If you have an immediate question about an environmental compliance issue, or would like us to address a specific environmental compliance issue, contact Matthew Schroeder, P.E. at 248-932-0228, ext. 117.
Environmental Compliance Tips 2020
October: Preparedness and Prevention Requirements under RCRA
Do RCRA preparedness and prevention requirements apply to Small Quantity Generators?
Yes. Preparedness and prevention requirements (in the event of an emergency) under the Resource Conservation and Recover Act (RCRA) apply to both Small Quantity Generators (§262.16(b)(8)-(9)) and Large Quantity Generators of hazardous waste (Part 262 subpart M (§262.17(a)(6))). This requirement also applies to satellite accumulation areas. However, these requirements do not apply to Very Small Generators of Hazardous Waste, previously referred to as Conditionally Exempt Generators of Hazardous Waste.
September: Changes to Ignitability Characteristic in RCRA
In the most recent revisions to RCRA, did the USEPA change how Wastes are Tested for Ignitability (D001)?
Yes, but the final rule changes were relatively minor and did not include all of the proposed changes (EPA Explanation). The final rule should not impact generators of hazardous waste. States authorized to administer RCRA will have to adopt the changes before they take effect. For a more in depth look at the proposed v final changes see this article in National Law Review.
August: Stormwater Permit for Construction Activity
Who needs a stormwater discharge permit for construction activity?
In general, the National Pollutant Discharge Elimination System (NPDES) stormwater program requires permits for discharges from construction activities that disturb one or more acres, and discharges from smaller sites that are part of a larger common plan of development or sale. Note that state and local regulations may require permits for smaller projects. For information on potential costs for penalties, see EPA Substantially Raises the Cost of Non-Compliance
July: Hazardous Waste Management Unit Liability
Who is responsible/liable for a Hazardous Waste Management Unit on a leased property, the owner or the operator?
Both. According to the EPA, “A permit for a hazardous waste management unit located on leased property must be signed both by owner of property and operator of the unit. Because both the owner and the operator of facility must sign the permit application (40 CFR 270.10(b)), the two parties are jointly and severally liable for all RCRA requirements, including closure.”
June: SPCC Applicability
We have the capacity to store more than 10,000 gallons of oil. But how do I determine if my facility could discharge regulated oil to navigable waters or adjoining shorelines?
You need to consider several factors including geography and the location of your facility relative to nearby navigable waters (these include streams, creeks and other waterways). If you had a spill, could nearby ditches, gullies, storm sewers or other drainage systems transport an oil spill to nearby streams? Your assessment should take into consideration how rainfall may carry a spill to navigable waters.
Lastly, a recent Supreme Court ruling suggests that, under some conditions, groundwater transport to surface water must be considered in this evaluation (see Clean Water Act: Significant Developments).
May: Changes to the TRI List
How can I find out about any changes to the Toxic Release Inventory (TRI) Program?
The EPA maintains a document that details all changes to the TRI list of toxic chemicals. This list includes all revisions since the beginning of the TRI program and is current as of February 24, 2020.
April: Air Quality Permit
We are installing new equipment at our facility in Michigan; do I need an air quality permit?
You may need a Permit-to-Install (PTI) if the new equipment could be a potential source of air pollution. Your best first step is to see if the equipment is exempt from the air permitting requirements, and if so, what record-keeping is needed to document the exemption. Michigan’s Department of Environment, Great Lakes and Energy has an Exemption Handbook (updated in February 2020). If you need help in determining if you need a PTI or require assistance in obtaining a permit, contact Brooke Sullivan at 248-932-0228 Ext. 131.
March: Reporting PFAS on TRI Report
Do I need to report PFAS in my TRI Report (section 313 of EPCRA)?
Yes, if the PFAS used at your facility are among the 160 per- and polyfluoroalkyl substances listed.
