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Hazardous Waste Determinations
(by Joe Nixon)
(Posted in August 2015 issue of BIC Magazine)

A common Resource Conservation and Recovery Act (RCRA) mistake is failure to make hazardous waste determinations for all solid wastes generated at a plant, facility or other location. Hazardous waste determinations are required by the regulations in 40 CFR 262.11. The determinations must be well documented including whether the waste stream is (1) excluded from regulation and why, (2) is a listed hazardous waste identified in Subpart D of 40 CFR Part 261, (3) is a characteristic hazardous waste meeting the criteria in Subpart C of 40 CFR Part 261 or (4) is a non-hazardous industrial, commercial or institutional waste.

For solid wastes that are excluded from regulation, the hazardous waste determination should be documented and describe all information relevant to the basis for the exclusion. This information should include a description of the generation process, hazardous secondary material category and the applicable management or recycling activity that qualifies the solid waste for the exclusion.

For listed hazardous wastes, the documented hazardous waste determination should describe why the solid waste meets the criteria for a waste listed in 40 CFR Part 261 Subpart D. Since none of the hazardous waste listings are concentration based, this determination must be made using the generator’s knowledge of the waste, instead of analytical data. For example, API separator sludge from the petroleum refining industry is listed as K051, because the EPA has already determined this particular industrial waste is hazardous. A similar sludge from another industry would not meet the K051 listing, regardless of the hazardous constituent concentrations in the sludge. Thus, the solid waste must fit within the listing description before it can be classified as a particular hazardous waste.

For characteristic hazardous wastes, the documented hazardous waste determination should describe why the solid waste meets the characteristic criteria in 40 CFR Part 261 Subpart C. This determination can be made by testing the waste using the analytical methods specified in Subpart C, or by applying knowledge of the hazardous characteristics of the waste in light of the materials or the process used. If knowledge is used to make a hazardous waste determination, the knowledge must have the same level of confidence as analytical data (mini- mum 95 percent).

Another RCRA mistake is failure to make hazardous waste determinations correctly. The reasons for this mistake often include a lack of procedures, reliance on third parties, lack of training and experience, reliance on outdated or non-applicable waste determinations and failure to make the hazardous waste determination at the point of generation.

Improper hazardous waste determinations could also be the result of using extraneous waste codes, using analytical data to identify listed hazardous wastes and an improper application of characteristic codes. For example, a waste containing benzene at 100,000 ppm could be F005 or D018, but typically not both. The F005 waste code would only apply to spent sol- vent that meets the listing criteria. Since the F005 waste code already includes benzene, the D001 code is only needed if the spent solvent is not the source of the benzene. For
example, if a commercial grade of toluene is used to clean or flush piping containing benzene, the D001 waste code would be required if the spent toluene contained 0.5 mg/L or more of benzene.

Examples of improper application of characteristic codes often involve the D001 code for ignitable wastes and the D002 code for corrosive wastes. No waste should be characterized as a D001 ignitable solid due to flashpoint as the D001 code due to flashpoint applies only to liquids at standard temperature and pressure. Likewise, no waste should be characterized as a D002 corrosive solid due to pH or the ability to corrode steel. A D002 corrosive characteristic due to pH applies only to aqueous wastes, and the steel corrosion criteria only applies to non-aqueous liquids.

The key to avoiding these RCRA mistakes is training, documented procedures, experience, team work between operations and environmental staff, and management support.

H1 Section Heading Text

Electronic Manifest (e-Manifest) Authorization
(by Joe Nixon)

Early last year, the Environmental Protection Agency (EPA) published a final rule authorizing the use of the national electronic manifest (e-manifest) system, and put the e-manifest one step closer to becoming a reality for the hazardous waste management industry (February 7, 2014; 79 FR 7518). The rule announced the legal framework for the use of the e-manifest and codified key provisions of the e-Manifest Act. Under the rule, hazardous waste handlers will have the option of using e-manifests as the preferred means to track off-site shipments of hazardous waste from a generator’s site to the designated facility. However, generators will be allowed to use e-manifests for hazardous waste shipments only if it is known at the time the manifest is originated that all waste handlers named on the manifest participate in the e-manifest system. Hazardous waste handlers who participate in the e-manifest system will still be required to carry a printed copy of the e-manifest on the transport vehicle, because the Department of Transportation (DOT) has not amended the Hazardous Materials Regulations (HMR) to authorize the use of electronic shipping papers.

