Monthly Archives: July 2009

Have you considered FESOP?

air pollution8If your Potential to Emit (PTE) air emission amount puts you over the threshold for a Title V permit, You should think seriously about getting a FESOP instead.

FESOP stands for Federally Enforceable State Operating Permit. To get a FESOP, you go to your state agency and agree to certain voluntary restrictions on your operation in exchange for opting out of Title V. You basically reduce your PTE level by self-imposing restrictions on your operation. For example, you may tell the state agency that you will only operate two shifts a day and 50 weeks a year. By using this operating scenario to calculate your PTE (instead of the usual 24/7/365 formula for PTE), you may fall below the threshold that would require you to get a federal Title V permit.

Or you may tell the agency that you will only use certain type of solvents or paints that contain much lower levels of VOC in your operation in order to reduce yor PTE to below the Title V threshold.

The state will then issue you a state operating permit with your self-imposed restrictions (hours, usages, products or combination) as conditions. If you violate these conditions, the federal government (EPA) has the right to take enforcement action against you even though what you have is a state operating permit – hence the term “federally enforceable”. The reason is that those restrictions are the underlying reasons why you are able to avoid Title V.

So if you are going to get a FESOP, you want to make sure that you WILL be able to meet your own operating restrictions.

Definition of solid waste under RCRA

drum storage 4Under the Resource Conservation and Recovery Act (RCRA), one of the criteria for a material to be classified as a RCRA solid waste is that it must be “discarded”. Only RCRA solid waste can become hazardous waste.

On October 30, 2008, EPA finalized a new definition of solid waste. It states in 40 CFR 261.2(a)(2)(ii) that a hazardous secondary material that is being generated and reclaimed “under the control of the generator” is not considered to be a discarded material. Therefore it is not a RCRA solid waste and cannot become a hazardous waste. This final rule became effective on December 29, 2008.

What that means is that – under federal rule – if you have a spent solvent that you are reclaiming on-site through the use of a distillation unit, the spent solvent (a hazardous secondary material – ignitable) does not need to be managed as a hazardous waste while waiting to be reclaimed.

It is important to note that this new rule does not take effect in RCRA-authorized states unless and until the states adopt it. 

So check with your state agency.

The rather tricky issue of “point of generation”

327773177_3d24daef20Questions often asked at manufacturing facilities are” “Is this a waste?” and “Is the waste a hazardous waste?”

The answer to the first question hinges on the issue of point of generation (POG). A material becomes a waste when the owner or operator decides that it cannot be used for its original intended purpose. A good example would be a can of paint. As long as there is a legitimate use for the paint and the paint is still usable as a paint, it is not a waste. So if you can find some one to use the paint in a legitmate manner, you won’t have to worry about it.  But if you decide that you want to dispose of it, it becomes a waste. Another example would be a jar of pure chemical on your laboratory shelf. If the shell life of that chemical has been exceeded (it cannot be used for its original intended purpose), it becomes a waste.

Another example: You may have a very hazardous chemical in a chemical reactor where you are brewing your product, you do not have a waste as long as that hazardous chemical stays inside the reactor as part of your manufacturing process. But once you take that hazardous chemical out of the reactor and you have no further use for it, you will have generated a waste at that point. That’s you POG.

Once you have a waste, then you have to determine if it is hazardous. Does it exhibit any of the four hazardous waste characteristics (ignitability, corrosivity, reactivity and toxicity)? Has the waste been listed by EPA?

More on annual refresher of hazardous waste training

classroom doubletreeFederal regulation 40 CFR 265.16(c) requires “facility personnel must take part in an annual review of the initial training”. Does it mean that your employees must do the annual review (or refresher) every 12 months?

What if you are a large company with thousands of employees that require such “annual” review? Is there some flexibility?

Pratt and Whitney was such a company. It had established a RCRA training program for over 15,000 employees. It required each employee to get the annual review within a 90-day period before his anniversary date. That means the longest possible time period between training would be one year plus 90 days (15 months).

On May 21, 1997, the company wrote to EPA to seek gudiance and concurrence that such training schedule would satisfy EPA’s “annual review” requirement. The agency wrote back and told the company that since each employee would receive 4 annual reviews over a 4-year period, the training schedule met the requirements under 40 CFR 265.16(c). The memo from EPA is on file at RCRA Online.

While giving the company its concurance, EPA went on to caution the company to check with state agencies since some of them may have a different interpretation of “annual review”.


Training your employees to handle hazardous waste

DRUMS_STACKFederal regulations require you to train your employees in accordance with their specific job function. Make sure you clearly define these job responsibilities in the employees’ job description. New employees must receive training within 6 months and they cannot work with hazardous wastes unsupervised before receiving their initial training.  All employees handling hazardous wastes must also receive annual refresher. 

