Definition of Solid Waste Rule - Recycling of Hazardous Wastes

The US EPA "Definition of Solid Waste" rule goes into effect on December 29, 2008. The rule is a hazardous waste regulatory exclusion, intended to streamline the requirements for recycling certain materials, such as sludges, by-products and spent materials. EPA estimates that 1.5 million tons of hazardous secondary materials will be exempted from regulation as hazardous wastes each year under this rule. By removing unnecessary regulatory controls, EPA expects to make it easier and more cost-effective to safely recycle hazardous secondary material.

The rule provides conditional exemptions for:

• materials that are generated and legitimately reclaimed under the control of the generator;
• materials that are generated and transferred to another company for legitimate reclamation under specific conditions; and
• materials that EPA or an authorized state determines to be non-wastes through a case-by-case petition process.

This rule also includes a provision to help determine which recycling activities are legitimate under the new exclusions and non-waste determinations.

It is important to note that in some States, revisions to State Rules may be necessary before waste generators can take advantage of these changes. States can decide whether or not to fold the new Federal rules into State rules.

Caltha LLP provides technical support to waste generators on waste management regulations, waste minimization and pollution prevention.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Court Restores Clean Air Interstate Rule (CAIR)

On December 23, 2008, the US Court of Appeals for the District of Columbia Circuit reversed its vacatur of the US EPA Clean Air Interstate Rule (CAIR). CAIR was intended to regulate interstate emissions of nitrogen oxides (NOx) and sulfur dioxide (SO2) contributing to nonattainment areas for fine particulate and ozone. The Court had vacated CAIR in July 2008, citing significant flaws in EPA’s regulations.

The recent ruling means that CAIR, as previously promulgated by EPA, will remain in place until such time as the EPA revises the rule, as per the instructions of the Court’s order in July.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Proposed Rules on Ammonium Nitrate Handling - DHS Security Requirements

The Department of Homeland Security (DHS) has published an Advance Notice of Proposed Rulemaking (ANPRM) seeking comments on a recent amendment to the Homeland Security Act entitled "Secure Handling of Ammonium Nitrate". The amendment requires the DHS to ''regulate the sale and transfer of ammonium nitrate by an ammonium nitrate facility...to prevent the misappropriation or use of ammonium nitrate in an act of terrorism.''

Written comments must be submitted on or before December 29, 2008.

Ammonium nitrate is also regulated as a Section 313 Water Priority Chemical, and may have additional control and security requirements under the Clean Water Act [Read more about requirements for Section 313 chemicals]

Caltha LLP provides technical support to facilities required to meet hazardous material storage and reporting requirements.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

New York (NYDEC) Plastic Bag and Film Recycling Rules- Effective January 2009

On December 13, 2008, Governor Patterson signed New York State's Plastic Bag Reduction, Reuse, and Recycling Act. This law requires larger retail and chain stores to accept clean plastic bags for recycling starting January 2009.

Under the new law, retail establishments with more than 10,000 square feet of retail space, or those that are part of a chain with more than five stores (each with more than 5,000 square feet of retail space), must provide bins for the collection of used plastic carryout bags, recycle the returned bags and keep records for three years describing the amount of plastic bags collected and recycled.

The new state law will pre-empt local governments from adopting their own plastic bag recycling laws. However, it is expected that additional legislation will be enacted to amend the bill signed by the governor to allow New York City to retain an effective and popular local law that established a citywide recycling program for plastic carryout bags and film plastics. Another expected amendment will require the recycling of film plastics as part of the statewide program.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Washington WEEE Recycling Law - E-Cycle Washington

Beginning January 1, 2009, the E-Cycle Washington program kicks-off and provides no cost recycling of many waste electronic and electrical equipment (WEEE). The program is available to households, small businesses, schools & school districts, small governments, special purpose districts, and nonprofits & charities who can recycle electronic products free of charge.

