The following information is provided as an update to our recent blog on the proposed revisions to the CCR Rules.
EPA Acting Administrator Wheeler signed the Final CCR Rule Phase 1, Part 1 on July 17, 2018. The rule will become effective 30 days after publication in the Federal Register. The main points of the rule include:
- Addition of risk-based groundwater protection standards (GWPS) based on regional screening levels (RSLs) for cobalt, molybdenum, lead, and lithium – the four Appendix IV constituents that do not have Maximum Contaminant Levels (MCLs),
- Extension of the deadline for the mandatory closure of unlined surface impoundments that exceed GWPS and facilities that do not meet the location restriction for placement above the uppermost aquifer, and
- Provision for states with approved CCR permit programs under the Water Infrastructure Improvements for the Nation (WIIN) Act or EPA to use alternative performance standards, including: (1) suspending groundwater monitoring requirements if there is no potential for migration of hazardous constituents to the uppermost aquifer, and (2) issue technical certifications.
For those interested in exploring this topic further:
A prepublication copy of the rule is available at https://www.federalregister.gov/documents/2018/07/30/2018-16262/hazardous-and-solid-waste-management-system-disposal-of-coal-combustion-residuals-from-electric
CEC’s previous blog, Proposed Revisions to the CCR Rules: https://blog.cecinc.com/2018/05/18/proposed-revisions-to-the-ccr-rules/
If you have questions regarding U.S. EPA’s proposed changes to the CCR Rules, please contact: Roy Stanley, C.P.G. (email@example.com; 888-598-6808 ext. 3316) in our Columbus office, or Brianne Hastings, P.G. (firstname.lastname@example.org; 800-365-2324 ext. 1117) or Mark Orzechowski, P.G. (email@example.com, 800-365-2324 ext. 1152) in our Pittsburgh office.
Proposed changes to the U.S. Environmental Protection Agency (U.S. EPA) CCR Rules in 40 CFR 257 (Federal Register/Vol. 83, No. 51/Thursday, March 15, 2018/Proposed Rules) could have a significant impact on coal-fired power plants, especially with regard to groundwater monitoring requirements and close-in-place capping.
BACKGROUND AND KEY POINTS
- The rule changes are proposed in response to
- Judicial Remand, April 18, 2016, resolution of Utility Solid Waste Activity Group (USWAG) et al. v. U.S. EPA no. 15-1219, D.C. Circuit Court); and
- The Water Infrastructure Improvements for the Nation (WIIN) Act enacted in December 2016.
- Additional proposed rule changes are in response to comments to U.S. EPA received after the final CCR rule date.
- Proposed rules address four provisions of the final rule that were remanded on June 14, 2016.
- U.S. EPA presently intends to take final action on proposed rule amendments in response to Judicial Remand by June 2019.
- U.S. EPA also proposes seven provisions that establish alternative performance standards for CCR units located in states that have approved CCR permit programs (identified as “participating states,” such as Oklahoma) under the WIIN Act.
- If not in a participating state, U.S. EPA will administer a permit program for CCR units.
- Also, additional proposed changes effect record keeping, notification, and internet posting requirements.
- U.S. EPA is not considering any other comments on other provisions of the final CCR rule under this specific proposal; however, additional revisions may be changed subject to challenge in litigation.
- The comment period for the proposed CCR rule amendments ended on April 30, 2018.
These proposed actions are estimated to result in net cost savings of between $25 million and $76 million per year for the industry. Cost savings are attributable to the proposed amendments against the baseline costs of the 2015 CCR rule.
SUMMARY OF THE U.S. EPA PROPOSED AMENDMENTS
Proposals Associated with Judicial Remand
Four proposed changes:
- Add boron to the list of Appendix IV parameters that trigger corrective action and potentially require CCR unit retrofit or closure.
(Read more detail here)
- Determine the requirement for woody and grass vegetation for slope protection.
(Read more detail here)
- Clarify the type and magnitude of non-groundwater releases requiring facilities to comply with some or all of the corrective action procedures in 40 CFR 257.96-257.98 for cleanup of the release. U.S. EPA is proposing a subset of corrective action procedures for non-groundwater releases that can be completely remediated within 180 days from detection of the release.
