acronym “HMTA” – which stood for the Hazardous Materials Transportation Act –so the following discussion will do so as well (there presently is no “name” for these requirements, which are codified as Chapter 51 of Title 49 of the United States Code). HMTA provisions apply to most forms of transportation, including motor vehicles, rail, aircraft, and vessels. Since most organizations obtain their hazardous materials from offsite, HMTA labeling and packaging requirements apply at least until the point these materials reach facility loading docks for offloading. If an organization subsequently ships materials or products with hazardous components, HMTA requirements apply at shipping docks as well.

Defining Hazardous Materials

HMTA defines hazardous materials as those that might create an “unreasonable” risk to health and safety or property while being transported. Regulated materials include thousands of hazardous materials listed in PHMSA’s HMR. PHMSA also incorporates by reference hazardous wastes subject to EPA “manifest” requirements, which EPA has structured to be compatible with HMTA requirements (see below).

PHMSA assigns hazardous materials to classes of materials (and sometimes subclasses and divisions) that present similar risks. Each class and division of hazardous materials triggers particular packaging, labeling, handling, and registration requirements. Classification standards are (sometimes) as follows:

Class 1 - Explosives
Class 2 - Hazardous Gases and Cryogenic Liquids
Class 3 - Flammable and Combustible Liquids
Class 4 - Flammable and Combustible Solids
Class 5 - Oxidizers
Class 6 - Poisons
Class 7 - Radioactive Materials
Class 8 - Corrosives
Class 9 - Miscellaneous Hazardous Materials.

 

Regulation of “Transportation in Commerce”

HMTA regulates the “transportation in commerce” of any amount of a designated hazardous material. It covers shipments that are interstate (origin and destination in different states) as well as intrastate (origin and destination within the same state). Specific requirements depends on the hazard class of the material, the quantity of material being shipped, the type of carrier, and the type of container holding the hazardous material. As interpreted by DOT, “transportation in commerce” includes actual movement in commerce, as well as loading, unloading and activities “incidental” to that movement before and after transport.

PHMSA reduces regulatory requirements for shipments of limited quantities of “materials of trade” by parties whose primary activities are unrelated to transportation, but who transport limited quantities of hazardous materials on motor vehicles as incidental parts of their primary activities. These cover specified quantities transported:

  • “For the purpose of protecting the health and safety of the motor vehicle operator or passengers” [e.g., insect repellent].
  • “For the purpose of supporting the operation or maintenance of a motor vehicle (including its auxiliary equipment)” [e.g., spare battery and engine starting fluid].
  • “By a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle” [e.g., limited quantities of hazardous materials transported by utility service personnel, plumbers, or welders for use at worksites].

 

These exceptions apply to some movements of hazardous materials between facilities owned or operated by the same organization. Non-exempt inter-facility shipments are subject to hazardous materials transportation requirements.

Transport Regulations

DOT regulations are organized to address both the range of activities involving hazardous materials, and the individuals and corporate “persons” who undertake these activities. PHMSA regulations cover the following activities:

  • Identification and classification of hazardous materials [summarized above].
  • Manufacture of packaging and transport containers, to meet performance-based standards tied to chemical hazards.
  • Labeling, marking, and placarding of containers and vehicles for transportation.
  • Vehicle design, construction, operation and maintenance.
  • Use of shipping papers during transport.
  • Emergency response information, provided on shipments (for onsite use) and also available at shipper’s location (for additional information, if necessary).
  • Training of personnel involved in hazardous materials transportation (“hazmat employees”), including initial and recurring training in general and task-specific information.
  • Regulation of hazardous materials transporters (by states); and registration with states.
  • Hazardous materials safety permit, for any party involved in shipments that exceed applicable thresholds.
  • Security plans for personnel, facility, and “en route” security requirements if shipments of specified materials exceed thresholds.
  • Incident reporting.
  • Record keeping.
  • Enforcement and liability.

 

Specific requirements depend on the classes and hazards of hazardous materials acquired, used and/ or shipped from a facility, and on the range of onsite activities. Many of the onsite requirements mesh closely with OSHA’s worker protection standards (see Volume 2 in this series).

UNDERGROUND STORAGE TANK SYSTEM REQUIREMENTS

In 1984, Congress adopted a national program to regulate underground storage tank (UST) systems storing petroleum and other hazardous substances (the UST Law). EPA establishes national standards. State agencies administer the federal UST rules, and may also administer stricter state standards. Many states also administer state financial responsibility programs, to ensure the UST owners and operators meet federal requirements to be able to pay for cleanups.

Defining Regulated Hazardous Substances

The UST Law regulates the storage of “hazardous substances,” which include the following:

  • Gasoline and other petroleum products (including crude oil)
  • Substances for which reportable quantities (RQs) have been established under federal Superfund law to define release reporting responsibilities
  • Toxic and nonconventional pollutants (also called “priority pollutants”) regulated by the Clean Water Act (CWA) (see below)
  • Any other hazardous substance designated by EPA (none to date).

 

Defining Regulated UST Systems

The UST Law regulates individual USTs, and complete UST systems including piping and monitoring. A tank is regulated as “underground” if at least 10 percent of the total capacity of the entire UST system (including piping) is below grade. However, the UST Law excludes the following from the definition of USTs:

  • Any UST system with a capacity of 110 gallons or less;
  • Farm and residential fuel tanks with a capacity of 1,100 gallons or less;
  • Tanks storing heating oil for onsite use;
  • Septic tanks;
  • Pipeline facilities associated with oil or gas production and gathering activities;
  • Surface impoundments, lagoons, pits, and ponds [generally regulated under water quality and hazardous waste laws];
  • Storm water and wastewater collection tanks (generally regulated under water quality laws);
  • Flow-through process tanks; and
  • Tanks that are on or above the floor inside underground areas (such as basements).