This new reporting requirement is part of the National Defense Authorization Act 2020. PFAS additions to the TRI reporting list are effective as of January 1, 2020. Reporting forms for these chemicals are due to EPA by July 1, 2021, for calendar year 2020 data. For details see “Addition of Certain PFAS to the TRI by the National Defense Authorization Act.”
February: Aerosol Cans
As of February 7, 2020, an alternative method for disposal of spent aerosol cans is available.
On February 7, 2020, hazardous waste aerosol cans officially enter the national universal waste program (40 CFR Part 273). It is important that you follow the specific requirements for managing your aerosol cans as a universal waste.
Provided they are managed appropriately by the universal waste TSD (treatment, storage, and disposal) facility, (empty) aerosol cans may be accumulated.
In the case of aerosol cans being recycled, rather than disposed, the cans that have been punctured and drained prior to recycling are considered exempt scrap metal under 40 CFR 261.6(a)(3)(ii), and therefore all such punctured cans would be exempt from hazardous waste requirements when recycled.
Lastly, states that have delegated hazardous waste programs will need to adopt this revision before you can take advantage of this option for your aerosol cans.
January: Tier II Reporting
How do I know if I need to submit a Tier II Report on March 1, 2020?
You are required to submit a Tier II report if your facility used or stored:
- A hazardous chemical that is a listed Extremely Hazardous Substance or EHS (40 CFR 355 Appendix A) and it is present at the facility at any one time equal to or greater than 500 pounds or the threshold planning quantity, whichever is less; or
- A hazardous chemical that is not an EHS and is present at the facility at any one time equal to or greater than 10,000 lb.
See the USEPA’s “List of Lists” for chemicals and threshold reporting requirements.
Hazardous chemicals are defined as substances for which a facility must maintain Safety Data Sheets (formerly Material Safety Data Sheets) under the OSHA Hazard Communication Standard.
Environmental Compliance Tips 2019
December: Universal Wastes
What are universal wastes?
Universal wastes (universal because they can be generated at just about all companies) include batteries, pesticides, mercury-containing equipment, and lamps (see 40 CFR Part 273). Universal wastes can vary from state-to-state. For example, some states include aerosol cans, antifreeze, electronics, pharmaceuticals, and more. Make sure you understand your requirements for handling, storage, and disposal of universal wastes.
November: Third Party Reporting of Violations
How are suspected environmental violations brought to the attention of state or federal regulators?
Suspected environmental violations can and are reported by the public or by employees. On the federal level, the EPA has a hotline and a webpage “Report Environmental Violations.” State programs will vary.
Employee communication and training as well as stakeholder relations are critical to an effective environmental program. In order to foster community relations, companies may hold an open house and invite the community to learn more about the company and its operations. Events such as these provide an opportunity to highlight the environmental stewardship programs.
October: Operating Without an Environmental Permit
I recently discovered that we have been operating without a required environmental permit. What do I do?
First, we encourage you to discuss this with your legal counsel as there are strategic considerations on whether to self-report the violation and in what manner.
Second, from a federal perspective, the current EPA administration is emphasizing compliance over enforcement (a departure from previous approaches). Last year the EPA encouraged self-disclosure (see “EPA Announces Renewed Emphasis on Self-Disclosure Violation Policies”).
Also, many states have self-disclosure policies that may afford some mitigation of enforcement penalties.
The EPA and many states have audit privilege programs under which some protection from enforcement can be gained. To gain this protection, the violation must be discovered as part of an internal audit and the audit privilege procedures must be followed, including correction of the violation within the specified time frame.
Finally, as policies can and often do change under different administrations, we suspect that any changes in Washington D.C. will change future EPA policies.
Please contact Matthew Schroeder, M.S., P.E. if you have question or need assistance. Matt has helped companies with environmental permitting, including negotiations with state and federal regulators for more than two decades. You can reach Matt at 248-932-0228, Ext. 117.
September: Suspected Release from a Tank
While doing a routine inspection of our facility, it looks like we may have had a release of a regulated substance. Do I have to report this?