E-Cycle Washington is one outcome of the Washington Electronic Product Recycling Law and Department of Ecology rules passed in 2007. These rules include:

• Manufacturer requirements
• Transporter requirements
• Recycler requirements
• Retailer requirements
• Reporting requirements
• Education and outreach

Caltha LLP assists manufacturers in meeting their internal product stewardship goals and regulatory requirements.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Federal Lead Standards - Companies Agree To Early Restrictions

A number of toy manufacturers have agreed to adopt the new federal standards immediately, ahead of a new federal law ratcheting down standards for lead in toys that won't go into effect until Feb. 10, 2009. By this agreement to settle a law suit with the State of California, the companies agreed not to sell any toys they know contain lead above the soon-to-be Federal standard of 90 parts per million (ppm), The companies will also pay over $0.5 million for lead testing and improved consumer notification.

In 2008, Congress passed a consumer product safety legislation, the Consumer Product Safety Improvement Act, which:

• Lowers the standard for lead in paint and surface coatings from 600 parts per million currently to 90 parts per million after Aug. 14, 2009,
• Establishes tighter restrictions for lead in other materials used in toys, such as plastics, metals and fabrics.

Under the terms of the settlement agreement in California, the companies will:

• Implement the federal lead standards on Dec. 1, 2008, instead of Feb. 10, 2009,
• Meet the 90 ppm lead in paint standard by Dec. 1, 2008, instead of by Aug. 14, 2009,
• Meet the 300 ppm standard for lead in plastics, metals, and fabrics by Dec. 1, 2008.

If the companies find toys in excess of the lead standard, they will stop selling and distributing those toys, regardless of when the toy was made. If the companies violate the lead standard in the future, the California Attorney General can obtain penalties through an expedited enforcement process.

Caltha LLP assists manufacturers, importers and exporters in evaluating and meeting product stewardship requirements.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

State Antidegradation Policy - Significance to Wastewater and Stormwater Dischargers

Over recent years, much attention has been placed on State policies and procedures regarding impaired waters, 303d listing, and TMDLs. However, State Antidegradation Policies can be as significant, and in many cases can affect a greater number of dischargers.

In essence, the two regulatory programs address two subsets of "waters of the State" 1) those that currently do not meet their water quality standards, and 2) those that do currently meet standards.

Impaired Waters Programs address waters that do not meet their respective water quality standards. Studies and implementation plans ("TMDLs) are required to move these impaired waters back into compliance.

In contrast, Antidegradation policies or programs address waters that current meet their respective standards. In this case, policies or rules are in place to assure that NEW or EXPANDED discharges to these waters do not result in an unacceptable degradation in water quality (even if still below water quality standards). Antidegradation policies will generally set thresholds for new or expanded discharges above which Antidegradation Reviews may need to be conducted before the discharge is permitted.

One of the complicating factors in antidegradation policies is the application to stormwater discharges which require an NPDES permit. Typically the antidegradation policy thresholds are not expressed in units that are easily applied to stormwater discharges. For example, an existing industrial facility which has a permit to discharge stormwater expands its truck parking area, which technically increases flow. Depending on the specific requirements of the State's antidegradation policy, this increase may require an antidegradation review.

Caltha LLP provides technical support to wastewater and stormwater permittees nationwide to address antidegradation requirements.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Missouri (MDNR) Nutrient Water Quality Criteria For Streams

The Missouri Department of Natural Resources (MDNR) has begun the formal process of setting nutrient water quality criteria for streams and rivers in the State, as required under section 304(a) of the Clean Water Act. This is the second phase of a process approved by US EPA in 2005 to set water quality standards for specific nutrients in waters of the State. This process was detailed in the document "Nutrient Criteria Plan".

Nutrient criteria for lakes and reservoirs have already been drafted and are scheduled for submission into the rulemaking process as a part of revision to Water Quality Standards.

Beginning in February 2009, MDNR will be conducted public meetings to solicit input into the development of nutrient criteria for streams and rivers.

Caltha LLP assists clients nationwide in assessing and addressing water quality standards.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

TALU - MPCA Considers Major Revison To Water Quality Standards

Minnesota is working to revise its Water Quality Standards to incorporate a tiered aquatic life use framework for rivers and streams in the state. The Tiered Aquatic Life Use (TALU) framework represents a significant revision to the Water Quality Standards of the State’s aquatic life use classification.

MPCA will be conducting public meetings to discuss the approach during January 2009. Rulemaking to incorporate TALU into State Water Quality Standards would not occur until 2010-2011.