 

EPA regulations exempt the following UST systems from technical standards and corrective action requirements:

  • USTs in wastewater treatment systems
  • USTs containing regulated substances for operational purposes in equipment or machinery (such as oils in transformers)
  • USTs used for emergency spill or overflow containment, so long as they are “expeditiously emptied after use.”

 

EPA started regulating these previously unregulated categories of USTs in 2015:

  • USTs containing radioactive material regulated under federal atomic energy laws
  • USTs that are part of an emergency generator system at nuclear power plants regulated by the Nuclear Regulatory Commission (NRC)
  • Airport hydrant fuel distribution systems
  • USTs with field-constructed tanks.

 

Regulating UST systems

The UST Law and EPA regulations establish detailed technical requirements for the following:

  • Registration with state regulators
  • UST system installation (including design and construction requirements for USTs and system components including piping and monitoring; and certification for installers)
  • Operating requirements, including ongoing monitoring and leak detection (including system requirements and operator training
  • Release reporting and corrective action
  • Recordkeeping
  • Closure
  • Financial responsibility.

 

EPA revised many requirements in 2015, with a variety of compliance deadlines through October 13, 2018. 

HAZARDOUS WASTE MANAGEMENT REQUIREMENTS

Federal and state laws provide for “cradle to grave” regulation of hazardous wastes. The federal hazardous waste laws generally are known as the Resource Conservation and Recovery Act (RCRA) of 1976. This legal framework has been constructed in several steps, including the Solid Waste Disposal Act (SWDA) of 1965, RCRA itself, the SWDA Amendments of 1980, the Hazardous and Solid Waste Amendments of 1984 (HSWA), and even sections of the Superfund Amendments and Reauthorization Act of 1986 (SARA). The RCRA framework continues to evolve, with occasional statutory revisions and frequent regulatory updates.

The US Environmental Protection Agency (EPA) is primarily responsible for RCRA, including the development of national regulations and standards, and nationwide administration of the hazardous waste program. However, national policy encourages individual states to seek “authorization” from EPA to implement some or all RCRA provisions. States that obtain RCRA authority merge it into their ongoing administration of state hazardous waste laws, which may have additional and/or stricter requirements than the federal ones summarized in this discussion.

Defining Regulated Hazardous Wastes

Laws and regulations discussed in the first two volumes of this eBook series apply based on the presence of the hazardous chemicals (hazardous materials, hazardous substances) they regulate, based on their physical and biological properties, with little or no consideration whether they are pre-use inputs to your activities, or post-use products or wastes. In contrast, RCRA and other hazardous waste requirements apply only after a hazardous chemical has become a waste. This focus means you must determine whether a particular mass of materials is a “waste,” and if so, whether it’s “hazardous.”

Note: RCRA was adopted as amendments to the earlier SWDA, so the legislation defines all hazardous wastes as a subset of “solid waste.” Because SWDA developed that term to distinguish wastes that should be deposited into landfills from wastes that can be discharged into waterways, “solid waste” includes solids, semi-solids, liquids, and even contained (compressed) gases. Don’t think about the “physical states of matter” you learned in science classes, think about disposal practices…

Is it Waste?

To be a “waste” under SWDA/RCRA, the material must meet one of the following qualifications:

  • “Discarded,” which EPA regulations define to include those which are “abandoned” by burning, treatment, "sham recycling," or disposal – or are being held even though they should be managed by one of those methods
  • Recycled (yes, even though recycling means you’re recovering value)
  • “Inherently wastelike” (e.g., off-specification or contaminated materials, or materials no longer useable or to be used for the purpose for which they were acquired)
  • Military munitions, when spent, deteriorated, or being held for disposal.

 

If your organization holds a material when it first becomes a “waste,” then RCRA defines you to be the generator, and imposes the management requirements described below. Because RCRA was enacted to address mis-management of wastes, EPA’s regulations and policies include extensive attention to materials that should be managed as wastes, but instead are accumulated speculatively or held without a definite plan for appropriate management.

Is it Hazardous?

RCRA and EPA’s definitions apply a variety of criteria to determine if a waste is “hazardous.” These include:

1. Characteristic waste: does the waste exhibit any of the following characteristics to the extent that RCRA considers it actually hazardous (“D-wastes”):

  • Corrosivity (D002)
  • Ignitability (D001)
  • Reactivity (D003)
  • Toxicity (D004 – D043)

 

2. Listed waste: does the chemical or waste appear on one of EPA’s regulatory lists:

  • Hazardous waste from nonspecific sources (“F-Wastes”)
  • Hazardous waste from specific sources (“K-Wastes”)
  • Discarded commercial chemical products, offspecification species, container residues, and spill residues, divided into two classifications, as follows:

 

3. Toxic wastes (“U-Wastes”)

4. Acute hazardous wastes (AHW), which are considered particularly dangerous (“P-Wastes” plus six “F-Wastes”).

In addition, EPA and states apply the “mixture” and “derived-from” rules. Most mixtures containing a hazardous waste, or that are derived from treatment of a hazardous waste, continue to be regulated as hazardous wastes unless you demonstrate that the material is no longer hazardous. While this is intended to ensure that “dilution is [not] the solution to pollution,” it can complicate assessments of multi-step processes.

