U.S. EPA Region 5 settled with G & S Titanium Inc., Wooster, Ohio, for alleged violations of the authorized Ohio Resource Conservation and Recovery Act requirement for treatment, storage and disposal facilities. A $33,600 penalty has been set. 

According to the agency, the company failed to have a storage permit, conduct daily inspections of and keep records on its hazardous waste tank, provide annual employee training and keep records about it and maintain written job descriptions.

G & S, a titanium manufacturer, generates hazardous waste acid and chromium sludge.

U.S. EPA Region 5 reached an agreement with Diamond Hard Chrome Co. Inc., Cleveland, Ohio, for violations of the authorized Ohio Resource Conservation and Recovery Act financial assurance requirements for hazardous waste treatment, storage and disposal facilities.

 The chrome plating business has agreed to pay a penalty of $15,000 to settle the violations.  In documents submitted to Ohio EPA, Diamond Hard Chrome filed to close its facility and the company failed to show it had the financial resources or an adequate plan to complete the closure properly and pay for post-closure actions to protect the environment.  

The submittals raised a concern within the state agency that the company might just skip out on its environmental obligations at the hazardous waste site.  As part of the settlement, the company will submit a revised RCRA post-closure plan to Ohio EPA that includes a ground-water monitoring plan with cost estimates and financial assurance. 

No word from US EPA or Ohio EPA if the company actually has real or sufficient money to fund closure activities, long-term groundwater monitoring, or post-closure activities required under RCRA.  Watch for this company to become news in the future on these items, especially if the economy remains in the toilet.

A federal judge assessed the Southern Union Company $18 million for illegally storing mercury at a company-owned site in Pawtucket. The sentence imposed in federal court includes a $6 million criminal fine and $12 million in payments to community initiatives including the Rhode Island Foundation, the Rhode Island Department of Environmental Management (DEM) Emergency Response Fund and Hasbro’s Children’s Hospital.

In October 2008, a jury in Providence found Southern Union guilty of illegally storing mercury for several years at a site off Tidewater Street, near the Seekonk River. The Houston-based company owned New England Gas for several years.

During the trial in 2008, the government presented evidence that, in 2001, Southern Union began removing from customers’ homes gas regulators that contained mercury. Southern Union employees brought the regulators to a facility on Tidewater Street in Pawtucket, where the regulators, and later loose mercury, were stored in a shed. Southern Union initially hired an environmental services company to prepare the mercury for shipment to a processing facility in Pennsylvania.

The recycling and reclamation ceased at the end of 2001. However, gas company technicians continued to remove regulators from customers’ homes, and the company continued to store at Tidewater Street both loose liquid mercury – in containers such as glass jars and a plastic jug – and regulators that still contained mercury. Apparently hoping that the mercury would be forgotten, a local company official drafted proposals to renew the removal project, but the company never finalized those proposals or put them out to bid.

Three years later, in September 2004, three unsuspecting youths broke into the mercury storage building and took several containers of liquid mercury. Being totally stupid, they broke some of them, spilling mercury around the facility’s grounds, and took some of the mercury to a nearby apartment complex, where it was also spilled.

For about three weeks, spilled mercury remained undetected at the Tidewater facility and at the apartment complex. After the contamination was discovered, the apartment complex was evacuated, and its 150 tenants were displaced for two months while the mercury was cleaned up.

In addition to fining Southern Union $6 million, Judge Smith put the company on two years probation. As a condition of probation, he ordered the company to pay $11 million to the Rhode Island Foundation for the establishment of environmental remediation and education projects and children’s health initiatives.

He also ordered that the company pay $1 million in $200,000 increments to the Rhode Island chapter of the American Red Cross, Hasbro’s Children’s Hospital and the DEM Environmental Response Fund. Judge Smith stayed the fine and other assessments while the company appeals the conviction.

The investigation that led to the prosecution was a joint effort of the Environmental Protection Agency, Criminal Investigation Division; the DEM, Office of Criminal Investigation; the DEM Office of Emergency Response and the DEM Office of Compliance and Inspection.  The case was prosecuted by the Justice Department’s Environment and Natural Resources Division and the U.S. Attorney’s office for the District of Rhode Island.

U.S. EPA is planning to propose a rule to withdraw the Emission Comparable Fuels (ECF) rule, which became effective on January 20, 2009. The proposal will present the agency’s concerns and request comments from the public after publication in the Federal Register, planned for November 2009. After evaluating the public comments, the EPA will make a decision on whether to repeal the exclusion.

The ECF rule removed regulatory costs by reclassifying certain manufacturing byproducts as non-wastes. ECF is fuel that is produced from a hazardous waste, but which generates emissions when burned in an industrial boiler that are comparable to emissions from burning fuel oil. The materials must also be stored under an elaborate set of requirements. 

The final rule has been criticized for allowing hazardous waste to evade the hazardous waste regulatory system, and also for being difficult to administer. Industry members have also criticized it because of the detailed and prescriptive conditions for reclassification, which they believe will limit the rule’s use.