The TALU approach utilizes biological assessments of water bodies to identify “stressed” aquatic communities. This assessment would be separate from, and in addition to, traditional current chemical monitoring of lakes and streams to determine if they meet State Water Quality Standards. TALU also provides a mechanism to determine impairments of “modified or limited water resources”, which may include channelized streams and agricultural ditches.

TALU presents a few issues related to integration into existing regulatory programs and requirements, including:

• How will assessments made using TALU relate to determination of impairment, and the State list of Impaired Waters (“303d List”)?
• If listed on 303d List, how would a TMDL be implemented?
• How would permitted discharges be controlled if discharging to a “stressed” water body?
• How would it be determined that a discharge “causes or contributes to” an impairment if discharging to a “stressed” water body?
• How would TALU be used for “development and modification of water quality standards to produce improved standards”?

Caltha LLP provides technical support to wastewater dischargers needing to evaluate and address their State's water quality standards.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Environmental Due Diligence Checklist - Role of Regulatory Compliance

Environmental compliance issues can have a significant financial impact and should be incorporated into the scope of environmental due diligence. A formal compliance audit may be considered, and may have some additional benefits in reducing future liabilities. [read more about recent changes to EPA Audit Policy as it applies to new owners] However, given time and access constraints, a formal audit may not always be feasible during due diligence. In this case, four key areas related to environmental compliance are of high importance.

Non-compliance Issues that Could Result in Capital Improvements. Correcting some non-compliance issues can cost significant amounts of money. For example, tanks without the required secondary containment are expensive to retrofit. Upgrades to pollution control equipment, such as wastewater treatment or air emission control can also be expensive. It is important to understand industrial site operations, so those compliance items which typically involve capital improvements can be highlighted.

Asbestos. The management of asbestos-containing materials is regulated under OSHA, and often is not considered under “environmental compliance”. Management of asbestos in-place requires an Asbestos Management Plan, specialized training and employee notification. Ultimately, if areas with asbestos are disturbed, added costs for handling and disposal of the asbestos material will be realized. Understanding whether asbestos occurs and how it being managed is important to factoring in these future costs.

Missing Permits or Approvals. Changes made at a facility overtime can require new permits, revision to existing permits or pre-approvals for agencies. Understanding what permits and approvals are required is sometimes a complicated task; the result is that upon reviewing the operations, missing permits or approvals can be discovered. “After-the-fact” permitting is often a difficult and expensive process. Capital improvements may be required to comply with the permits, once obtained. The affected processes might need to be shut down until proper permits are obtained. All of these consequences can have a significant financial impact, which should be addressed during the due diligence process.

Upcoming Regulations. The fourth area is upcoming regulations. Although a facility may be in compliance with current requirements, these requirements can change. Impending regulations should be considered to assess any additional costs that will be incurred for the operation. Imminent regulations could, for example, could involve changes to air rules which may require upgrades to pollution control equipment. International regulations on products may also apply; for example, the Waste Electrical & Electronic Equipment (WEEE) and Restriction of Hazardous Substances (RoHS) rules in Europe, which could impact US-based manufacturers.


Caltha LLP provides environmental due diligence services nationwide, specializing in Food, Manufacturing and Electric Utility sectors.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

TSCA Amendment – Mercury Export Ban Act of 2008

In October 2008, the Mercury Export Ban Act of 2008 was signed into law. The Act amendments the existing Toxic Substances Control Act (TSCA). The Act, sponsored by Senator Barack Obama, places controls on the use, export and storage of elemental mercury. Key elements of the Act are:

PROHIBITION ON SALE, DISTRIBUTION, OR TRANSFER OF ELEMENTAL MERCURY BY FEDERAL AGENCIES. Beginning in October 2008, no Federal agency can convey, sell, or distribute to any other Federal, State or local government agency, or any private individual or entity any elemental mercury.

PROHIBITION ON EXPORT OF ELEMENTAL MERCURY. Effective in 2013, the export of elemental mercury will be banned. This part also requires that a report be made to Congress by October 2009 that summarizes the current and projected production, uses and export of mercury from the US. This part also offers case-by-case exemptions for "essential uses" of mercury for which suitable alternatives are not available.

LONG-TERM STORAGE. The Mercury Export Ban Act also requires that the Federal government create by 2013 storage facilities for mercury wastes generated in the US.

