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 or Jeffrey Bolin, M.S., CHMM at 248-932-0228 Ext. 125

Note: Dragun can help you assess and remediate PFAS as well as develop PFAS management plans.  Put our experience and expertise to work for you!  Also see our PFAS Resources Page.

Environmental Compliance Tips and Insights 2023

All of the tips below were reviewed by Matthew Schroeder, M.S., P.E. Matt is a senior environmental engineer at Dragun Corporation.  Matt has advised industrial, commercial, municipal, and agricultural clients on environmental compliance for 30 years. Matt has defended violations under RCRA, SARA, CWA, and NPDES; prepared, reviewed, and implemented numerous emergency plans; and advised on discharge permitting compliance for a wide variety of industries. Matt is a frequent speaker, author, and expert witness. See Matt’s bio.

NEW! Seven Steps to Prepare for a Compliance Inspection


October: Proposed Changes to RCRA Empty Containers

Is the EPA changing the definition of a “RCRA-Empty” container?

The EPA has issued an Advanced Notice of Proposed Rulemaking for “Used Drum Management and Reconditioning.”

The EPA is seeking comments on the proposed changes, including:

  • Eliminating 40 CFR 261.17’s “empty” container exemption;
  • Modifying the requirements for a container to qualify as “empty”;
  • Expanding record-keeping, labeling, and certification requirements for generators;
  • Increasing requirements surrounding rinsate from drums; and
  • Requiring all drum reconditions to obtain a full RCRA Subtitle C TSDF (Treatment, Storage, and Disposal Facility) permit or receive a variance.

The deadline for comments is September 25, 2023.

Sources: The National Law Review and Federal Register.

September: New EPA Memo Regarding Lithium-Ion Batteries

How are spent lithium-ion batteries regulated under RCRA?

On May 24, 2023, the EPA issued a memo, “Lithium Battery Recycling Regulatory Status and Frequently Asked Questions.”   There is no change in the Agency’s position, but with the significant increased demand and use of lithium ion batteries, the EPA clarified how the hazardous waste regulations for universal waste and recycling apply to lithium-ion batteries.

The memo states in part, “Today the Agency is clarifying that most lithium-ion batteries are likely hazardous waste at end of life and that they can be managed under the streamlined hazardous waste management standards for universal waste until they reach a destination facility for recycling or discard.”

If you handle lithium ion batteries, you may want to review the 19 Frequently Asked Questions regarding lithium-ion battery recycling.

August: Proposed Amendments to TSCA

What are the proposed amendments to the Toxic Substance Control Act?

A notice was issued in the Federal Register on May 26, 2023: “Updates to New Chemicals Regulations Under the Toxic Substances Control Act (TSCA).”

Under the proposed amendments, the Environmental Protection Agency would be required to make a determination on each premanufacture, significant new use, and microbial commercial activity notice before beginning manufacturing/processing the chemical substance.

The amendments also clarify the information to be submitted in premanufacture, significant new use, and exemption notices, in the following categories:

  • Physical and chemical properties and environmental fate characteristics;
  • Categories of use;
  • Details concerning manufacture, processing, and use;
  • Worker exposure;
  • Environmental releases; and pollution prevention information.

EPA is also proposing changes for low volume exemptions and low release and exposure exemptions.

Comment period closes July 25, 2023.


Jones Day

Federal Register Notice

July: Oil Spill Reporting

If we have an oil discharge, as regulated under the Spill Prevention Control and Countermeasure (SPCC) Plan, what information will the National Response Center need from us?

  • Name, organization, and telephone number
  • Name and address of the party responsible for the incident
  • Date and time of the incident
  • Location of the incident
  • Source and cause of the discharge
  • Types of material(s) discharged
  • Quantity of materials discharged
  • Danger or threat posed by the discharge
  • Number and types of injuries (if any)
  • Weather conditions at the incident location
  • Other information to help emergency personnel respond to the incident

National Response Center: 800-424-8802 or 202-426-2675

The authority for the requirements under the SPCC, are found in section 311(j)(1)(C) of the Clean Water Act as amended by the Oil Pollution Act of 1990.

Note that reporting under state specific regulations may also be required.

June: EPA PFAS Data Portal

Is there a central resource for PFAS data?

Yes. On January 5, 2023, the EPA launched the PFAS (per- and polyfluoroalkyl substances) Analytic Tool.