This move is not wholly unexpected.  Any reasonable person who is knowledgeable in this area of law will tell you, if speaking honestly and perhaps off the record, that this rule was absolutely inconsistent with the basic tenets of environmental law.  It would however allow companies to dispose of vast amounts of hazardous waste and material via burning them in a boiler to recover the energy value of the material.  That might seem like a good idea unless you live, work or happen to be downwind of the boiler’s emission point. 

Another mind numbing “boner” from former U.S. EPA Administrator Steven Johnson going into the trash can.

 U.S. EPA is planning to hold a public meeting to discuss possible revisions to the Definition of Solid Waste (“DSW”) rule in response to an administrative petition asking the agency to reconsider and repeal the rule.  The rule became effective on December 29, 2008. The meeting is planned for the end of June, and a Federal Register notice with the details of the meeting will be published in May.

As promulgated, the DSW rule modified the regulations for recycling hazardous secondary materials to encourage the recycling of certain materials to help conserve resources. The rule includes conditions designed to ensure that the recycling of the materials is protective of human health and the environment.

The rule also takes into account a series of opinions in the U.S. Court of Appeals for the D.C. Circuit on the meaning of the term “discard,” which forms the basis of the definition of solid waste.

Since publication of the DSW rule, the Sierra Club has raised concerns about the effectiveness and protectiveness of the rule and has requested EPA stay the rule in an administrative petition. In addition, the Sierra Club and the American Petroleum Institute have filed judicial petitions for review in the U.S. Court of Appeals for the D.C. Circuit. Various industry groups have also filed letters opposing the Sierra Club’s administrative petition.

EPA expects that stakeholders’ input at the public meeting will assist the agency in deciding whether to make revisions to the rule and how such revisions would further ensure that the rule appropriately and safely encourages resource conservation for those hazardous secondary materials that are conditionally excluded.

The Federal Register notice announcing the meeting will raise specific questions for consideration, particularly related to reclamation that is not under the control of the generator. Any revisions to the rule would be made through the full public rulemaking process.

Invista will pay a $1.7 million civil penalty and spend up to an estimated $500 million to correct self-reported environmental violations discovered at facilities in seven states. The company disclosed more than 680 violations of water, air, hazardous waste, emergency planning and preparedness, and pesticide regulations to EPA after auditing 12 facilities it acquired from DuPont in 2004.

Invista is one of the world’s largest integrated producers of polymers and fibers, primarily for nylon, spandex and polyester applications. The company delivers exceptional value for customers through market insight, innovative products, and a powerful portfolio of some of the most recognized trademarks in industries in which it operates. As a subsidiary of privately owned Koch Industries, Inc., Invista operates in more than 20 countries across North America, South America, Europe, and the Asia-Pacific region.  Invista is a multi-national manufacturer of a wide range of polymer-based fibers, including Lycra, Stainmaster, and Coolmax.

The settlement resolves violations disclosed under Invista’s corporate audit agreement with EPA. Invista conducted 45 separate audits of environmental practices and compliance at facilities located in Seaford, Del.; Athens, Calhoun, and Dalton, Ga.; Kinston, N.C.; Camden, S.C.; Chattanooga, Tenn.; LaPorte, Orange, and Victoria, Texas; and Martinsville and Waynesboro, Va.
 
This is the largest settlement under EPA’s audit policy, which was launched in 1995. The policy provides incentives to companies that voluntarily discover, promptly disclose, and expeditiously correct environmental violations. The companies must also take steps to prevent future violations. EPA may reduce or waive penalties for certain violations if the facility meets the conditions of the policy. Consistent with the audit policy, EPA waived a large portion of the penalty in this case.

The states of Delaware and South Carolina, and the Chattanooga-Hamilton County Air Pollution Control Board in Tennessee have also joined in today’s consent decree and will share portions of the civil penalty with EPA.  The consent decree, lodged in the U.S. District Court for the District of Delaware, is subject to a 30-day public comment period and approval by the federal court.  For more information on the settlement: http://www.epa.gov/compliance/resources/cases/civil/mm/invista.html

Environmental groups filed suit against U.S. EPA in the U.S. Court of Appeals for the D.C. Circuit over a Bush-era rule that exempts some hazardous wastes burned as industrial boiler fuel from Resource Conservation and Recovery Act requirements. The Rule is the Comparable Fuel Exemption and EPA finalized the Rule on December 19, 2008. 

The new Rule created a class of RCRA-exempt wastes dubbed “emission-comparable fuel” (“ECF”) that can be burned in industrial boilers if the emissions are comparable to those from burning fuel oil.  The rule allows certain facilities to burn hazardous waste without a hazardous waste air permit.  Burning the hazardous waste substantially decreases the disposal of costs of such wastes for large facilities, such as oil refineries. 

I, for one, do not want to live downwind of a large facility burning hazardous waste as a fuel source for a boiler.  Moreover, I can think of no rational, reasonable facility which would be willing to burn hazardous waste as a fuel source for a boiler, if the company had to obtain and comply with a hazardous waste air permit.   That result tells you something.