Generators can evaluate wastes for characteristics by employing specific tests specified by EPA, and/ or can search for the sources of their wastes on EPA’s lists. EPA also allows you to apply “the generator’s knowledge” of the waste – many generators save the cost of testing wastes they believe will qualify, and simply decide to manage such wastes as hazardous.

Does it Qualify for an Exclusion?

RCRA excludes a number of waste materials that might meet one of the “hazardous” criteria described above. Exclusions include solid or dissolved material in domestic sewage and point source industrial discharges into waterways (which instead are subject to the Clean Water Act; discussed below), and spent nuclear waste materials. In addition, EPA regulations exclude a wide variety of additional specific wastes, when they are managed in specified ways (usually by re-depositing them into onsite processes, or by recycling). These include qualifying wood, petroleum, broken cathode ray tubes (CRTs) and glass removed from CRTs, and solvent-contaminated wipes.
 

Does it Qualify For Special Requirements?

EPA also applies less stringent waste management requirements to some qualifying wastes, including the
following:

  • Used oil (i.e., engine/lubricating oil)
  • Spent lead-acid batteries (types used in motor vehicles and backup generator packs)
  • Recyclable materials (including reclaimed industrial ethyl alcohol, scrap metal, and certain oil-bearing wastes)
  • Universal wastes – including other types of spent batteries; waste pesticides; waste mercurycontaining thermostats and equipment; and waste lamps (e.g., fluorescent tubes).

 

In contrast, EPA also defines “acute hazardous wastes (AHW)” that are subject to lower volume thresholds and stricter standards. In addition, wastes that are both hazardous and radioactive are subject to dual regulations as “mixed” wastes.

Managing Hazardous Wastes Onsite

RCRA provides extensive regulation of hazardous waste generators. This begins with the filing of a Notification Form (EPA Form 8700-12) with EPA or your state in order to secure an “EPA Identification (ID) Number” for your facility, and includes requirements for onsite management of hazardous wastes, use of a manifest when hazardous wastes are shipped offsite for management, and recordkeeping and reporting requirements.

Categories of Hazardous Waste Generators

EPA defines three classes of generators, and provides for the following different levels of regulation:

  • Fully regulated, or large quantity generators (LQGs), generate at least 1,000 kg per calendar month of hazardous waste, or more than 1 kg per month of AHW. LQGs are subject to all RCRA generator standards.
  • Small quantity generators (SQGs) generate more than 100 but less than 1,000 kg per calendar month of hazardous waste (including no more than 1 kg of AHW), and accumulate no more than 6,000 kg. SQGs benefit from some streamlining of requirements.
  • Very Small Quantity Generators (VSQGs) - previously, conditionally exempt small quantity generators (CESQGs) - generate no more than 100 kg per calendar month of hazardous waste, and no more than 1 kg per month of AHW, and accumulate no more than 1,000 kg. These generators are exempt from RCRA requirements so long as they comply with applicable waste management requirements.

 

EPA also offers special provisions for management of hazardous wastes by “eligible academic laboratories.”

Onsite Management Requirements

Generators must implement specified onsite management practices, which include the following:

  • Containment – accumulate waste in containers or tanks, on drip pads, and/or in containment buildings that meet specified technical standards; segregate incompatible wastes; use containers compatible with wastes and in “good condition;” keep containers closed; and inspect them at least weekly
  • Labeling – of each container or tank with the words “Hazardous Waste;” waste properties; generator name and address; and the date accumulation began
  • Spill prevention – such as secondary containment
  • Hazardous waste contingency plan (for LQGs, and less detailed requirements for others)
  • Waste minimization activities (EPA provides guidance and requires self-certifications on shipping manifests)
  • Training – of each hazardous waste handler in applicable responsibilities
  • Time limits on accumulation – which vary across categories of generators and include special provisions (see immediately below)
  • Reporting and record keeping.

 

Accumulation time limits vary. LQGs cannot accumulate hazardous waste in any container onsite for more than 90 days, without a separate TSD facility permit as a “storage facility”; the 90-day period applies separately to each container and is calculated from the first day it receives any hazardous waste. In contrast, SQGs can accumulate hazardous wastes for up to 180 days (270 days if the wastes are eventually shipped more than 200 miles). RCRA places no time limit on VSQGs (although some states do). As an exception to these time limits, "satellite accumulation" rules let generators accumulate hazardous waste at the “point of generation” (immediately adjacent to a process line, for example), if wastes are under the control of the process operator, are stored in non-tank containers compatible with the materials, and the containers are labelled to identify their hazardous waste contents and the date accumulation began. When the container is full (or no more than 55 gallons or one quart of AHW), the generator either ships the 90/180/270-day accumulation (adding the new start date to the label) in compliance with the general onsite management requirements.
 

Onsite Recycling and Treatment by Generators

Generally, recycling and treatment of hazardous waste requires some form of RCRA permit. First, RCRA regulates recycling that involves “use constituting disposal” (e.g., applying wastes to land), burning for energy recovery, and most reclamation of hazardous materials for (re)use. Exemptions cover reclamation of industrial ethyl alcohol, most scrap metals, specified oil-containing streams from petroleum industry operations, used oil recycling, and qualifying management of “hazardous secondary materials” by or under the control of generators. RCRA also regulates most treatment (broadly defined to include any process intended to change the physical or chemical properties of a waste). Generators can conduct certain forms of treatment without a permit, including cleaning up spills of hazardous materials or waste, and adding absorbent material to liquids when placing them in a waste container. Other treatment activities can require a treatment, storage and disposal (TSD) permit.