Hazardous waste generators, transporters, and owners or operators of designated facilities who are users of e-manifests will be assessed user fees by EPA for the origination or processing of each e-manifest. The amount of the user fees will be determined based on the current and projected system costs and level of use of the e-manifest system. For those who choose to use paper manifests, the designated facility will be required to pay additional fees to the e-manifest system for processing the data from the paper manifests. The designated facilities will likely pass these fees on to the hazardous waste generators who originate the shipments. Consequently, the additional fees for paper manifest data processing will serve as a disincentive for hazardous waste handlers to continue using paper manifests.

A new requirement contained in the e-manifest rule includes the requirement for designated facilities to transmit manifests to the national e-manifest system. Designated facilities will have to transmit both e-manifests and paper manifests for entry in the national e-manifest system. Paper manifests will need to be submitted by mailing the top copy of the paper manifest, or by transmitting an electronic image file and/or a data string file corresponding to page 1 of the paper manifest. The e-manifests will be submitted in an internet form format that EPA is working to develop in the Extensible Mark-up Language (XML). By retaining e-manifests in the handler’s account on the national e-manifest system, the manifest retention requirement will be satisfied.

All e-manifests will be required to contain electronic signatures from the generator, transporter, and owner or operator of the designated facility. These hazardous waste handler signatures will be legally valid and enforceable under applicable EPA and other Federal requirements pertaining to electronic signatures. Options for electronic signature methods under the rule will include digitized handwritten signatures and PIN/password signatures.

Hazardous waste handlers should be aware that, under the e-manifest rule, individual hazardous waste manifests are treated as public information. EPA concluded in the rule that individual manifests submitted and collected electronically through the e-manifest system are not eligible under federal law for treatment as confidential business information (CBI). Therefore, EPA stated that it would not accept any CBI claims that might be asserted in connection with processing, using, or retaining individual paper or electronic manifests.

EPA indicated that when the e-manifest system is fully implemented, it will result in an estimated cost savings of more than $75 million per year for States and industry, and it will reduce the annual paperwork burden by an estimated 300,000 to 700,000 hours. EPA’s schedule for the e-manifest system estimates that it will be fully online by spring 2018. Prior to that time, EPA will be working to develop the e-manifest architecture and fee schedule.

Continuous Monitoring Systems

By Marshall Bayless
(posted on LinkedIn)

Continuous Monitoring Systems (CMS) are devices required by most regulatory programs to monitor, record, and document a facility’s operation. A CMS is a general term that includes Continuous Emission Monitoring Systems (CEMS), Continuous Opacity Monitoring Systems (COMS), Continuous Parameter Monitoring Systems (CPMS), Continuous Parametric Monitoring Systems (CPMS), Continuous Emission Rate Monitoring Systems (CERMS), or other manual or automatic monitoring systems. Some of the fundamental compliance requirements for CMS devices include design and installation, calibration, and recordkeeping.

The design and installation of CMS devices are an important factor in obtaining representative samples and creating easy access for calibration and maintenance purposes. Sampling locations should be determined based on regulatory requirements, and where a representative sample of the process parameter or the emissions from the source is being monitored. Additional factors for locating CMS sample interfaces include sample conditioning requirements, ability to collect a representative sample of the total emissions, in-leakage concerns, and sever flow disturbances such as cyclonic flow. Other design criteria to be considered include monitoring system span values and recording scales. The span values are determined by the operation of the unit and its regulatory requirements. While the recording scale is not typically an issue with electronic devices, the readings should be within the range of the instrument and have a resolution within 0.5 percent of the span value.