(Read more detail here)
- Modification of the alternative closure provisions to allow management of both CCR and non-CCR waste streams under exception for a certified absence of alternate disposal capacity.
(Read more detail here)
Proposals Associated with the WIIN Act
General proposed provisions:
- U.S. EPA is seeking comments on how alternative performance standards can be implemented directly by the facilities, even in states without a permit program, given that U.S. EPA has oversight and enforcement authority.
- U.S. EPA seeks comment on whether to allow participating states the ability to modify the location restrictions on a site-specific basis, and whether changes to the location restriction deadlines are appropriate.
Seven alternative performance standards:
- Allow the use of risk-based groundwater protection standards for Appendix IV constituents with no MCL.
(Read more detail here)
- Allow modification of the corrective action remedy in certain cases.
(Read more detail here)
- Allow the suspension of groundwater monitoring if a no-migration demonstration can be made.
(Read more detail here)
- Establish an alternate schedule to demonstrate compliance with the corrective action remedy.
(Read more detail here)
- Modify the post-closure care period.
(Read more detail here)
- Allow Director of participating states to issue technical certifications, rather than the current certifying engineer requirement.
(Read more detail here)
- Allow the use of CCR during certain closure situations.
(Read more detail here)
If you have questions about any of the above-mentioned details regarding U.S. EPA’s proposed changes to the CCR Rules, please contact one of the blog post authors: Roy Stanley, C.P.G., in our Columbus office (firstname.lastname@example.org; 888-598-6808 ext. 3316) or Brianne Hastings, P.G., in our Pittsburgh office (email@example.com; 800-365-2324 ext. 1117). More information on the proposed changes can be found at the links placed within this post, or by visiting U.S. EPA’s website at https://www.epa.gov/coalash/coal-ash-rule.
The Ohio Environmental Protection Agency (EPA) Division of Materials and Waste Management (DMWM) is in the process of finalizing rules, under OAC 3745-515 (Draft Rules), for the disposal of oil and gas (O&G) production waste, specifically for the receipt, acceptance, processing, handling, management, and disposal of radioactive material, including technologically enhanced naturally occurring radioactive material (TENORM). The official title of the regulation is “Oil and Gas Production Waste Rules,” and a summary of the Draft Rules is as follows:
- Applicable to sanitary landfills and solid waste transfer facilities subject to OAC 3745-27 (municipal solid waste regulations) and 3745-29 (industrial waste regulations).
- Excluded from the Draft Rules are:
- Residual waste landfills;
- O&G production operations (including temporary storage adjacent to point of origination);
- Re-used material from horizontal wells;
- Injection well sites; and
- Material that is not TENORM and has not contacted refined oil-based substances (ROBS).
- If TENORM or ROBS are comingled with other drilling operation material, the mixed material is subject to the Draft Rules.
- The Draft Rules do not limit applicability under Ohio Revised Code (ORC) statutes in Chapters 1509 (O&G), 3734 (solid and hazardous waste), and 3748 (radiation control).
- It should be noted that although Ohio Department of Natural Resources (ODNR) has sole and exclusive authority to regulate the permitting, location, spacing, and related O&G activities in Ohio, Ohio EPA also has regulatory authority for sanitary landfills and solid waste transfer facilities that accept and process O&G production wastes.
- In addition, the Ohio Department of Health (ODH) Bureau of Environmental Health and Radiation Protection (BEHRP) provides guidance for field scanning, sampling, and laboratory testing for Ra-226/228, which Ohio EPA is adopting under the Draft Rules.
- Drilling operation material (DOM) means material that results from drilling operations, including waste substances from exploration, development, stimulation, operations, or plugging, and TENORM associated with an injection well.
- DOM is considered a solid waste.
- Source-separated drill cuttings generated while advancing through the underground source of drinking water are not DOM.
- TENORM is defined by reference to ORC 3748.01 and does not include drill cuttings with de minimus liquids; however, there are additions to the ORC 3748.01 definition, including:
- Used frac sands;
- Tank bottoms;
- Pipe scale;
- Used injection-well filter media; and
- TENORM mixed with other materials.