Generator Requirements for Hazardous Waste Transport

To avoid the need for a TSD or recycling facility permit, generators must generally ship hazardous wastes offsite within the applicable accumulation time limit identified above. When shipping hazardous wastes offsite, generators may use only licensed hazardous waste transporters and may ship only to permitted recipient facilities, which include TSD facilities or recyclers. RCRA assures uniform recordkeeping for all shipments of RCRA-regulated hazardous wastes through the use of a Uniform Hazardous Waste Manifest (EPA Form 8700-22).

The generator to provide the following information on a manifest for each shipment of hazardous waste:

  • Names, addresses, telephone numbers, and EPA ID numbers of the generator, transporter, and recipient facility.
  • Descriptions of each unit of hazardous waste in the shipment, including DOT description, EPA waste code number, type and quantity of all containers, and any additional description.
  • Any special handling instructions and additional information.
  • Signed certification by the generator of the truth of the information and, for LQGs, of the existence of a waste reduction program.

 

EPA requires at least five copies of the manifest for each shipment, all showing the generator’s signature. These are presented to the transporter, who then signs them to acknowledge receipt of the shipment. One copy is returned immediately to the generator, while the other four copies must accompany the shipment to its destination. At the destination, the transporter ensures that the receiver signs for the waste, retains one copy, and gives the other copies to the destination facility. The facility sends the "top" copy to EPA, keeps one for its own records, and returns one to the generator. Shipments are also subject to documentation that waste-specific and method-specific land disposal restrictions are met. All parties are subject to exception report requirements for mis-characterized shipments. Exports and imports of hazardous waste are subject to special requirements. Effective June 30, 2018, EPA requires electronic manifests. 

Record Keeping

RCRA requires that all generators, transporters, and permitted recycling and TSD facilities obtain an EPA ID number to allow agencies to track all activities involving the hazardous waste. Each ID number is specific to a location where hazardous waste is managed. RCRA also requires LQGs to file a biennial report of hazardous waste activities, by March 1 of each even-numbered year covering the previous year’s activities (for example, 2017 biennial reports were due by March 1, 2018). These reports provide the following information:

  • Generator EPA ID Number and site information.
  • Name and EPA ID Number of each hazardous waste transporter used.
  • Description (including waste codes and quantities) of hazardous waste shipped offsite.
  • Description of efforts to reduce the volume and toxicity of wastes generated, and of reductions achieved in the reporting year compared with past years.
  • Certification by the generator or authorized representative.

 

EPA requires generators to maintain records of most activities (including testing, inspection, training and transportation via manifest) for at least 3 years.

Release Reporting

Generators (and other hazardous waste facilities) must report spills or other releases of hazardous wastes. The report is made to the National Response Center at (800) 424-8802 (if it exceeds federal reportable quantities (RQs)) and to the state agency designated to receive such reports. Most states provide phone numbers for spill reporting. If a release results in contamination, then RCRA corrective action provisions apply unless cleanup is deferred to other environmental laws.

AIR QUALITY PROTECTION REQUIREMENTS

The federal Clean Air Act (CAA) creates a comprehensive national framework for defining, maintaining and enhancing air quality. CAA was first enacted in 1970 and Congress has amended it a number of times, including major amendments in 1977 and 1990. CAA assigns EPA nationwide authority to define air pollutants, ambient air quality standards, emission limitations for pollutants, and permit requirements for stationary sources of air emissions. States are responsible for air quality planning and most day-to-day regulation of emissions sources. These state responsibilities are reflected in state implementation plans (SIPs), which are subject to EPA review and approval. EPA can issue a federal implementation plan (FIP) to address CAA requirements where a SIP fails to do so.

Defining Air Pollutants

CAA is a complex statute, which defines categories of air pollutants and provides regulatory programs to restrict their emissions. CAA provides for emissions permits for “major” sources and some other sources, and allows for regulation of commercial products (notably paints and other coating materials) that produce emissions when used.

National Ambient Air Quality Standards Involving Conventional “Criteria” Pollutants

CAA defines a national goal of ambient air quality sufficient to protect public health, as well as aesthetic and other values. To accomplish this goal, EPA defines which pollutants create air pollution, and sets National Ambient Air Quality Standards (NAAQS). EPA has established NAAQSs for the following conventional or “criteria” pollutants that contribute to smog and harm public health:

  • Carbon monoxide (CO)
  • Lead
  • Nitrogen oxides (NOX)—also regulated as a precursor to ground-level ozone 
  • Ozone and its precursors, including volatile organic compounds (VOCs) 
  • Particulates—measured as particulates of 10 microns or less (PM-10), and also as “fines” of 2.5 microns or less (PM-2.5)
  • Sulfur oxides [measured as sulfur dioxide (SO2)].

 

In addition, in April 2007, the US Supreme Court ruled that EPA has authority to regulate carbon dioxide (CO2) in order to reduce climate change. Consideration of CO2 emissions continues to be controversial. CAA sets a goal that every region of the country should attain and maintain all NAAQSs, as demonstrated by regional monitoring networks. Attainment areas must undertake basic regulatory steps to maintain air quality. Nonattainment areas must undertake additional steps to reach NAAQSs; required additional actions vary with the degree of nonattainment.

Hazardous Air Pollutants

CAA also directs EPA to define and regulate hazardous air pollutants (HAPs), emissions of which may pose localized health hazards. EPA defines 186 HAPs, and groups similar types of sources into source categories. EPA defines National Emission Standards for Hazardous Air Pollutants (NESHAPs) for source categories. Most define a maximum achievable control technology (MACT), as the basis for regulation. MACT standards for new sources are to be no less stringent than the emissions control achieved by the best-controlled existing source, while standards for existing sources are to reflect the average emissions reduction achieved by:

  • The best-controlled 12 percent of sources if there are 30 or more sources in the category.
  • The best-controlled 5 sources if there are fewer than 30 sources in the category.