Caltha LLP provides technical support to companies nationwide to maintain compliance with TSCA and other regualtory programs.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Minnesota OSHA AWAIR Program Revision – New NAICS Requirements

In November 2008, the Minnesota OSHA adopted the new NAICS classification to determine if employers are required to comply with A Workplace Accident and Injury Reduction (AWAIR) Program. Employers that fall within the listed NAICS codes are required to prepare and maintain a written AWAIR program.

Because the shift to the NAICS system may make some employers subject to AWAIR that previously were not subject, a “grace period” have been established for companies to develop and implement their written programs. All companies subject to AWAIR must have their program established no later than May 3, 2009.

[read more about differences between SIC code and NAICS systems]

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Iowa DNR Antidegradation Policy – IDNR Accepting Comments on Draft Policy

The Iowa Department of Natural Resources (IDNR) is proposing changes to its “Antidegradation Policy”. The changes can impact any wastewater discharger in Iowa, but especially new permittees or existing permittees that may wish to increase their discharge in the future. The changes being proposed include:

• Incorporate by reference the document entitled “Iowa Antidegradation Implementation
  Procedure,” which proposes an approach to assessing and minimizing degradation of Iowa’s surface waters,
• Update antidegradation policy language with four tier approach,
• Remove High Quality (Class HQ) and High Quality Resource (Class HQR) designated uses and add several waters to the newly proposed Outstanding Iowa Water (OIW) category.
  

The purpose of the antidegradation policy is to set minimum requirements to conserve, maintain, and protect existing uses and water quality for water bodies that currently meet their water quality standards. The department is required by Clean Water Act to develop and adopt a statewide antidegradation policy and to identify procedures for implementing the policy. Comments on the draft policy are being accepted through January 29, 2009.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Auxiliary Facilities – TRI Reporting Requirements Under New NAICS System

In 2007, EPA issued a final rule requiring that facilities reporting under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), commonly called the toxics release inventory (TRI), identify the nature of their business by using North American Industry Classification System (NAICS) codes. Beginning with reports submitted 2007, NAICS codes replaced Standard Industrial Classification (SIC) codes that have been in use since TRI was initiated in 1987.

Both the SIC and NAICS systems were developed to organize and track information the US economy. The basic difference in approach to the two systems is that the SIC system classifies establishments based on their economic output (i.e, what they produce or provide), and the NAICS classifies establishments according to the processes used to produce goods and services (i.e., what they do). With one exception, the switch to NAICS did not affect facilities already required to report under TRI. No industry groups were added to or deleted from the list as a result of the change.

The exception involves businesses classified as "auxiliary facilities" which, under SIC, are those facilities that provide support functions for a manufacturing activity. For example, a distribution center operated by a paper products manufacturer was assigned the same SIC code as the manufacturing operation it supported. Under NAICS, the same distribution center would be assigned a code reflecting the warehousing and logistics operations.

Auxiliary facilities traditionally reported to TRI using the SIC code of the establishment they supported. NAICS did not adopt the SIC concept of auxiliary establishments. Under NAICS, these facilities now report their TRI according to their own activities.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Mercury Source Reduction Sectors - Draft GLRC Priority Sectors

In 2008, the Great Lakes Regional Collaboration (GLRC) Executive Committee directed that a Great Lakes Mercury Emission Reduction Strategy be developed with a goal of producing institutionalized activities to sustain mercury emission reductions from unregulated sources, and regulated sources with potential for additional reduction. The strategy would produce recommendations or options for state action. A workgroup was formed in April 2008 to develop the Strategy.

In November 2008, the work group released several draft documents which will be part of the overall Draft Mercury Emission Reduction Strategy Report. These documents have been made available for public comment until December 17, 2008.

A key document out for review is the draft listing of priority source sectors to be addressed. These sectors were selected based on a set of criteria (which are also being published for public comment) and using existing information of mercury sources. The priority source sectors are:

• Utility boilers
• Metals production
• Waste incineration
• Cement production
• Non-utility fuel combustion
• Mercury cell chlor-alkali plants
• Mercury emission related to product use and disposal
  

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Proposed Revision to South Dakota (DENR) Water Quality Standards

The South Dakota Department of Environment & Natural Resources (DENR) has proposed revisions to the State water quality standards.