- For comparison, TENORM defined in ODNR’s Draft O&G Facility Rules also includes seven (7) “add-ons” to the ORC 3748.01 definition that are similar to those proposed by Ohio EPA above.
- Drill cuttings, drilling operation, and horizontal well have the same meaning as the ORC definitions.
- The Draft Rule definitions do not override OAC 3745-500-02 (Ohio EPA General Administration definitions).
INCORPORATED BY REFERENCE
- The “Solid Waste Disposal Facility Radioactive Material Detection Program” (amended June 14, 2016) issued by ODH BEHRP is incorporated by reference.
- Sanitary landfills and solid waste transfer facilities cannot:
- Accept TENORM with Ra-226/228 greater than five (5) pCi/g above background concentration (non-exempt TENORM) without authorization from ODH BEHRP. In Ohio, background concentration is considered to be two (2) pCi/g, making the threshold seven (7) pCi/g.
- Accept DOM that has not been stabilized with material other than Portland cement or quicklime or anther material authorized by ODNR under ORC Chapter 1509.
- Accept DOM that is bulk liquids or sludges without authorization from ODNR under ORC Chapter 1509 and shall not commingle solid waste or any other material not authorized in the Draft Rule during the solidification process.
RESOLUTION OF CONFLICTS AMONG AUTHORITIES
- Compliance with the Draft Rule is required when there is conflict with another authorizing document.
- Compliance with an Order is required when there is conflict with the Draft Rule. Once the Order is terminated or ceased, compliance with the Draft Rule is required.
- The Draft Rule shall not infringe upon ODH BEHRP authority statute, including issuing orders, inspections, and enforcement standards.
PERMIT TO INSTALL (PTI)
- Sanitary landfills and solid waste transfer facilities shall obtain a permit from Ohio EPA to accept and process non-exempt TENORM under the solid waste (OAC 3745-27) and industrial waste (OAC 3745-29) regulations.
- A permit to install (PTI) from Ohio EPA is required prior to construction of sanitary landfills and solid waste transfer facilities to process DOM and/or TENORM.
- Sanitary landfills and solid waste transfer facilities are required to have authorization for DOM transfer or disposal from ODH BEHRP.
- If not accepting DOM upon the effective date of the Draft Rule, a notice of intent to Ohio EPA is required.
- If already accepting DOM, a notice of intent to continue accepting DOM is required within 30 days following the effective date of the Draft Rule.
- Sanitary landfills and solid waste transfer facilities cannot accept non-exempt TENORM until Ohio EPA approves any required modification to the facility PTI.
- Implementation of a written radiation protection and detection program is required.
- Analysis for Ra-226/228 is required for TENORM material.
- A daily log is required documenting the waste type and amount received.
- Leachate will be tested for Ra-226/228 annually.
- Groundwater monitoring wells will be tested for Ra-226/228 semi-annually.
- State disposal fees will be levied on DOM.
PROHIBITED MATERIALS – RADIATION PROTECTION PROGRAM
The radiation protection program shall include:
- Implementation of the written radiation protection plan.
- Monitoring of incoming waste with radiation portal monitors (RPMs).
- Pre-acceptance screening procedures that include:
- Identification of sources;
- Generator profiles;
- Well pad name and location;
- DOM description;
- Processes used to remove fluids and stabilization agents used;
- Procedures for the collection of representative samples;
- Procedures for pre-acceptance screening, acceptance, and record keeping;
- Refusal of material procedures; and
- Detections by RPMs require laboratory testing and must be below non-exempt Ra-226/228 concentrations prior to disposal.
COMMENTS ON THE DRAFT RULES
Ohio EPA is accepting comments from stakeholders regarding the Draft Rules until May 12, 2017. Comments may be submitted to Michelle Mountjoy (firstname.lastname@example.org).
If you have any questions regarding the proposed Draft Rules, please contact Ababu Gelaye at email@example.com or (614) 917-3247, and/or Roy Stanley at firstname.lastname@example.org or (614) 545-1260 in CEC’s Worthington, Ohio, office.