 

Since MACT standards are technology-based, CAA authorizes EPA to apply stricter emissions standards beyond MACT, if EPA determines that MACT controls do not provide an ample margin of public safety. EPA cannot promulgate these residual risk standards until 8 years after an initial MACT standard has taken effect. Note that EPA also promulgates NESHAPs for area sources (i.e., those smaller than major sources) based not on MACT but on the less stringent Generally Available Control Technology (GACT), or on management standards.

Ozone Depleting Substances

Title VI of the 1990 CAA amendments provides a national program designed to minimize human impact on the stratospheric ozone layer by phasing out the use of chlorofluorocarbons (CFCs) and other ozone depleting substances (ODSs). EPA subsequently accelerated phaseouts to meet developing US treaty commitments under the Montreal Protocol on Substances that Deplete the Ozone Layer.

CAA divides ODSs into Class I and Class II substances, and prescribes phaseout schedules for each class, and for eight groups within Class I. Class I production phaseouts are complete, although EPA allows specified “essential uses” to continue. Phaseout deadlines for Class II substances (hydrofluorocarbons) vary between 2003 and 2030, with declining annual allowances for those that remain in production, subject to cap-and-trade provisions. If the U.S. implements the 2016 Kigali Amendment to the Montreal Protocol, then these phaseouts will accelerate. EPA also encourages the development and sale of less-depleting and non-depleting substitutes, through its Significant New Alternatives Policy (SNAP) program.

Sources Responsible for Acid Rain

CAA Title IV regulates power plant emissions of SO2 and NOx, at “affected sources” with one or more“affected units.” Affected source must obtain an acid rain permit. In addition, each SO2 source receives allowances defining the tons of SO2 it is allowed to emit. If a source reduces emissions below this amount, it can sell its extra allowances to another source. New and modified sources must purchase allowances from existing sources before commencing operations.

Emission Permits for Specified Stationary Sources

Controls over stationary sources that emit air pollutants are the core of several CAA programs. These include sources of criteria pollutants and HAPs. Most programs divide sources into classes by quantity [measured in tons per year (tpy) of a pollutant or category of pollutants] and type of emissions, and impose requirements for each class. “Major” stationary sources are subject to the most extensive requirements. Major sources generally are defined as those that emit or have a potential to emit:

  • 100 tpy or more of any regulated pollutant (usually applied to criteria pollutants).
  • 10 tpy or more of any HAP or 25 tpy or more of any combination of HAPs, including emissions from area sources, and/or.
  • Specified amounts of greenhouse gases (GHGs).

 

Regulated stationary sources must use best available control technology (BACT), and can be subject to additional stricter controls under multiple programs.

Preconstruction Review and Permits

When a new or significantly modified source is proposed, that source (always for a “major” source and sometimes for a minor source) is subject to one or more preconstruction review programs. Each program requires evaluation of the proposed source’s activities, in order to identify available technologies and methods that should be incorporated into these activities in order to reduce emissions to prescribed levels. These programs are known as:

  • New source performance standard (NSPS) review.
  •  Prevention of Serious Deterioration (PSD) review, in nonattainment areas and in specified areas with especially clean air.
  • Nonattainment new source review (NSR), which requires new or modified stationary sources in nonattainment areas to employ Lowest Achievable Emission Rate (LAER) technology and may require emissions reduction credits or “offsets.”

 

Operating Permits

After construction, major sources (and some minor and area sources) require additional permits to operate. CAA Title V provides permit standards for the following types of sources:

  • Major stationary sources of “any pollutant” (criteria pollutants, HAPs, and GHGs)
  • Sources subject to acid rain provisions
  • Sources subject to the NSPS, PSD, or nonattainment NSR programs.

 

Permit conditions reflect the source’s operations—whether it is an existing or new source, regional ambient air quality (non)attainment status, and specific regulatory and procedural requirements imposed by applicable CAA programs. While details vary greatly, permits generally describe the following:

  • The source itself, including descriptions of techniques and technologies employed (this may identify separate emissions units within complex facilities).
  • Emissions limitations and standards—these may include a schedule of compliance and operational requirements and other restrictions to assure compliance with all permit conditions.
    • Standards include the following:
      • For criteria pollutants: reasonably available control technology (RACT), BACT and best available retrofit control technology (BARCT), and LAER
      • For HAPs: MACT and GACT
  • NSPSs. Permit conditions can require new sources in one of the more than 70 industry categories for which EPA has promulgated NSPSs to meet these standards.
  • Limited permit duration. Permits are issued for no more than 5 years (12 years for acid rain program permits).
  • Monitoring and related record-keeping requirements. Permits typically specify monitoring frequency (periodic or continuous emissions monitoring) and methods. Specified sources using emission control devices must monitor their actual emissions, while other sources may be subject to operational monitoring to validate that their control devices operate effectively.
  • Report releases that exceed permit limits (e.g., equipment failure).
  • Inspection provisions.

 

Most permits are crafted specifically for the source, although EPA and state air quality agencies also develop general permits with standardized conditions for similar sources within source categories. Compliance with a valid permit can convey a permit shield for the source against claims that it is violating a relevant CAA provision.