The calibration of a CMS device is a regulatory and manufacturer’s requirement to ensure accuracy of the device being used. The accuracy of a device is the comparison of a true or known value to a measured or actual value. Different CMS devices require different calibrations and calibration periods to ensure their accuracy. Some of the calibration periods or types may include daily calibrations, quarterly accuracy testing, interference response tests, relative accuracy test audits, calibration error, drift tests, and calibration checks. The Code of Federal Regulations has set forth the type and requirements for calibration and accuracy check of the CMS device based on the unit being evaluated. However, the manufacturer may require a more stringent calibration and accuracy check of the CMS device.

The recordkeeping requirements for each end user are defined by the regulatory Agency based upon the type of permit or permit level. One of the recordkeeping requirements includes operating data with all required measurements, malfunctions, inoperative periods, maintenance performed, and out-of-control events. Another aspect of the recordkeeping requirement is the retention and location of the records. In general, the regulation or permit will define the retention period and expected location of the records. This recordkeeping aspect is important, because it allows an auditor to review the process history of the unit in determining potential deficiencies. As a part of the recordkeeping process, a Quality Assurance/Quality Control (QA/QC) program is typically required for CMS devices. The QA/QC program must be a written program that defines, at a minimum, the design and installation, calibration, and recordkeeping requirements for the CMS device. The written QA/QC program must be available for review by an auditor or the Agency. The QA/QC program must be revised if a CMS device is modified or replaced, or if there are excessive inaccuracies caused by the procedures in the program.

In short, a CMS device is a part of a facility’s operation or process that is regulated by Agency rules and regulations. The CMS requirements include, at a minimum, design and installation, calibration, and recordkeeping requirements. In addition, the end user must comply with any permit requirements and, if more than one set of regulations apply, the most conservative requirements if not otherwise defined within the permit.

Empty Containers

By Elizabeth Drake
(posted on LinkedIn)

Residues remaining in an empty container are not regulated as hazardous waste if the container meets the empty criteria in 40 CFR 261.7. The empty container criteria are specified for containers that have held non-acute hazardous wastes, compressed gases that are hazardous wastes, and acute hazardous waste. Please note that even if empty, some States such as Texas, continue to regulate the management of certain empty containers as industrial solid waste, and require shipments of certain empty containers to be accompanied by a Uniform Hazardous Waste Manifest.

For residues in an empty container to be excluded from regulation as hazardous waste, the container must meet the following empty criteria:

• A container that held non-acute hazardous waste that is not a compressed gas:
• All waste have been removed that can be removed using the practices commonly employed to remove materials from that type of container (e.g., pouring, pumping, and aspirating)
• No more than 2.5 centimeters (one inch) of residue remain on the bottom of the container or inner liner, or
• No more than 3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is less than or equal to 119 gallons in size, or
• No more than 0.3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is greater than 119 gallons in size.
• A container that held a hazardous waste that is a compressed gas is empty when the pressure in the container approached atmospheric.
• A container or inner liner that has held an acute hazardous waste listed in 40 CFR 261.31, 261.32, or 261.33(e);
• The container or inner liner has been triple rinse using a solvent capable of removing the acute hazardous waste;
• The container or inner liner has been cleaned by another method that has been shown in the scientific literature, or by tests conduct by the generator, to achieve equivalent removal; or
• In the case of a container, the inner liner that prevented contact of the acute hazardous waste with the container has been removed.


Common RCRA Container Violations

By Elizabeth Drake

(posted on LinkedIn)

A source of common RCRA violations at facilities is hazardous waste containers. The RCRA container management violations can be grouped into poor container management, container storage areas, accumulation start date, and satellite accumulation areas.