Yes. Under CERCLA, non-emergency releases must be reported to the Pollution Emergency Alerting System (PEAS) within 24 hours. You have 14 days to investigate the release to confirm the release or cancel the release report. Note that there may also be reporting obligations under state regulations.
August: National Pollutant Discharge Elimination System (NPDES)
How do I know if I need an NPDES permit?
Whether a facility needs a discharge permit depends on what is discharged and where it is discharged. If you discharge water that potentially contains a pollutant from a point source (i.e., pipe or conveyance) into the waters of the United States, an NPDES permit is required by the Clean Water Act. If you discharge into a municipal sanitary sewer or combined sewer system, you do not need an NPDES permit, though your municipality may require a discharge permit. This can apply to both wastewater and stormwater, as both are covered by NPDES permitting requirements. As with all issues of environmental compliance, NPDES permitting can be nuanced. If you are not sure of your compliance status, Dragun can help.
July: RCRA Episodic Event
What is an episodic event under the Resource Conservation and Recovery Act (RCRA)?
An episodic event (defined in 40 CFR section 262.231), is an activity that does not normally occur during a generator’s operations that causes the generator to exceed the threshold for its normal generator category (i.e., SQG or VSQG) for that month. Generators are not required to fulfill all the obligations of the higher generator category due to the episodic event. For example, a SQG is not required to file a Biennial Report due to waste generation during an episodic event.
Episodic events can be planned (cleaning, maintenance, etc…) or unplanned (a spill of a regulated substance). Generators are allowed one episodic event in a calendar year.
Note: an episodic event cannot last more than 60 days beginning on the first day episodic hazardous waste is generated and concluding on the day the hazardous waste is removed from the generator’s site.
June: TSCA Mercury Reporting Requirement
When is the mercury inventory report due?
July 1, 2019. This (first time) report applies if your business (1) manufactured or imported mercury or mercury-added products or (2) intentionally used mercury in a manufacturing process for immediate or eventual commercial advantage during calendar year 2018.
See: Reporting Requirements for the Mercury Inventory of the Toxic Substances Control Act
May: RCRA Changes
What is included in the EPA’s proposed changes to RCRA?
Can I self-certify my SPCC Plan?
Maybe. If your facility has the capacity to store 1,320 gallons or more of regulated oil, you must have an SPCC Plan. You can, with some exceptions, self-certify the SPCC Plan if you are below 10,000 gallons of storage capacity. Over this amount, a Professional Engineer must certify the plan. Please note, SPCC Plan requirements are far more complicated than this brief explication. Remember, you must 1) implement your plan and 2) review your plan every five years and update as necessary.
March: SARA Tier III Section 313
Do the list of chemicals reported under SARA Title III Section 313 (the Toxics Release Inventory) change from year-to-year?
The list can and does change. The Environmental Protection Agency makes changes to the TRI chemical list through “EPA-initiated review and through the chemical petitions process.” See “Changes to the TRI List of Chemicals.”
February: Tier II Extremely Hazardous Substance Reporting
Where can I find the list of Extremely Hazardous Substances (EHS) and Threshold Planning Quantities (TPQ)?
The SARA Section 302 EHS list and the TPQs are found alphabetically in 40 CFR 355 Appendix A, and numerically by Chemical Abstracts Service (CAS) number in 40 CFR 355 Appendix B. They can also be found in the EPA’s List of Lists.
January: SARA Reporting
Are retail businesses required to report their products in stock under the SARA regulations?
Maybe. SARA Tier II reporting is NOT just for manufacturing companies. Section 312 of SARA specifies that if your facility is required under the OSHA Hazard Communication Standard to prepare or have SDSs (formerly MSDSs) on hand, then you may be required to submit annual emergency and hazardous chemical inventory forms under EPCRA.