Other requirements and limitations

Sources must also comply with other applicable EPA/state rules and requirements. Title V permits may incorporate such requirements as additional permit conditions, but even non-permitted minor and area sources are responsible for compliance. Examples include the following:

Compliance With Air Quality Rules

A variety of rules cover use of materials that may produce air emissions, including:

  • Paints and coatings, subject to limits on volatile organic compounds (VOCs).
  • Coolants for air conditioners and other equipment, to restrict ozone depleting substances

 

Mobile Source Controls

CAA also provides authority under which EPA regulates mobile sources to limit emissions. These include equipment-based standards for categories of on-road and off-road sources. EPA coordinates with the National Highway Traffic Safety Administration (NHTSA), which issues corporate average fuel economy (CAFÉ) standards applicable to automobile makers’ total range of products. Separate regulations cover fuels.

Accidental Release Prevention

EPA’s Accidental Release Prevention (ARP) program requires onsite planning, engineering and training requirements to prevent accidental releases of air contaminants that might produce disastrous offsite consequences. EPA lists 77 toxic substances and 63 flammable substances. The ARP program applies to each stationary source where any regulated substance is present above threshold quantities. A single facility may have multiple stationary sources, each defined by a process or set of equipment using a regulated substance from which an accidental release may occur. EPA’s regulations further subdivide regulated stationary sources into the following three risk-based groups (called “programs” in the regulations):

Program 1—source meets all the following conditions:

  • No release of a regulated substance within the past five years led to death, serious injury, or response or restoration for any environmental receptor.
  • Offsite consequence analysis (OCA) calculates that a worst-case release would not expose "receptors" to exposure endpoints (set by EPA as the highest acceptable exposures of public or environmental receptors to toxic substances, heat, or overpressure).
  • Source has coordinated emergency response procedures with local emergency response and planning organizations.

 

Program 2—source is not in Program 1 or 3.

Program 3—source does not qualify for Program 1 and the process is either: Subject to the Occupational Safety and Health Administration’s (OSHA’s) Chemical Process SafetyManagement (PSM) Standard (discussed in Volume I of these eBooks); or In North American Industry Classifications System (NAICS) code 32211 (pulp mills); 32411 (petroleum refineries); 32511 petrochemical manufacturing); 325181 (alkalies and chlorine); 325188 (all other inorganic chemical manufacturing); 325192 (other cyclic crude and intermediate manufacturing); 325199 (all other basic organic chemical manufacturing); 325211 (plastics and resins); 325311 (nitrogen fertilizer); and 32532 (pesticide and other agricultural chemicals).

Stationary sources are subject to a General Duty Clause requiring them to identify hazards from potential releases of regulated substances, design and maintain safe facilities, and minimize the consequences of releases that do occur. Sources are also subject to additional more specific requirements:

  • Registration, with source information (ownership, location, etc.).
  • An OCA, modeling exposure to offsite public or environmental receptors of a “worst-case release scenario” (complete release of largest container). Program 2 and 3 facilities must also analyze “alternative release scenarios” that could exceed an exposure endpoint.
  • A five-year accident history, including description of post-accident changes to operations and processes.
  • A prevention program (for sources in Programs 2 and 3), based on a detailed hazard review that includes written operating procedures, maintenance and internal compliance procedures, post-incident investigation procedures, and training for all relevant employees.
  • An emergency response program including procedures for notification and response, and training for relevant employees.
  • Certification of the truth and accuracy of submitted information (and for Program 1 sources, of claimed exemption from prevention program requirements).

 

Summaries are compiled in a risk management plan (RMP). Each stationary source owner and operator must update each RMP at least every five years; within three years after listing of a new substance for which the source’s handling exceeds the ARP threshold; and within six months after a change affecting any hazard assessment or OCA.

Reporting Greenhouse Gas Emissions

EPA issued rules requiring 31 emitting sectors (fossil fuel electricity generation, petroleum refining, etc.) plus “general stationary fuel combustion sources” in other sectors, to provide annual GHG emission reports, beginning in 2011 based on reporting year 2010. EPA later added requirements covering 12 additional sectors, beginning in reporting year 2011. EPA provides detailed reporting requirements, including data collection and management requirements.

WATER QUALITY PROTECTION REQUIREMENTS

The Clean Water Act (CWA) is the principal federal surface water quality protection law. CWA employs a variety of regulatory and non-regulatory tools to control direct pollutant discharges into waterways, and to manage polluted runoff. CWA implementation focuses on regulating discharges from traditional “point source” facilities, such as municipal sewage plants and industrial facilities. However, it also addresses polluted runoff from storm water and some “non-point sources” of water pollution. CWA’s central regulatory requirement, is the National Pollutant Discharge Elimination System (NPDES) permit, which regulates routine point source discharges. The US Environmental Protection Agency (EPA) has nationwide authority to implement CWA, including oversight of state activities. States must conduct monitoring and planning activities, and can apply for delegation of permit authority (most have done so).

Defining Water Quality and Pollutants

EPA and states set water quality standards, and monitor actual water quality to compare it with these standards. The agencies also define water pollutants, and ambient concentrations that interfere with beneficial uses. Water pollutants are grouped into the following four categories:

  • Conventional pollutants—biochemical oxygen demand (BOD), total suspended solids (TSS), pH, fecal coliform, and oil and grease
  • Nonconventional pollutants (including ammonia, chlorine, color, iron, and total phenols)
  • Thermal discharges
  • Toxic pollutants (including 65 classes and compounds of toxic pollutants, of which 126 are “priority pollutants”).