Significant changes are on the way for oil and gas waste management facilities in Ohio with the upcoming Oil and Gas Waste Facilities Rules (Draft Rules, OAC 1501:9-X, revised 12/9/16). Oil and gas waste facilities, as currently defined in the Draft Rules, are operations that store, recycle, treat, or process brine and other waste substances associated with oil and gas exploration and production operations but are not part of well operations that are otherwise permitted by Ohio Department of Natural Resources’ (ODNR’s) Division of Oil and Gas Resources Management (such as a production well or Class II brine disposal well). The purpose of these Draft Rules will be to prevent injury or damage to public health, safety, and the environment and to ensure that brine and other waste substances are properly managed and disposed. The Draft Rules include definitions for oil and gas waste substances, treatment, recycling, storage, repurposing, stabilization, and processing. While the statutory definition of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) is retained, the Draft Rules appear to expand TENORM materials to include seven (7) specific waste types. The Draft Rules also require that the permit applicant shall be responsible for all utility connections of the facility. ODNR issued the Draft Rules asking that written comments from the industry be submitted by January 20, 2017, and held an industry meeting on January 30, 2017.
Until the Draft Rules are finalized, such facilities have been granted temporary authorization via a Chief’s Order from ODNR. At this point, it is not known as to when these Draft Rules will be final and effective; however, oil and gas waste facilities that currently have a Chief’s Order will be required to re-submit a permit to construct and/or a permit to operate once the Oil and Gas Waste Facilities Rules are promulgated. Constructed/operating facilities will be required to meet the location restrictions and construction specifications in the final rules.
Are the Draft Rules Requirements Similar to the Ohio Horizontal Well Site Construction Rule?
The Draft Rules are very similar to the Ohio Horizontal Well Site Construction Rule with respect to surface location and siting criteria, permit application/form and supporting documents, review procedures, construction activities, permit modifications, and certification. A significant difference is the definition of secondary containment, including tanks, vessels, berms, dikes, pipes, liners, vaults, curbing, drip pans, sumps, etc. The definition of material modification is equivalent to the definition in the Ohio Horizontal Well Site Construction Rule with the exception of substituting the name “Oil and Gas Waste Facility” for “Horizontal Well Site” and “Oil and Gas Waste Facility Boundary” with “Well Site Boundary.” The Draft Rules outline processes for permit modifications, requirements during construction activities, and construction certification, all of which are similar to requirements in the Ohio Horizontal Well Site Construction Rule.
The following exhibits will be required with the applications:
- Design and construction drawings,
- Containment integrity document,
- Emergency release conveyance map,
- Stormwater hydraulic report,
- Sediment and erosion control plan,
- Geotechnical report/plan,
- Oil and gas waste facility boundary GIS files, and
- Dust control plan.
These exhibit requirements are very similar to the requirements stipulated under the Ohio Horizontal Well Site Construction Rule, with the exception of the Containment Integrity requirement in the Draft Rules.
What Does the Oil and Gas Waste Facility Permitting Process Look Like Under the Draft Rules?
The permit application process will require the completion of a Permit to Construct (PTC) and a Permit to Operate (PTO). The Draft Rules state that the permits are not transferable and are issued only for a specific location. Thus, mobile facilities cannot be permitted in the current version of the Draft Rules. Application forms, prescribed by ODNR, will require specific facility and/or owner/industry information. Completeness and pre-construction site review time frames are also outlined, and those may take between fifty (50) and seventy (70) business days under normal circumstances.
One of the most contentious components of the Draft Rules is the public notice requirement once the permit application is deemed complete. Written objections to the permit application, if deemed relevant by ODNR, will require a public hearing. The Draft Rules stipulate that ODNR’s Division of Oil and Gas Resources Management provide public notice of the application by posting the application on the division’s website. The question regarding this public notice requirement has to do with its timing and/or its order with respect to the Technical Review Procedure (i.e., whether it is appropriate for the public notice to happen before Technical Review is completed).
A pre-construction site review will be completed by ODNR within fifteen (15) days of notification of a complete PTC application. ODNR is required to complete its technical review of the PTC application within 60 days following the completion of the public notice process. The PTO application will be reviewed within 60 days following the pre-construction site review.