Evidence of poor container management are containers that have severe rusting, denting, bulging, and structural defects, containers that are leaking, and open containers. Examples of open containers include funnels without gaskets that are open, unsecured bungs or rings, uncovered roll-off boxes, ripped super sacks, open boxes, open hatches on tanker trucks, and open buckets or pails. Container storage area violations include (1) missing or incomplete inspection records, (2) unlabeled containers, (3) failure to inspect weekly when no waste is present, and (4) failure to ensure separation of incompatible wastes.

There are three common accumulation start date violations, (1) accumulation start date not marked on the label with the month, day, and year, (2) changing the date after adding additional waste, and (3) accumulating hazardous waste for more than 90 days. Containers in satellite accumulation areas (SAAs) should be distinguishable by (1) signage, (2) boundaries marked by paint, tape, curbing, etc., (3) distance separation from other SAAs, and (4) proximity to a specific point of generation under the control of the operator.
The common satellite accumulation area mistakes include (1) marking the accumulation start date on the label before the container is full, (2) exceeding the 55-gallon limit, (3) transferring waste between SAAs, (4) open containers, (5) unmarked containers, (6) multiple 55-gallon drums not distinguishable as separate SAAs, (7) SAAs not located at or near the point of generation, (8) staging full SAAs in other areas before movement to a centralized storage location, and (9) designating a 90-day/180-day accumulation area as a SAA.
The key to avoiding these RCRA container mistakes is training, documented procedures, learning from experience, team work between operations and environmental staff, and management support.


RCRA Status of Temporary Frac Tanks and Poly Tanks

By Elizabeth Drake

(posted on LinkedIn)

Is your facility a RCRA large quantity generator (LQG) or a permitted facility that manages hazardous waste in temporary tanks such as rented or leased frac tanks or poly tanks? If your answer is yes, you should carefully evaluate whether this practice is in compliance with the hazardous waste tank standards in Subpart J to 40 CFR Part 264 or Part 265, or the equivalent State standards. Unless a tank meets the criteria for one of the exclusions in 40 CFR 264.1/265.1, the Subpart J standards are applicable to all LQG or permitted facility tanks that are used to store or treat hazardous waste, regardless of the duration of the storage or treatment activity. Temporary tanks that are not excluded are subject to all of the Subpart J standards including secondary containment and certification by a Qualified Professional Engineer. Many rented or leased frac tanks or poly tanks do not meet the Subpart J standards.
Tanks located at a LQG or permitted facility are excluded from the Subpart J hazardous waste tank standards if they meet one or more of the following exclusions:
• Used to manage recyclable hazardous secondary material that is excluded from being solid waste or hazardous waste;
• Part of a totally enclosed treatment facility;
• An elementary neutralization unit;
• A wastewater treatment unit; or,
• Used in treatment or containment activities during an immediate response to a discharge or threat of a discharge of hazardous waste.

The term Tank is defined in 40 CFR 260.10 to mean “a stationary device, designed to contain an accumulation of hazardous waste which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural support.” A frac tank that is managing hazardous waste would meet this definition. However, it is a common industry practice to refer to a frac tank as a container, because most frac tanks have wheels that facilitate the transportation of the empty frac tank to its place of use. To the contrary, the EPA has confirmed that a mobile hazardous waste tank (e.g., a tank with wheels) is regulated as a Subpart J tank rather than as a container, provided the tank is intended to be stationary during operation (see 52 Fed. Reg. 20919; June 3, 1987). Frac tanks are generally always stationary when they are being used to manage hazardous waste. By contrast, bulk containers (e.g., tanker trucks) are generally portable when managing hazardous waste.

Even in the case of a temporary frac tank used during an immediate response to a discharge or a threat of a discharge of hazardous waste requires consideration of when the immediate response has ceased. Any storage beyond the immediate response period would require compliance with the Subpart J standards. EPA’s long standing position has been that individual incidents will dictate what “immediate response” will entail on a case-by-case basis (see 48 Fed. Reg. 2509; January 19, 1983). However, in the preamble to the interim final rule published on November 19, 1980, the EPA provided four detailed examples that clearly illustrate when the immediate response period has ended. For more information see 45 Fed. Reg. 76629.