 

The NPDES program requires the owner/operator of a facility to obtain a permit before discharging any pollutant into "waters of the US" from any point source (EPA and the Army Corps of Engineers are revisiting this definition). CWA defines “point source” very generally to cover discharge points where controls might be applied, as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture. ”Non-point source” is not defined in statute but EPA and courts consider it by contrast to “point source,” as runoff from storms and/or activities that do not pass through a readily-controlled “point.” CWA program requirements are based on distinctions between these two broad categories.

Limiting Routine Discharges

EPA and the states regulate the discharge of pollutants into surface waters. These activities involve general as well as location-specific elements. First, EPA establishes technology-based effluent limitations (TBELs) for broad categories of industrial dischargers. These are commonly referred to as “effluent limitations” that may then be codified in regulations that impose “effluent limitation guidelines”, or in “categorical standards." These limitations impose the “minimum level of control that must be imposed in a permit” and are based on the pollution control technologies in the regulated industry, corresponding to the pollutant(s) that will be discharged. The regulations describe these technologies in jargon—“Best Available Technology (BAT),” “Best Conventional Pollutant Control Technology (BCT),” “Best Practicable Control Technology Currently Available (BPT),” and “Best Professional Judgment (BPJ).” CWA requires EPA to review individual effluent limitations every five years.

Second, a permitting agency (EPA or state) can also require a discharger to comply with stricter limitations in order to prevent water quality of the receiving water from falling below the established water quality level, or to assist in efforts to restore water quality in a more polluted waterway. 

NPDES Permits for Direct Discharges

No person (including industrial facilities, municipalities, and publicly owned treatment works (POTWs)) may discharge effluent to surface waters without a NPDES permit. Discharges to groundwater do not require an NPDES permit, but may require a state permit (the U.S. Supreme Court will review this distinction during 2019). Applicants must file a NPDES permit application with EPA or the state water quality agency at least 180 days before beginning to discharge. NPDES applications are subject to a public notification and hearing process. NPDES permits detail the following information:

  • Specific pollutants contained in a facility’s effluent stream
  • Amount or concentration of pollutants that can be discharged into a receiving water (i.e., effluent limitations)
  • Effluent flow rates
  • Testing and monitoring requirements
  • Methods for compliance with applicable water quality standards.
  • Record keeping and reporting requirements. 

NPDES permits are issued for 5 years.

Sewer Agency Requirements for Indirect Discharges

Direct discharges from sewer agency POTWs are subject to NPDES permit requirements. Permits may specify treatment techniques (“best practicable waste treatment technology”), process and procedure innovations, operating methods, and other alternatives. In addition, EPA regulations require many POTWs to establish pretreatment programs restricting discharges by the “indirect dischargers” – businesses and residences – that discharge into the sewer system. POTWs that discharge more than 5 million gallons per day must impose pretreatment standards; others may do so to protect the POTW and/or receiving waters or to ease handling of post-treatment sewage sludge. These programs serve the following four objectives:

  • Prevent introduction into POTWs of pollutants that would interfere with equipment or operations, or endanger personnel.
  • Prevent introduction of pollutants that would “pass through” (.e., would not be treated adequately before discharge) or be incompatible with the POTW.
  • Prevent introduction of pollutants that would prevent the POTW from complying with its NPDES permit.
  • Improve opportunities to recycle and reclaim municipal and industrial wastes and post-treatment sludges.

 

National pretreatment standards developed by EPA take two forms: general prohibitions on discharges into POTWs by indirect dischargers (i.e., those that would pass through or harm the system), and categorical standards comparable to those imposed on direct dischargers. The end result of this process is that facilities that discharge to sewers instead of to waterways meet comparable restrictions on their discharges, but these are reflected in sewer agency permits or ordinance requirements rather than in NPDES permits.

Limiting Storm Water Runoff

CWA requires EPA to create a comprehensive program to regulate “storm water discharges” (runoff and drainage from rainfall and snowmelt) that carry pollutants such as oil, industrial contaminants, and sediment into storm water drains that discharge into the nation’s surface waters. EPA’s regulations presently cover discharges that meet any of the following criteria:

  • Already permitted before EPA issued its storm water regulations effective February 7, 1987
  • Associated with industrial activity
  • Associated with construction activity of one acre or more
  • From a municipal separate storm sewer system (MS4)
  • Violate state water quality standards.

 

EPA issues general permits that establish conditions that qualifying facilities may meet after providing EPA or their state or local storm water agency a notice of intent (NOI) to do so. However, where a storm water discharge would adversely impact water quality, the agency instead may require an individual permit for storm water management.

Industrial Activities

 Industrial activities include the following:

  • Facilities subject to NSPSs or toxic pollutant water quality standards
  •  Manufacturing, transportation, mining, and oil and gas facilities
  • Hazardous waste TSD facilities (see above)
  • Landfills, land application sites, and open dumps that receive or have received industrial wastes
  • Recycling and steam electric generating facilities
  • Sewage treatment plants with design flow of one million gallons per day or more, and/or an industrial pretreatment program.

 

EPA issues a Multi-Sector General Permit (MSGP) that provides requirements to most discharges from most industrial activities around the country; although certain states and certain types of discharges are excluded. EPA’s “2015 MSGP” is the latest version.

To be covered under a general permit, applicants must submit an NOI with the following information:

  • Name and address of the facility owner and operator
  • Facility name and address
  • A description of the type of facility or construction activity and associated discharges
  • Identification of the receiving water(s) of all storm water discharges
  • Information about its Storm Water Pollution Prevention Plan (SWPPP).