In general, facilities that store chemicals in quantities that equal or exceed the following thresholds must report:
- Hazardous Chemicals: 10,000 pounds
- Extremely Hazardous Substance: 500 pounds
Still not sure? Contact us and we can help you determine if you have reporting obligations.
Environmental Compliance Tips 2018
December: USEPA Self-Disclosure Policy
Under the current administration, how have the USEPA’s Self-Disclosure Violation Policies Changed?
The self-disclosure policies themselves have not changed. That said, in discussing the current Administration’s focus on compliance over enforcement, the USEPA reemphasized the self-disclosure program on May 15, 2018 (see “EPA Announces Renewed Emphasis on Self-Disclosed Violation Policies”).
November: Criteria Pollutants
What are the six criteria pollutants (under the Clean Air Act)?
The EPA’s six criteria pollutants under the Clean Air Act are carbon monoxide, lead, nitrogen oxides, ground-level ozone, particulates, and sulfur dioxides. The Clean Air Act requires the EPA to set National Ambient Air Quality Standards for these pollutants.
October: Satellite Accumulation Areas under RCRA
Can I have multiple Satellite Accumulation Areas (SAA) under RCRA?
Yes. The regulations do not limit the total number of SAAs at a facility. RCRA does limit the volume of hazardous waste that can be accumulated at a single SAA to 55 gallons (or 1 quart of acute hazardous waste).
September: RCRA Waste
Can I combine hazardous waste from two different facilities?
Under specific conditions, Very Small Quantity Generators of Hazardous Waste (formerly Conditionally Exempt Small Quantity Generators) can combine their waste with the Large Quantity Generator if control is under the same person. See RCRA Update
August: MOU between EPA and DOT
At a given facility, when is a tank truck delivering fuel (or other oil) regulated by DOT rather than EPA’s SPCC Rules?
EPA and DOT established a memorandum of understanding in 1971 to clarify jurisdictional issues such as this one. In essence, DOT has authority over “transportation-related facilities” while EPA regulates “non-transportation facilities.” In the example of the tank truck delivering fuel, the truck is not regulated by EPA when it is in transit to the facility. Upon arrival, the parked tank truck and the loading/unloading activities are subject to the SPCC Rules (assuming that the facility is regulated). If the tank truck still contains fuel when parked overnight at its home base, and the home base is required to have an SPCC, the tank truck would be subject to the SPCC Rules for the duration that it’s parked.
When designing secondary containment for your SPCC, don’t forget to consider this.
“Squirt Protection.” The design of secondary containment should take into consideration a potential rupture of the tank and squirting liquids.
One suggestion is to use the difference between the tallest container height and the wall height as the minimum distance between the stored containers and the edge of the containment area.
June: TRI Reporting Changes
Were there changes to TRI reporting for this year (reports due July 1st)?
Yes. Among the published changes are the following:
- A new TRI chemical category was added (Hexabromocyclododecane (HBCD))
- TRI NAICS Codes were adopted
- Updated De Minimis levels for several chemicals
See Important Information for Reporting Year 2017.
Do I have to report under Section 313 of EPCRA?
You must report under Section 313 of EPCRA (aka Toxic Chemical Release Inventory or TRI) if all of the following apply to your facility:
- You have 10 or more full-time employee equivalents (20,000 hours or greater)
- Your facility is classified with an applicable NAICS (See Table I. NAICS Codes)
- Your facility manufacturers (includes importing), processes or otherwise uses any of the EPCRA Section 313 chemicals in quantities at or greater than the threshold for a calendar year.
April SQG Reporting
When does the “re-notification requirement” for Small Quantity Generators (SQG) begin?
In 2021 (September 1st), SQGs will be required to a submit EPA Form 8700-12. This form provides notification to the EPA, or state if authorized under RCRA, regarding your hazardous waste activities. SQGs will be required to complete the form every four years. Currently, only Large Quantity Generators are required to submit the form (on even numbered years).