The site includes, “location-specific information related to PFAS manufacture, release, and occurrence in the environment as well as facilities potentially handling PFAS.”  The webpage includes PFAS data relative to

  • Facilities that may be handling PFAS
  • Waste transfers from RCRA (Resource Conservation and Recovery Act) e-Manifest
  • Toxic Release Inventory
  • Clean Water Act discharge monitoring
  • Reported spills containing PFAS
  • Federal facilities where PFAS are being investigated
  • Drinking water test results
  • Superfund sites with PFAS

See PFAS Analytic Tool.

For more information on PFAS, see our PFAS Resource Page.

May: New TRI Reporting Requirements

Are there changes to the Toxic Release Inventory (TRI) for Reporting Year 2022?

 Yes.  The most notable change for TRI reporting year 2022 (due July 1, 2023) are the addition of four per- and polyfluoroalkyl substance (PFAS).

  • perfluorobutane sulfonic acid (375-73-5)
  • potassium perfluorobutane sulfonate (29420-49-3)
  • perfluorobutanesulfonate (45187-15-3)
  • 2-Propenoic acid, 2-methyl-, hexadecyl ester, polymers with 2-hydroxyethyl methacrylate, γ-ω-perfluoro-C10-16-alkyl acrylate and stearyl methacrylate (203743-03-7)

For information on other changes for this year’s TRI reporting, see the EPA’s webpage.

April: Proposed PFAS Rule under TSCA

What was the proposed (January) Significant New Use Rule (SNUR) under the Toxic Substance Control Act (TSCA) with respect to Per- and Polyfluoroalkyl Substance (PFAS)?

On January 26, 2023, the Environmental Protection Agency (EPA) proposed a SNUR under TSCA for those PFAS that have not been manufactured (including imported) or processed for “many years” and are consequently designated as inactive PFAS on the TSCA Chemical Substance Inventory.

If the rule passes, use of any of the estimated 300 inactive PFAS would require EPA review and risk determination.

See: Federal Register Announcement.

Also see our PFAS Resources Page.

March: PVC as RCRA Hazardous Waste

Will discarded Polyvinyl Chloride (PVC) be listed as a hazardous waste under the Resource Conservation and Recovery Act (RCRA)?

The rulemaking petition from the Center for Biological Diversity requesting that discarded PVC be listed as a hazardous waste under RCRA has been tentatively denied.  Comment period on the tentative denial must be submitted by February 13, 2023.  See our June 2022 Compliance Tip for background.

February: New PFAS Reporting Requirements for TRI

Are PFAS reportable under the Toxic Release Inventory (TRI)?

Yes. USEPA required reporting of PFAS on TRI reports in 2020.  Recently, nine additional per- and polyfluoroalkyl substances (PFAS) were added to the Toxic Release Inventory (TRI) list, which previously contained 180 PFAS.  In addition, USEPA has proposed removing the “de minimis” exemption for PFAS.  If this affects your company, you will be required to include these chemicals (below) in your 2024 TRI report (Source: USEPA).

  • Acetamide, N-(2-aminoethyl)-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., polymers with N1,N1-dimethyl-1,3-propanediamine, epichlorohydrin and ethylenediamine, oxidized (2742694-36-4)
  • Acetamide, N-[3-(dimethylamino)propyl]-, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs. (2738952-61-7)
  • Acetic acid, 2-[(γ-ω-perfluoro-C4-20-alkyl)thio] derivs., 2-hydroxypropyl esters (2744262-09-5)
  • Alcohols, C8-16, γ-ω-perfluoro, reaction products with 1,6-diisocyanatohexane, glycidol and stearyl alc. (2728655-42-1)
  • Ammonium perfluorobutanoate (10495-86-0)
  • Perfluorobutanoate (45048-62-2)
  • Perfluorobutanoic acid (375-22-4)
  • Potassium heptafluorobutanoate (2966-54-3)
  • Sodium perfluorobutanoate (2218-54-4)

January: Eliminating de minimis Exemption for TRI Reporting

Is the EPA eliminating the TRI de minimis exemption for PFAS reporting?

It is currently proposed. On December 5, 2022, the Environmental Protection Agency (EPA) published a proposal to eliminate the de minimis exemption reporting under the Toxic Release Inventory (TRI) for small quantities of regulated per- and polyfluoroalkyl substances (PFAS).

Under de minimis exemptions, facilities can disregard concentrations of TRI listed chemicals below 1% (0.1% for carcinogens) in mixtures or other trade name products they import, process or otherwise use in making threshold calculations.

Comments on proposed action close on February 3, 2023.