EPA justified the Rule by stating that it has discretion to classify such material as a fuel product, and not as a waste.   Unlike the Bush-era EPA, I have grave doubts that this agency action will stand judicial review under the Clean Air Act and RCRA. 

Did you know that on June 12, 2008, Judge Thomas B. Russell of the Western District of Kentucky entered the Consent Decree in United States v. Rohm and Haas Chemicals, LLC.  The Consent Decree resolves alleged violations of the Clean Air Act, Resource Conservation and Recovery Act, Emergency Planning and Community Right-to-Know Act, and the Comprehensive Environmental Response, Compensation and Liability Act, at the Company’s Louisville facility. 

Rohm and Haas’ multiple violations of environmental law stemmed from an EPA and National Enforcement Investigations Center inspection at the facility in 2005.  As part of the Consent Decree, the company will pay a civil penalty of $35,975 and perform two supplemental environmental projects (SEPs) costing at least $133,671.  One project is a pollution reduction project and the other is an emergency planning and preparedness SEP.

U.S. Environmental Protection Agency (“EPA”) issued a final rule revising the current definition of “solid waste” under the Resource Conservation and Recovery Act (RCRA) in October 2008.  The agency published the new rule in the Federal Register on October 30, 2008 (73 Fed. Reg. 64668) and it will become legally effective on December 29, 2008.

The new rule excludes from the definition of “solid waste” certain hazardous secondary materials (“HSM”) that are being recycled by reclamation.  Thus, the rule will prevent EPA from regulating HSM, as a hazardous waste, if the material is being legitimately recycled. 

HSM are defined by the EPA as materials which would be hazardous wastes if discarded.  The final rule makes four principal regulatory changes: 

1. HSMs that are generated and legitimately reclaimed under the control of the generator are no longer considered to be solid wastes; 
2. Under certain conditions, HSMs that are generated and transferred to another company for     legitimate reclamation are no longer considered to be solid wastes; 
3. Prior EPA guidance on criteria to be used in determining the legitimacy of recycling are codified into regulations; and  
4. The new rule creates a voluntary petition process to permit the exclusion of HSMs by either the EPA or an authorized state on a case-by-case basis. 

To many, the new rule will reduce some red-tape for generators and recyclers of HSM.  The rule may also give birth to additional recycling of HSMs as a viable option to disposal of such material.  On the other hand, others believe that the new rule will simply give new meaning to term “sham recycling.” This latter view is focused on waste management activities at smaller sized companies that generate HSM. 

The jury will remain out for some time on deciding whether this rule helps or hurts environmental protection.  Let’s give the new rule some time before we make up our minds on recycling of HSMs.

EPA recently issued a final rule under the Resource Conservation and Recovery Act (RCRA) regarding reclamation of hazardous secondary materials via recycling.  The new rule deregulates hazardous wastes that can be reclaimed. The rule excludes regulation of materials from RCRA that are:

• generated and legitimately reclaimed under the control of the generator;
• generated and transferred to another company for legitimate reclamation under specific conditions; or
• determined by EPA or an authorized state to be non-wastes on a case-by-case basis via a petition process.

The rule also contains a provision to determine which recycling activities are legitimate under the new exclusions and non-waste determinations. These exclusions are not available for materials that are considered inherently waste-like, used in a manner constituting disposal, or burned for energy recovery.

The rule contains a provision to determine which recycling activities are legitimate under the new exclusions and non-waste determinations.  This provision ensures that only authentic recycling, and not treatment or disposal under the guise of recycling, receives the benefits of these streamlined regulations.

In order to be legitimately recycled under these exclusions, the hazardous secondary material (1) must provide a useful contribution to the recycling process; and (2) the recycling must make a valuable new intermediate or final product. Two additional factors must also be taken into account: (1) whether the recycled material is managed as a valuable product; and (2) whether the recycled product contains toxic constituents at significantly greater levels than a non-recycled product made from virgin materials.

These exclusions are not available for materials that are: (1) considered inherently waste-like; (2) used in a manner constituting disposal; or (3) burned for energy recovery. The restrictions for the exclusions in this final rule are substantially similar to those contained in the supplemental proposal published on March 26, 2007 (72 FR 14172) with certain modifications regarding:

• Reporting and recordkeeping;
• Reasonable efforts required of generators to ensure that their hazardous secondary materials are safely and legitimately recycled;
• Intermediate facilities storing hazardous secondary materials for more than 10 days are eligible under the transfer-based exclusion; and
• Tailoring the financial assurance requirements to intermediate facilities and reclaimers of hazardous secondary materials.   

EPA estimates that about 5,600 facilities handling approximately 1.5 million tons of hazardous secondary materials annually may be impacted by this rule. The activities most affected are metals and spent solvent recycling.  To read this rule: epa.gov/epawaste/hazard/dsw/rulemaking.htm