March: SPCC Oil Storage “Capacity”
I have the capacity to store more than 1,320 gallons of oils above ground, but never store that much. Do I need a SPCC Plan?
Assuming your facility is regulated, and the stored substances are regulated, then, yes you are required to prepare and implement a Spill Prevention Control and Countermeasure (SPCC) plan.
The SPCC Plan rules are based on the aggregate storage capacity. When calculating total storage capacity, remember to include manufacturing and operational electric equipment (transformers) if their oil storage reservoir capacity is greater than 55 gallons.
February: EPCRA Reporting Changes Effective 2018
What has changed for EPCRA reporting for 2018?
Starting in 2018, the hazard categories for each chemical must be included in the report. We discussed these changes last year (Changes in SARA Tier I and Tier II Chemical Reporting Regulations).
January: CERCLA Reportable Quantities
If I have a chemical release at my facility, what do I consider to determine whether the release is reportable under CERCLA?
1. Is the chemical a CERCLA Hazardous Substance?
2. Is the release amount (in a 24-hour period) at or above the reportable quantity?
3. Are there other sources of this chemical at my facility that could have been released during the same time period?
If you have a reportable release, you must notify the National Response Center immediately.
Environmental Compliance Tips 2017
December: SPCC Requirements for Milk Storage
Is milk considered an oil under the Spill Prevention Control and Countermeasure Plan (SPCC) Rules?
While there was dispute over regulating the storage of milk (in excess of threshold quantities) due to fat (oil) content, the Environmental Protection Agency specifically exempted milk from the SPCC requirements in 2011. For more information on environmental regulations affecting agriculture, see The Changing Environmental Regulatory Landscape for Agriculture.
November: Small Quantity Generators
The classification of Conditionally Exempt Small Quantity Generators (CESQG), under RCRA, was recently changed to what?
The USEPA made several changes to RCRA, including changing the name of CESQG to Very Small Quantity Generator (VSQG). See our August 17th blog for more information on the changes to RCRA. NOTE: for those states designated to implement the RCRA program, these changes must be adopted by the states.
October: SPCC Self Certification
Can I Self Certify My Spill Prevention Control and Countermeasure (SPCC) Plan?
Yes, if you meet the following criteria:
The facility aboveground oil storage capacity is 10,000 gallons or less. And,
In the three years prior to your SPCC Plan being certified, there has been no discharge to navigable waters. Discharge is defined as a single release of greater than 1,000 gallons or two releases greater than 42 gallons within any 12-month period.
If these criteria are met, the facility qualifies for self-certification.
- Tier I if no individual Aboveground Storage Tank (AST) greater than 5,000 gallons.
- Tier II if any AST is greater than 5,000 gallons.
September: NPDES and Secondary Containment
Is discharge of precipitation that accumulates in secondary containment structures allowed under NPDES stormwater discharge permits?
Maybe. In some states, liquids accumulated in a secondary containment structure can be discharged to the ground surface or storm sewer following inspection and/or characterization. In many states, however, discharge from secondary containment structures is strictly prohibited in the permit conditions unless the owner/operator has obtained a permit for the discharge. We recommend that you check the conditions of your NPDES stormwater discharge permit to be sure.
Do the SPCC Rules apply only to petroleum products?
No, oils of any type are regulated. This includes, but is not limited to, petroleum, fuel oil, waste oil, vegetable oils, and oils of animal, fish, or marine mammal origin. The USEPA does not publish a list of regulated oils. If you have a question whether a particular material is subject to the SPCC rules, consult the USEPA or a qualified professional engineer for a determination.
July: NPDES Stormwater
If my facility stores pallets outdoors, is this a potential violation of my NPDES stormwater discharge permit?
Containers, racks, and other transport platforms (e.g., wooden pallets) used with the drums, barrels, etc., can be stored outside providing they are contaminant-free.
While having contaminant-free pallets stored outdoors may not trigger a violation, if your facility has poor housekeeping, it may give reason for an inspector look harder into any other possible issues.