The permittee shall notify ODNR at least forty-eight (48) hours prior to commencement of construction, following permit issuance. Red-line drawings must be kept on site to document deviations from the approved plans, and inspection and maintenance activities must be performed to demonstrate compliance.
The Draft Rules outline processes for addressing permit modifications, requirements during construction activities, and requirements for certification of the constructed site to be operated, similar to what are included in the Ohio Horizontal Well Site Construction Rule.
No later than two (2) years after the effective date of the PTC, the permittee is required to submit a signed and sealed certification from the Ohio-registered professional engineer to ODNR, certifying that the oil and gas waste facility was constructed in reasonably close conformity with the approved application and documented modifications.
What are the Impacts and Implications?
Obviously, finalization and implementation of the Draft Rules will result in higher costs for permitting, construction, and operation of oil and gas waste facilities in Ohio due to increased regulatory requirements.
Oil and gas waste facility owners/operators will need to plan longer lead-times for site selection, plan development, field investigations, and compliance with the permitting, construction, and operation requirements. Increased costs for oil and gas waste facility permits, construction, and operations will likely trickle down through the Exploration and Production industry.
Clear and timely communication and clarifications to ODNR inquiries, along with well-structured and assembled plan sets and application materials will all be critical to navigating the permitting and review process and in securing permits to construct and operate oil and gas waste facilities.
Implementation of an effective construction quality assurance and quality control (QA/QC) program will be critical for facility construction in accordance with the permit conditions, site design plans, and specifications. The Draft Rules also require that all modifications (material or application) are well documented and communicated with ODNR.
Critical Items Requiring Further Consideration:
- The baseline environmental assessment, containment integrity, dust control plan, and geotechnical investigation requirements are more prescriptive than requirements in West Virginia and Pennsylvania rules for similar facilities.
- There is no distinction in the factors of safety requirements for slope stability between cut slope and fill slope. The Draft Rules require the same factor of safety of 1.5 for both types of slopes and a factor of safety for bearing capacity of not less than 3.0. These restrictive factors of safety and bearing capacity requirements are likely to increase the effort and costs for site selection, limiting the options for site development.
- The application and technical review procedures will extend the time frame for permitting, design, construction, and operation of oil and gas waste facilities. The overall permitting process could range from ten (10) weeks to as many as nineteen (19) weeks, depending on relevant objections during the public notification process.
Promulgation and execution of Oil and Gas Waste Facilities Rules will result in additional procedures and requirements for the Oil and Gas industry. The rules will not address all site-specific design, construction, and operational issues; thus, anticipation of permitting issues and optional solutions must be effectively communicated to the owner for a complete and compliant permit application. The planning and permitting process will require assembling effective and well-coordinated environmental, ecological, civil/geotechnical engineering, and land surveying teams. During the ODNR rule-making process, CEC will continue to be actively involved, representing industry and stakeholder concerns.
If you have any questions or concerns regarding how these Draft Rules may affect your business, please contact Ababu Gelaye at email@example.com or (614) 310-2079, or Roy Stanley at firstname.lastname@example.org or (614) 425-6324.
Accelerated Remediation Catalysis (ARC) – An Emerging Water Treatment Technology for the Treatment of a Wide Range of Dissolved Phase Organic and Inorganic Contaminants
The Accelerated Remediation Catalysis (ARC) system is a process that can be applied to reduction or oxidation. For reduction, hydrogen gas and an inexpensive, proprietary catalyst are used to perform a chemical reduction of appropriate contaminants. The application of shear forces that can be achieved by using certain pumps is also a feature that dramatically accelerates reaction times.
On the reduction side, there is data supporting the degradation of 1,4-dioxane (1,4-D), perfluorocarbons (PFCs), chlorinated hydrocarbons, and oxyanions (nitrate and perchlorate). With respect to metals and metalloids such as selenium, these species are precipitated and collected for disposal. ARC is also applicable to oxidative processes for appropriate organics like petroleum hydrocarbons, as well as metals/metalloids that precipitate under high redox conditions. In this application, the oxygen is provided by dilute hydrogen peroxide or peracetic acid with a different catalyst.