Environmental Compliance Tips and Insights 2022

All of the tips below were reviewed by Matthew Schroeder, M.S., P.E. Matt is a senior environmental engineer at Dragun Corporation.  Matt has advised industrial, commercial, municipal, and agricultural clients on environmental compliance for 30 years. Matt has defended violations under RCRA, SARA, CWA, and NPDES; prepared, reviewed, and implemented numerous emergency plans; and advised on discharge permitting compliance for a wide variety of industries. Matt is a frequent speaker, author, and expert witness. See Matt’s bio.

December: Hydrofluorocarbons (HFCs)

Is the USEPA moving forward with restricting HFCs?

Yes. The American Innovation and Manufacturing Act (2020) requires the USEPA to adopt regulations to phase down production and consumption of HFCs to 15% of their baseline levels by 2036 through use of an allowance allocation and trading program. On Thursday, November 3, 2022, the EPA posted in the Federal Register “Phasedown of Hydrofluorocarbons: Allowance Allocation Methodology for 2024 and Later Years.” Comment period closes December 19, 2022.

November: EPA Enforcement Alert

Did the EPA issue an Enforcement Alert regarding stationary engines?

Yes. In August 2022, the Environmental Protection Agency (EPA) sent an alert stating they are finding numerous violations of the Clean Air Act associated with stationary engines. EPA also states, “The Agency has taken enforcement actions and assessed substantial penalties for facilities that have failed to comply.”

October: Risk Management Plan Rules

Did the USEPA propose changes to the Risk Management Plan (RMP) Rules?

Yes. On August 19, 2022, the United States Environmental Protection Agency issued the proposed amendments to the RMP rules (Section 112 (r)) of the Clean Air Act.

According to Chemical and Engineering News, the proposed changes would require covered facilities to develop procedures for informing the public about accidental releases and require employee and community participation in oversight decisions, including incident investigations and compliance audits.  The amendments would also have provisions to allow employees to anonymously report RMP-related accidents and issues of noncompliance. The amendments also include consideration of climate impacts.

Comments on the proposed amendments must be submitted on or before October 31, 2022.

See: “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention.”

September: RCRA TSDF Contingency Plans

As a TSDF Owner/Operator, with whom am I required to share my contingency plan?

Under the Resource Conservation and Recovery Act, Treatment, Storage, and Disposal Facility (TSDF) owner/operators must maintain a copy of their contingency plan on site.  The plan must also be shared with local police departments, fire departments, hospitals, and state and local response teams.

August: Superfund Tax on Certain Chemicals

Has the Superfund Excise Tax been reinstated?

Yes.  Under the Infrastructure Investment and Jobs Act, the excise tax has been reinstated on certain chemicals and imported chemical substances.  The reinstated tax became effective on July 1, 2022.  If this possibly affects your business, see the news release and Frequently Asked Questions created by the Internal Revenue Service.

July: Large Quantity Generator – Quick Reference Guide Requirements

Has the EPA issued a Frequently Asked Questions (FAQ) document regarding the Large Quantity Generator (LQG) Quick Reference Guide (QRG) requirements?

Yes. In November 2016, the EPA issued a Final Rule (Waste Generator Improvement Rule) that revised the Resource Conservation and Recovery Act (RCRA).  These revisions, among other things, require a Quick Reference Guide (QRG) as part of a contingency plan. The QRG, which replaces the Executive Summary, is intended to allow emergency responders to more quickly evaluate potential risk in the event of an emergency.  See map of states that have adopted the 2016 Waste Generator Improvement Rule.

Frequently Asked Questions about Large Quantity Generator Quick Reference Guides (April 19, 2022).

June: PVC as a Hazardous Waste

Is the EPA considering classifying discarded Polyvinyl Chloride (PVC) a RCRA Hazardous Waste?

Yes. The May 4, 2022, notice in the Federal Register states, “In accordance with the Environmental Protection Agency (EPA) Administrator’s March 18, 2022, Memorandum entitled Consent Decrees and Settlement Agreements to Resolve Environmental Claims Against the Agency, notice is hereby given of a proposed consent decree that resolves Center for Biological Diversity v. U.S. Environmental Protection Agency, et al., a case in the United States District Court for the District of Columbia (1:21-cv-2210-JDB) that alleges EPA unreasonably delayed taking action on a petition to list discarded polyvinyl chloride (PVC) as hazardous waste under the Resource Conservation and Recovery Act (RCRA).”

Written comments on the proposed consent decree must be received by June 3, 2022.