The regulations do not specify the training content or the duration of training. However, 40 CFR 265.16(a)(2) requires you to provide training on waste management procedures and emergency response. Anyone who works in or adjacent to areas where hazardous wastes are generatted, handled or stored must still be trained to be familiar with basic emergency procedures.

40 CFR 265.16(e) requires you to keep the training records for at least 3 years from the time an employee last worked at the facility.

Why you should do an environmental audit before leasing a place

If your company is thinkingof leasing a facility, you should always do a baseline environmental audit of the place. What you want to do is to identify any pre-existing environmental contamination at the site before you occupy it. There are many consultants who are qualified to do Phase I and Phase II environmental assessment.  Once you have identified any pre-existing contamination, you include the findings in your lease so that when you return the site to the landlord, you will only need to return it at the baseline condition.

This is the best (and possibly) only defense you have against a landlord who falsely claims that the property (previously contaminated by the tenant before you) you have been occupying for the past ten years was pristine when you moved in.

That’s what happened to a large corporation in California. It moved into a facility without doing a baseline environmental assessment. The manager there was trying to save $20,000. When it completed its lease ten years later, the landlord claimed that the company had contaminated his pristine property and demanded that it be cleaned iStock_000002586110XSmallup. As it turned, it was a previous tenant that had dumped toxic solvents into an underground tank that subsequently leaked. Without the defense of a baseline assessment, the company had to remove the leaking underground storage tank and clean up the soil contamination. It also had to remove some asbestos containing material from the site. The total cleanup cost to the company was close to $600,000. 

All of this could have been avoided if the company had spent $20,000 ten years earlier.

That was one happy landlord. He saved $600,000!

To our readers

coffee together-iStock_000006177041Do you have an environmental topic that you would like me to discuss here?

Are you looking for a solution to an environmental issue at your facility? 

You can post a question/comment here or email me in private. If we post your issue here, it will be in a generic form. Your identity will not be revealed without your permission.

Environmental audits

ASBESTOSThere are two types of environmental audits.

The most common ones are the compliance audits. This is where you go and check to see if you are in compliance with the various environmental regulations. You often do this with a checklist. You are asking the question: “Is everything OK today?” This type of audit gives you a snap shot of your compliance status on the day you perform it. It does not tell you anything about what happens a week or a month later.

With the checklist, you are essentially asking yes/no questions. For example, you are asking “Is the accumulation start date clearly marked on the hazardous waste label?” There can be only two answers. It is either “yes, it is there” or “no, it is not there”.

The second type of audit is the environmental management audit. Here you do NOT ask  yes/no questions. You ask open-ended questions. For example, you would ask the person responsible for the waste accumulation area this type of question: “When do you put the accumulation start date on the label?” He cannot answer yes or no to your question. If he answers “when I ship the container out”, that would be the wrong answer. The correct answer is “when the first drop of waste goes into the container in the storage area”.

When you ask open-ended questions like the example above, you are trying to determine the level of understanding and knowledge of  the person who is responsible for managing the wastes.  You are not asking the “is anything wrong here today” question.  You are not taking a snap shot. You are trying to determine how that person will manaHandshake and teamworkge an environmental problem when it comes up a month later.

In a compliance audit, you are looking at physical things like evidence of spills, records, labels, etc. In a management audit, you are looking at people skills.

By the way, a tell tale sign of future problem is when you ask someone “why do you do it this way” and the reply is “I am not sure but we have always done it this way.”

It is all in how you ask the right questions.

Why don’t we wash our rental cars?

car wash pictureHave you ever wondered why we never wash our rental cars before we return them to the rental company?

Because we don’t own the rental cars!

The same goes with writing environmental plans. If the employees who are responsible for implementing the plan (SPCC, stormwater, RCRA contingency, etc.) have not been involved in the development and preparation of the plans in any way, they are not going to have ownership of the plans and they are not likely to implement them.

Remember: Many of these plans (especially SPCC) are perfromance-based. That means if they are not implemented as written, you can end up with a violation.

Get your employees involved in some fashion before you finalize your palns. Have them review the draft. Get them involved.

The issue of waste residues in your “empty”containers

Under 40 CFR 261.7(b)(1), a container (equal to or less than 110 gallons capacity) that used to contain non-acute hazardous wastes is considered to be “RCRA empty” if all wastes have been removed using “commonly employed practices” AND there is no more than 3 percent by weight of the total capacity of the container left OR no more than one inch of residue left on the bottom of the container.

The waste residues in these “RCRA empty” containers are exempt from RCRA regulations due to their small quantities.

empty containers However, the container itself is not exempt. You still need to determine if the container itself exhibits one or more of the four RCRA characteristics (ignitability, corrosivity, reactivity and toxicity).