To help reduce start-up costs, the ex-situ process uses common tankage, pumps, valves, and process controls that can be obtained from standard vendors. If the process handles low levels of contaminants, it can be constructed of common thermoplastics such as polyvinyl chloride (PVC), polyethylene, and fiberglass.
ARC can operate in either batch or continuous mode. In batch mode, the reaction tank is filled at start-up and the total reaction time is allowed to reach the predetermined level to assure destruction of the constituents of concern (COCs). After this point has been achieved, the process switches to continuous mode, and the reaction tank functions as a single-stage plug flow reactor. The process can be made to be continuous at start-up by simply filling the reactor tank with clean water. The overall retention time for completion of most reactions has been on the order of 10 to 15 minutes. Using reduction, hydrogen used in the catalyst vessel is generated electrochemically at the site, reducing the need to handle compressed gas. Depending on the COC, the reaction will either cause manageable gas evolution, or precipitate out of the water and be recovered by a variety of methods. The insoluble catalyst can be recovered by filtration and recycled back to the reactor vessel.
Case studies where ARC has been used for chemical reduction include:
- The conversion of 1,4-dioxane to ethanol. Water with 100 μg/l of 1,4-dioxane was reduced to <1 μg/l.
- The complete destruction of perfluorocarbons to non-detectable concentrations with a fluorine residue of low concentration, as the initial concentrations of perfluorocarbons are generally low.
- Chlorinated ethenes are easily reduced to ethene and ethane.
- Trihalomethanes have been reduced from a typical 80 μg/l level to <10 μg/l in 10-15 minutes.
- Perchlorate levels as high as 100 mg/l are reduced to chloride.
- Nitrate is reduced to nitrogen gas.
- Selenium in the form of selenate can be reduced to selenite and removed as a precipitate. Selenate was reduced from 200 mg/l to <1 mg/l.
- Chlorobenzene at ppm levels is reduced to benzene that is then collected on the low-cost catalyst.
The ARC system can be designed for a wide range of process flow rates. Design of the system is only limited by the required retention time for the reaction. In essence, the system was brought into focus because of the emerging contaminants issue, and it is applied to pump-and-treat systems. This is important because the nature of 1,4-dioxane and PFCs makes in-situ treatment challenging. It is expected that there will be both an increase in the use of pump-and-treat systems and a need for more efficient water treatment technologies, especially since conventional methods of treatment (such as those that use carbon) are limited.
Additionally, because of the low concentrations of reactants in the process, there is typically no detectable heat gain in the reaction vessel. Therefore, cooling of the process is generally not required prior to releasing the treated effluent. Then there are other applications in traditional wastewater treatment, such as removal of selenium from scrub water at coal-fired power plants. The ARC system’s inherent simplicity allows it to be easily scaled so that dealing with the large flow rates encountered in industrial settings is feasible. While the endpoint for ARC treated water is generally to be discharged, a supplementary feature called Advanced Regenerative Process (ARP) can be added as a further polishing step so that beneficial reuse, including human consumption, is an option.
ARC targets those applications where more complicated and expensive systems, such as conventional Advanced Oxidation Processes (AOP), are being used. The chemical usage, energy, and safety features of AOP systems, combined with their operational footprint, suggest they will eventually be replaced by better remedial options like ARC. There are other developing technologies that have similar objectives to displace AOP systems, such as resin-based operations, but ARC presents distinct advantages in cost, efficacy, physical layout, and scalability.
For additional information, please contact Chris Hortert at (800) 365-2324 (email@example.com); Steve Koenigsberg at (949) 262-3265 (firstname.lastname@example.org); or Thom Zugates at (602) 644-2163 (email@example.com).
Under the final rule defining solid waste, published on January 13, 2015, EPA eliminated provisions in the 2008 Bush administration rule that provided flexibility allowing the return of hazardous secondary materials to the economic mainstream. In settling a lawsuit with the Sierra Club, EPA agreed to review the 2008 changes. As a consequence of this review, EPA found human health risk increased disproportionately for minority and low income communities.