Link to proposed SDDENR water standards

Many of the revisions being propsed relate to the application of dissolved oxygen (DO) standards to lakes and rivers.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Audit Policy - EPA Policy Changes Regarding New Owners

Since 2000, US EPA has offered reduced enforcement for self-disclosure of environmental compliance violations. EPA’s policy document, “Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations” is commonly known as the “Audit Policy”. On August 1, 2008, the EPA published an interim approach to applying the Audit Policy to new owners that allows new owners to make a fresh start with the EPA.

With the interim approach, the EPA recognizes that a new owner should not be penalized for the economic benefit component relating to violations that arose before a facility was under its control, as long as the new owner is willing to correct issues promptly and institute preventive measures.

Some key elements of the interim approach include:

• Defining a “new owner” to ensure that the violations disclosed originated with the prior owner, and that the new owner was not responsible for the non-compliance disclosed;
• Extending the time for reporting for up to nine months after closing the transaction;
• Relief from the economic benefit component of the penalty for new owners; and
• Applying five of the nine qualifying conditions differently to the new owner.
  

One of the important aspects of this policy is that non-compliance at the Seller’s facility can be reported to regulatory agencies before or soon after property transfer. In making the disclosure, the new owner can make the previous owner responsible for penalties, etc., especially associated with economic benefit component, related to the non-compliance.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Demolition Wastes - Proposed MPCA Rule

The Minnesota Pollution Control Agency (MPCA) has published draft rules relating to assessment and removal of certain items and materials prior to the renovation and/or demolition of structures.

For the purposes of the draft rule, renovation/demolition is defined as “physical alteration of the interior or exterior of a structure for the purpose of renovating or removing the structure, and includes alteration or removal of walls, ceilings, floors, or roofs or associated structural components”. Structures subject to the draft rule include residential, recreational, governmental, agricultural, commercial, or industrial and other buildings.


The draft rule lists specific items and materials that must be characterized, tested, managed, and disposed of, reused or recycled before renovation and demolition:

• items that would normally be disposed of as mixed municipal solid waste ;
• household hazardous waste;
• industrial solid waste or hazardous waste;
• waste tires;
• major appliances;
• items that may contain elemental mercury;
• items that may contain PCBs;
• items that may contain CFCs;
• oils;
• lead-containing items;
• electronic products containing a cathode ray tube;
• electronic products containing a circuit board;
• asbestos;
• material trapped in sumps and traps;
• radioactive waste; and
• other materials or items that are prohibited at the demolition waste facility.
  

Some exemptions are included in the draft rule, such as when the structure is unsafe to enter as determined by a local government authority.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website

Environmental Compliance Audits - Role in Environmental Due Diligence

"Should I include a compliance audit as part of my environmental due diligence?”
This question arises frequently during environmental due diligence for mergers and acquisitions. The answer is actually relevant to many types of transactions, whether a business is being acquired, or if “assets only” are being purchased.

Compliance with applicable regulations can have a significant financial impact on a business transaction; however, separating and focusing on key issues will reduce the level of effort required and eliminate spending time and resources collecting information that has very little impact on the transaction.

Many of the “best-in-class” companies conduct routine environmental compliance audits of their operations. The important point is that even the best run companies will find compliance issues at their facilities and will routinely be in corrective action to improve their operations and address any deficiencies. Often, these non-compliance issues are administrative, such as maintaining required documentation, or training-related. Once the deficiency is identified, it can be quickly remedied at little or no cost.

While considering using a formal Environmental Compliance Audit during due diligence, it should acknowledged that most audits will identify some areas of improvement within the organization. Given this, careful consideration should be given to how this information will be used in the due diligence effort. Given the time frame typically allowed for due diligence, it is often difficult to conduct a formal compliance audit. Beyond the time constraints, confidentially concerns may limit access to facility staff who would typically be an integral part of the audit process. And in the end, the the most important consideration will be whether or not the information gathered will be useful to business decisions regarding the transaction.

In many cases, a COMPLIANCE ASSESSMENT is more useful that a COMPLIANCE AUDIT. For more information:

Article comparing Environmental Compliance Assessments to Compliance Audits

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website