See Proposed Consent Decree, Unreasonable Delay Claim Regarding Discarded Polyvinyl Chloride Listing.

May: Unannounced Environmental Regulatory Inspections

Can state and/or federal regulators conduct an unannounced inspection of my business?

Yes. If you are a regulated business, the Environmental Protection Agency and state regulators have the authority to inspect your facility.  There are specific actions you may want to consider if this occurs.  Make sure you have a pre-inspection meeting with the regulators and exchange contact information, go over your health and safety rules, and ask the specific purpose of the inspection.  Once you have ascertained the inspection purpose, keep them focused on their stated objective.  A close-out meeting following the inspection can be helpful to clarify any noncompliance issues identified.

Though an unannounced inspection can be stressful, be professional, polite, and take good notes and photos, if applicable.  Finally, request that they send you a copy of their report.

If you believe enforcement is forthcoming, contact your legal and technical counsel as soon as possible.

April: Lithium-Ion Batteries

Can spent Lithium-Ion Batteries (LIBs) be managed as a Universal Waste?

Yes.  However, because of the risk of fire associated with LIBs, they deserve special attention/handling. A recent report by the USEPA, in which they examined fires associated with LIBs, states, “This report found 64 waste facilities that experienced 245 fires that were caused by, or likely caused by, lithium metal or lithium-ion batteries.”

March: Additional PFAS Added to TRI

Did the USEPA add additional PFAS to the TRI database for calendar year 2022?

Yes. On January 24, 2022, the EPA announced the addition of four per- and polyfluoronated alkyl substances (PFAS) to the Toxic Release Inventory list. If you are required to track and report these additional PFAS chemicals, your report will be due July 1, 2023.  See Addition of Certain PFAS to the TRI by the National Defense Authorization Act.

February: Environmental Reporting Deadlines

What are the environmental reporting deadlines in 2022?

Below are the more common federal reporting deadlines for 2022. Some more esoteric deadlines only apply to specific market segments (e.g., Mercury Inventory Reporting Rule).  There are also state and local reporting requirements in addition to the federal requirements.

  • March 1: EPCRA SARA Tier II (Sections 311 and 312)
  • March 1: RCRA Biennial Reports for Large Quantity Generators
  • March 31: Greenhouse Gas Emissions Report
  • April 1: Air Emissions Inventory: Class I and Class II
  • July 1: EPCRA SARA TRI (Section 313)

EPCRA = Emergency Planning and Community Right-To-Know Act
SARA = Superfund Amendments and Reauthorization Act
RCRA = Resource Conservation and Recovery Act
TRI = Toxics Release Inventory

If you have specific questions about your reporting obligations, contact our office at info@dragun.com

January: Environmental Compliance Assessments

My legal counsel recently suggested that I do an environmental compliance assessment. Is that really necessary?

Environmental compliance assessments can be a great help, especially when you don’t have a person devoted full time to environmental compliance.  Minor changes in your facility or processes can potentially violate a permit. Changes, such as using replacement products that might have a different VOC content, moving a manufacturing machine to another part of your plant, or adding equipment or containers that hold oil can affect your facility’s compliance status.

Some of our clients conduct environmental compliance assessments annually, others as they make changes to the facility.  You should strongly consider an assessment to avoid unnecessary fines and penalties related to environmental compliance obligations.  USEPA and many states have programs under which environmental audits can be completed without risk of enforcement provided that corrective actions are implemented in a timely manner.  If you are considering an environmental compliance assessment, we recommend discussing with legal counsel whether using audit privilege would be beneficial. Need help? Email us info@dragun.com

Environmental Compliance Tips and Insights 2021

December: Hazardous Waste and Hazardous Material

What is the difference between a hazardous waste and a hazardous material?

A hazardous waste is defined under the Resource Conservation and Recovery Act (RCRA) as a waste material with properties that make it dangerous or capable of having a harmful effect on human health or the environment.  Note that materials that contain these properties are not a hazardous waste until they become a waste.  Wastes can be defined as a characteristic hazardous waste or a listed hazardous waste.

A hazardous material, on the other hand, is not as easily defined.  Hazardous materials are defined by the U.S. Environmental Protection Agency (EPA), the U.S. Occupational Safety and Health Administration (OSHA), the U.S. Department of Transportation (DOT), and the U.S. Nuclear Regulatory Commission (NRC).  Each has its own definition of a hazardous material, and in general, these definitions are broad.  Hazardous materials can include dry ice, corrosives, batteries, infectious substances, radioactive substances, aerosols, and more.