 

Alternatively, individual permits require comprehensive information, including the following:

  • Site map
  • Estimate of impervious areas
  • Identification of significant materials treated or stored onsite together with associated materials management and disposal practices
  • Location and description of existing structural and non-structural controls to reduce pollutants in storm water runoff
  • Certification that all storm water outfalls have been evaluated for any unpermitted non-storm water discharges
  • Information regarding significant leaks or spills of toxic or hazardous pollutants within the three years prior to the permit application
  • Sampling reports of the facility’s storm water taken during “storm events”

 

Construction Activities

EPA also issues a Construction General Permit (CGP) that provides storm water management requirements for construction sites. EPA’s “2017 CGP” is the latest version. Qualifying construction facilities can file an NOI and seek coverage under the CGP, or file an individual permit. Requirements are similar to those for industrial facilities, but also cover clearing, grading, and excavation activities. (Construction projects may also require Dredge and Fill Permits issued by the U.S. Army Corps of Engineers).

Regulation of Discharges from MS4s

EPA also requires MS4s to obtain storm water permits. Minimum control measures include public education and participation, elimination of illicit discharges, construction site storm water runoff control, postconstruction site storm water management, and pollution prevention for municipal operations. Some MS4s provide additional compliance requirements for facilities within their jurisdiction.

Spill Prevention

CWA provides for several spill prevention and response programs. The most broadly applicable is the requirement that onshore and offshore oil storage facilities prepare Spill Prevention Control and Countermeasure (SPCC) Plans if:

  • For aboveground storage: Total aboveground storage is over 1,320 gallons and the facility has a potential to discharge a harmful quantity of petroleum products into “ navigable waters” of the US.
  • For underground storage: total capacity exceeds 42,000 gallons (excluding capacity of tanks and piping regulated by the UST program described above).

 

SPCC plans document at least the following measures to prevent unauthorized releases of petroleum products:

  • Facility description
  • If there is a “reasonable potential for equipment failure,” a prediction of the direction, flow rate and quantity of oil discharged by each type of failure
  • Contact list and phone numbers for the facility response coordinator, National Response Center, cleanup contractors, and all appropriate agencies
  • Appropriate containment and/or diversionary structures or equipment to prevent discharges
  • Contingency plans covering discharge discovery, response, and cleanup
  • Written procedures for inspection and testing, and provisions for signatures by appropriate inspectors or supervisors, and record keeping for at least 3 years
  • Designation of a person at each facility who is accountable for discharge prevention and who reports to facility management
  • Training for oil-handling personnel in spill prevention and response
  • Security measures
  • Additional measures addressing any loading/ unloading racks; field-constructed aboveground containers; and oil-filled operational equipment
  • Discussion of any additional discharge prevention and containment procedures, and facility compliance with any other applicable requirements.

 

SPCC plans must be reviewed and updated at least every 5 years, or whenever there is a significant change or release. Analogous requirements apply to some categories of onshore and offshore facilities. 

Conclusion

We intend these ebooks to remind our readers of the range of EH&S requirements, including some key terms, issues and deadlines. If you're involved in activities subject to these sorts of requirements -- whether your responsibilities apply in a single chemical-using work area, a facility, or a larger organization -- your activities will be subject to specific and detailed requirements under most or all of these regulatory topics, which you will need to research and meet...preferably before an agency inspector reveals them to you.

In the same spirit, we are working on a simplified template for a compliance calender, that readers will be able to populate with deadlines relevant to their own responsibilities. Depending where you are and what you do, you should consider tools that will help you with agency-imposed external deadlines to renew permits, pay fees, and submit required documents; internal deadlines for self-inspections, trainings, and interactions with your finance, accounts payable, and accounts receivable shops; and milestone steps necessary to prepare for and reach those formal deadlines. 

STP SELF-ASSESSMENT CHECKLISTS

 

AUTHOR BIO

The professional experience of Jon F. Elliott, BSE, MPP, JD, includes:

  • Practicing attorney in California.
  • Compliance consultant and legal advisor (since 1985), specializing in projects that address multiple legal frameworks simultaneously.

 

Jon Elliott has made a major contribution to the Specialty Technical Publishers (STP) product range for over 30 years. Examples include:

 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Berkeley Boalt Hall School of Law–1981), he holds a Master of Public Policy (Goldman School of Public Policy, UC Berkeley–1980) and a Bachelor of Science in Mechanical Engineering (Princeton University–1977).

Lorraine O’Donovan is a Marketing Specialist for Specialty Technical Publishers.

[Editors' Note: Republished with permission. Copyright © 2019 Specialty Technical Publishers. All Rights Reserved. This publication does not constitute legal, accounting or other professional advice. STP Specialty Technical Publishers and its authors make no warranties, whether express or implied, regarding the accuracy of any information or materials contained herein or the results of any course of action described herein, and STP and its authors expressly and specifically disclaim the implied warranties of merchantability and fitness for a particular purpose.]

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MATERIALS DISCLAIMER  

This material provided by the Intelex Community and EHSQ Alliance is for informational purposes only. The material may include notification of regulatory activity, regulatory explanation and interpretation, policies and procedures, and best practices and guidelines that are intended to educate and inform you with regard to EHSQ topics of general interest. Opinions are those of the authors, and do not necessarily reflect the opinion of Intelex. The material is intended solely as guidance and you are responsible for any determination of whether the material meets your needs. Furthermore, you are responsible for complying with all relevant and applicable regulations. We are not responsible for any damage or loss, direct or indirect, arising out of or resulting from your selection or use of the materials.   

 


March 08, 2019 @ 09:10 AM EST Manufacturing Environment, Health & Safety

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