Key changes include the following:
To verify that a recycling operation is legitimate and not a sham, the recycler must:
- Prove that the hazardous secondary material makes a useful contribution;
- Demonstrate that the recycling process produces a valuable final or intermediate product;
- Manage the hazardous secondary materials as a valuable commodity; and
- Confirm that the product is comparable to analogous products of virgin materials.
In the 2008 DSW Rule, the first two factors were mandatory, while the third and fourth were to be considered.
- The 2008 generator-control conditional exclusion now requires:
- Documentation of legitimate recycling;
- Proper containment;
- Record keeping for generator-controlled recycling options; and
- Emergency preparedness and response provisions.
- Transfer-based exclusions have been eliminated. These exclusions required that materials be managed by RCRA permitted facilities or “verified recyclers” who obtain a State-issued variance from RCRA. Under the new rules, a facility applying for a variance as a verified recycler must:
- Demonstrate that legitimate recycling is being conducted;
- Maintain necessary equipment and personnel;
- Implement an emergency preparedness and response plan;
- Provide financial assurances;
- Assess risk to the local community from potential releases and cumulative risk from area-wide facilities; and
- Provide public notice and opportunity to comment.
- Variances and non-waste determinations must be renewed each ten years and biennial re-notifications must be submitted.
- An exclusion was added for high-value solvent remanufacturing that requires notification, a remanufacturing plan, tracking, containment, and no speculative accumulation.
The effective date for the rule is 180 days after publication in the Federal Register (January 13, 2015). For States with delegated RCRA authority, the rule will not be effective unless and until adopted by the State. The more stringent portions of the rule (e.g., the new legitimacy criteria) will have to be adopted within one to three years, but the less stringent portions of the rule (such as the new remanufacturing exclusion) are optional.
As of the effective date, facilities operating under the 2008 generator-controlled exclusion must comply with the revised standards, and facilities operating under the 2008 transfer-based exclusion must meet the terms of the verified recycler exclusion.
According to comments on the docket from the regulated community, restrictions will materially curtail recycling. Associations representing affected industries have expressed their concern:
The rule “provides insufficient incentives to promote recycling of secondary materials and maintains many onerous and unnecessary requirements; verified recycler requirements could prove too onerous to encourage additional facilities to recycle secondary materials.” (www.IPC.org)
The rule will “impose additional burdens when there is no evidence that the existing recycling regulations are creating environmental problems” and “will discourage recycling, increase the land filling and incineration of otherwise useful secondary materials, and increase the use of natural resources and energy.” (www.NAM.org)
The Sierra Club had a different view:
“The EPA conducted and included findings from a thorough environmental justice analysis that found loopholes in the DSW rule significantly and disproportionately affected low-income communities and communities of color. While the rule closes some loopholes to control hazardous waste recycling, other sizable gaps remain, including the lack of any enforceable standard for the containment of hazardous waste and the lack of standards for facilities that treat and dispose of similar waste — the source of much of the contamination that has previously been traced to DSW rule loopholes.”
Potential further legal or Congressional action is unclear at this time.
If you have any questions about the proposed Definition of Solid Waste rule and whether your facility may be impacted by these regulations, please contact Beth Schwartz at firstname.lastname@example.org, or Donna Oswald at email@example.com or call them at 888-963-6026.
Update 2/17/2014: In addition to regulatory initiatives by the City of Chicago and the IEPA, the Illinois Attorney General’s office has introduced, HB 5939 (Currie, D-Chicago), which amends the Environmental Protection Act, creating a new title in the law concerning the regulation of coal and coke storage, processing, and transloading. The bill provides for minimum setbacks for coal and coke facilities, sets limits for quantities of fugitive dust permitted from facilities, establishes specified requirements for storage of coal and coke products, requires permits for construction and operation of facilities, regulates the loading and unloading, paving, and cleaning of facilities. The bill also requires monitoring and testing, record keeping, and reporting to the IEPA. View the bill here.