November: New Ownership and Environmental Management Plans

Our facility will have a change in ownership soon. Can we use the existing SPCC Plan?

Assuming you are continuing the same operations and the Spill Prevention Control and Countermeasure (SPCC) plan is up-to-date and implemented, you can use the same plan. However, you must change the plan to reflect the new owners and contact names.  Information that is non-technical (such as company name) does not require recertification by a Professional Engineer.  Note that the new management will need to sign the revised plan.

If any changes are made by the new owners (location or quantity of oil storage and use, facility layout, secondary containment, etc.) you will need to update your plan and have the plan recertified by a Professional Engineer.

October: Increased Monetary Penalties

Did the USEPA increase the penalties for non-compliance?

Yes.  On December 23, 2020 the USEPA increased the cost for non-compliance under the Civil Monetary Penalty Inflation Adjustment.

JD Supra provided this summary:

According to the December 23 Final Rule, maximum civil penalty amounts will increase as follows:

  • FIFRA civil penalties increased to $20,528 (from $ $20,288) per violation.
  • RCRA civil penalties increased to $76,764 (from $75,867) per violation.
  • TSCA civil penalties increased to $41,056 (from $40,576) per violation.
  • EPCRA civil penalties increased to $59,017 (from $58,328) per violation.
  • CAA civil penalties increased to $102,638 (from $101,439) per violation.
  • CWA civil penalties increased to $56,460 (from $55,800) per violation.

September: Environmental Compliance Resources

I am new to environmental compliance, are there resources available to assist me?

The US Environmental Protection Agency has a “Compliance” page that has several useful links. As we mentioned last month, the “EPA List of Lists” is a good resource as well.  You can review this page, which has nearly four years of compliance tips.

Also, don’t forget to check with your state (and local governments) who may have requirements beyond the federal regulations. The Michigan Department of Environment, Great Lakes, and Energy publishes a helpful guidance document titled the “Michigan Guide to Environmental Regulations.”

If you have a specific environmental compliance question, contact Jeff Bolin, Matt Schroeder, or John Collins.


August: EPA Consolidated List of Chemicals

What is the EPA’s List of Lists?

The consolidated list of chemicals (list of lists) is USEPA’s consolidated summary of chemicals subject to reporting requirements under the Emergency and Community Right to Know Act (EPCRA) and Section 112 (r) of the Clean Air Act.

The list will help you determine whether you need to submit reports under sections 302, 304, or 313 of EPCRA.  The list also includes what reports may need to be submitted.

USEPA List of Lists

July:  Enforcement and Compliance History Online (ECHO)

How might the recent USEPA changes to the ECHO Dashboard affect those facilities listed?

In May 2020, the EPA added a “State Clean Air Act Dashboard.” The dashboard focuses on stationary sources only.  It provides information such as how many inspections were performed, how many violations were identified, source type (major, minor, synthetic minor) and more.  With this type of information more readily available to the public, projects with Environmental Justice concerns may receive additional scrutiny.

June: Changes to Toxic Release Inventory (TRI)

Is the EPA moving forward with the rumored changes to TRI?

Yes. The changes will focus on expanding who must report ethylene oxide, reporting for natural gas facilities, and PFAS. For details see “EPA Announces Plan to Update Toxics Release Inventory to Advance Environmental Justice.”

May: Superfund Liability

If I buy a property that is later named as part of a Superfund Site, am I liable?

Maybe. Liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) is complicated.  It provides for multiple liability defenses to purchasers of contaminated property if you conduct “due diligence” within certain timeframes of buying the property.

The starting point is conducting a Phase I Environmental Site Assessment in compliance with the All Appropriate Inquiries Rule.  This may or may not be enough to garner liability protection under Superfund. Your all appropriate inquiries may require going beyond the Phase I ESA.  If you did not conduct an AAI-compliant Phase I, you may have a significant challenge avoiding liability (Contact Jeff Bolin if you have questions).

April: PFAS Reporting Requirements

We may have to report PFAS in our 2021 Toxics Release Inventory report in July. Has the EPA provided any guidance?

Yes, the EPA has established a webpage for those facilities that “manufacture, produce, or otherwise use TRI-listed Per- and Polyfluoroalkyl Substances (PFAS).”  For more information see “PFAS Reporting Resources.”

If you need assistance or have questions, contact us info@dragun.com.

March: Defining a Hazardous Waste

What is considered a hazardous waste under the Resource Conservation and Recovery Act (RCRA)?