June: Pollution Incident Prevention Plan (PIPP)
Does the sulfuric acid contained in material handling-equipment batteries trigger the (Michigan) PIPP requirements?
Sulfuric Acid is a polluting material as defined by the PIPP rules. There is an exemption for small lead-acid batteries (less than 10 gallons of electrolyte solution); however, batteries used for fork lifts or Hilos are typically not exempt because of the size of the batteries. There is a narrowly-defined exemption for these larger batteries: “…by not exceeding …10 gallons or 100 pounds, and, where the sulfuric acid container, often referred to as a cell, is not hydraulically connected to other cells, is exempt from the Part 5 rules” (MDEQ Water Bureau Part 5 Rules Operational Guidance [POG#4]).
Is integrity testing of bulk storage containers required?
Integrity testing and routine inspection are required for aboveground bulk storage containers with a capacity of 55 gallons or more.
Integrity testing must be performed according to industry standards such as those published by American Petroleum Institute or Steel Tank Institute. For some containers, such as 55-gallon drums, visual inspection only may meet the requirements of the standards.
Environmentally-equivalent measures may be substituted for integrity testing when reviewed and certified by a professional engineer. More detail on environmental equivalence can be found in Chapter 7 of the USEPA SPCC Guidance for Regional Inspectors.
Note that oil-filled equipment is not a bulk storage container and is, therefore, not subject to the integrity testing requirements of the SPCC rule.
Do I need an NPDES Stormwater Permit?
The requirement for a stormwater discharge permit will depend on a number of factors. In general, if you discharge your stormwater to the local publicly owned treatment works (POTW), a permit is likely not required. If you have a point source discharge of stormwater to a water of the United States, then it is more likely that you will need a permit. It will depend on your Standard Industrial Classification Code and whether outdoor storage or operations at the facility could contribute contaminants to storm water. Contaminants are widely defined under this regulation and include things like rust and sediment. Ultimately, check with your permitting authority (state, if authorized, or EPA).
What is the definition of a RCRA empty container?
In general (not including acutely hazardous waste or compressed gas), “RCRA Empty” is when all wastes have been removed and no more than 2.5 cm or 1 inch of materials remain (see 40 CFR 261.7 Residues of hazardous waste in empty containers).
February: Extremely Hazardous Substance Reporting under SARA 302 vs 311/312
How does reporting of Extremely Hazardous Substances (EHS) differ under Section 302 and Section 311/312 of SARA?
Storage of EHS must be reported under both SARA Section 302 and Sections 311/312 if the storage amount is above the applicable threshold. However, the threshold can be different for the same EHS under the different sections.
Section 302 of SARA is a one-time notification of EHS at a facility based on Threshold Planning Quantities (e.g., the Sulfuric Acid TPQ is 1,000 lbs).
Section 312 of SARA is an annual submission due by March 1st each year based on Threshold Planning Quantities (e.g., the Sulfuric Acid TPQ is 500 lbs).
How do the reporting thresholds differ between SARA Tier II and TRI reporting?
SARA Section 311/312 Tier II thresholds apply to the STORAGE of chemicals at any one time during the calendar year:
- Extremely Hazardous Substance (EHS) at 500 pounds or the threshold planning quantity (TPQ), whichever is less
- Gasoline at retail gas stations in USTs at 75,000 gallons
- Diesel fuel at retail gas stations in USTs at 100,000 gallons
- Other OSHA hazardous chemicals at 10,000 pounds
SARA Section 313 Toxic Release Inventory (TRI) thresholds apply to the USAGE of certain chemicals in a calendar year. Section 313 contains a specific list of reportable chemicals.
- Chemicals manufactured, imported, or processed at 25,000 pounds/year
- Chemicals “otherwise used” at 10,000 pounds/year
- Persistent, Bioaccumulative, and Toxic (PBT) chemicals are at lower thresholds