Update: On January 23, 2014, the IPCB met and ruled 4-0 that IEPA had not demonstrated the filing qualified for treatment under Emergency Rule making provisions of IAPA and the Environmental Protection Act. The Board did not further comment or clarify the bases for their determination or what would have been acceptable to them. The Chairperson voiced a willingness to pursue with the proposal under General Rule making.
The IEPA response to comments did not attempt to justify the request by citing precedents from prior IPCB and IACA cases. The footnote of their Statement of Reasons noted that there is no requirement for the Board or IEPA present a Statement of Reasons. They further noted that regulations for emergency rule makings are unclear and do not appear to be tailored to the purpose and intent of an emergency rule making. The IEPA Statement of Reasons ignored several commenters who cited precedents for acceptance and denial of emergency rule makings.
In the morning public comment session, comments were submitted and summarized by the Illinois Chamber on behave of a coalition of industry trade associations, KCBX and the Environmental Law Policy Center.
Newly issued Illinois emergency regulations will require total enclosure of all coke and coal storage, handling, and transfer activities. These emergency regulations call for plans to be due in 45 days and construction completed within two years. Regulations will also address dust suppression, storm water controls, elimination of fugitives, street sweeping, setbacks, height restrictions, record keeping and reporting. These requirements may cause costs to rise to the point of forcing closings of some coke and coal storage and handling activities.
In the dry heat of August 2013, fugitive coke dust from bulk storage along Illinois’ Calumet River migrated into residential neighborhoods and led to complaints. The Chicago Tribune published a series of articles in the fall and environmental groups found traction criticizing petroleum refiners, Canadian crude and byproduct coke. By December, the City adapted petroleum coke and coal storage regulations from the South Coast Air Quality Management District and extended them to ores. The day of the City’s public meeting the Governor and IEPA Director Lisa Bonnett visited the area and announced emergency regulations affecting all coal and coke storage and handling operations within Illinois. Proposed regulations will be filed this week and will be subject to public comment and approval by the Illinois Pollution Control Board, but some go into effect immediately upon filing. Major time lines and provisions that would be effective upon official adoption include:
- Within five days, a facility must install equipment to monitor wind speed.
- Within 30 days, a facility must install dust suppression systems along conveyor systems and any piles that are not totally enclosed.
- Within 30 days, a facility must submit applications for necessary permits and a comprehensive wastewater and stormwater runoff plan to IEPA that ensures that runoff that has come into contact with the piles is prevented from entering the waters of the state and complete it within 60 days of approval.
- Within 45 days, a facility must submit a plan to IEPA for total enclosure of all coke and coal piles, transfer points, loading and unloading areas, screening areas, crushing and sizing areas to be completed within two years of these rules being adopted. Enclosure structures must be equipped with air pollution systems at all vents and entrances and exits for material and vehicles as well as an impermeable base to guard against ground seepage.
- Within 45 days, a facility must submit a plan to IEPA to minimize the impact of truck traffic on residential areas near the source. All petcoke loading and transport must be done in vehicles sufficiently covered to guard against fugitive dust emissions.
- With 45 days, a facility must submit a plan to IEPA for coke and coal fugitive dust that must adhere to requirements in the Illinois Environmental Protection Act and must be updated at least semi-annually or within 30 days of a major equipment or control change.
- Within 60 days, a facility must remove all petcoke and coal that has been at the source for more than one year.
- Within 60 days, a facility must locate any piles, loading operations, transfer or emission points that are not totally enclosed to at least 200 feet inside the property line of the source, a minimum of 200 feet from all waters of the United States, all public water supply reservoirs and intakes and all potable wells and onto impenetrable bases or pads.
- Within 60 days, no pile may exceed 30 feet in height. Visible height markers must also be installed.
- A least once per calendar week, a facility must measure moisture content of representative samples and adjust dust suppression measures so as to meet certain standards and inspect all dust suppression equipment so as to ensure adequate operations.
- At least monthly, a facility must certify the operation of all dust suppression systems at all times during the processing of coal and coke and submit records to IEPA showing the types and quantities of materials delivered to and transported from the source, and data reflecting cleaning, street-sweeping and equipment maintenance frequency.
If you have questions on these proposed City or State emergency regulations, please contact CEC’s Chicago office at 630-963-6026.