Under RCRA there are two types of hazardous waste: A Listed Hazardous Waste or a Characteristic Hazardous Waste.

Listed hazardous waste are wastes (that have not been excluded) that are a solid as defined in RCRA and are on one of four lists:

F Listed (40 CFR section 261.31) from specific industrial processes from non-specific sources. Example: electroplating and metal finishing.

K Listed (40 CFR section 261.33) hazardous wastes from specific sectors of industry and manufacturing and are considered source-specific wastes.  Example: wood preserving.

P Listed (40 CFR section 261.33) and U Listed (40 CFR section 261.33) wastes are pure and commercial grade formulations of certain unused chemicals that are being disposed. For a waste to be considered a P- or U-listed waste it must meeting the following three criteria:

  • The waste must contain one of the chemicals listed on the P or U list;
  • The chemical in the waste must be unused; and
  • The chemical in the waste must be in the form of a commercial chemical product.

Example: P 004 is listed for the chemical Aldrin

A Characteristic hazardous waste (40 CFR Sections 261.10 – 261.11) is a solid waste that exhibits one or more of the following characteristics:

Ignitability (D001)

Corrosivity (D002)

Reactivity (D003)

Toxicity or EP Toxicity (D004 – D043)

February: Facility Response Plans

Who is required to prepare a Facility Response Plan (FRP)?

An FRP is similar in nature to a Spill Prevention Control and Countermeasure (SPCC) Plan. Facilities that could reasonably be expected to cause “substantial harm” to the environment by discharging oil into or on navigable waters are required to prepare and submit Facility Response Plans (FRPs).

Facilities that could cause “significant and substantial harm” are required to have their plans approved by an EPA Regional Administrator.

Substantial Harm is defined by the USEPA as:

A facility may pose “substantial harm” according to the FRP rule if it:

  1. has a total oil storage capacity greater than or equal to 42,000 gallons and it transfers oil over water to/from vessels;or
  2. has a total oil storage capacity greater than or equal to 1 million gallons and meets one of the following conditions:
    • does not have sufficient secondary containment for each aboveground storage area.
    • is located at a distance such that a discharge from the facility could cause “injury” to fish, wildlife, and sensitive environments.
    • is located at a distance such that a discharge from the facility would shut down a public drinking water intake.
    • has had, within the past five years, a reportable discharge greater than or equal to 10,000 gallons.

If the facility does not meet the criteria (either under 1 or 2), then the facility is not subject to the FRP rule via self-identification.

January: PFAS Reporting Under CERCLA

What is the significance if PFAS are classified as a hazardous substance under CERCLA?

If USEPA designates PFAS as hazardous substances under CERCLA, there will be reporting requirements under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and/or the Emergency Planning and Community Right to Know Act (EPCRA). This designation would also trigger liability for releases of PFAS to the environment, potentially leading to increased enforcement. This potential liability is of particular concern to industries such as municipal wastewater treatment plants, landfills, and agriculture, whose processes do not include PFAS but may receive PFAS in their materials. To learn more about reporting requirements, see CERCLA and EPCRA Continuous Reporting. For more information on PFAS, see our PFAS Resources Page.



Environmental Compliance Tips 2020

December: SPCC Five-Year Review

Does the review of my SPCC Plan require certification by registered P.E.?

Maybe. The SPCC Rules require owners and operators to review an SPCC Plan at least once every five years.  Dragun recommends annual review for most facilities.  If the review results in no technical amendments (changes in the facility design, construction, operation, or procedures for oil handling and spill response) then you do not need a P.E. to certify the review.  The EPA states, “It is the responsibility of the owner or operator to document the completion of a review and decide whether changes have occurred that would require a technical plan amendment and therefore a PE certification.

November: Defining Pollutant under the Clean Water Act

What is a “pollutant” under the Clean Water Act?

“Pollutant” is broadly defined and includes “dredged soil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste.”

If you discharge a pollutant to a water of the United States, you will likely need a National Pollutant Discharge Elimination System Permit.

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).

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?

The proposed amendments primarily address laboratory methods for ignitability.  These changes will not modify RCRA to the extent of the 2016 amendments See the proposed rule, April 2, 2019.

April: SPCC

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.”  SeeChanges 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.

July: SPCC

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.

August: SPCC

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.

April: NPDES

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).

It is worth noting that the municipal governments are beginning to assess businesses for stormwater discharges to POTWs (see Detroit, MI and Toronto, ON), and the charges can be significant.

March: RCRA

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).

See the EPA’s List of Lists for details

January: SARA

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