Advanced Environmental Crimes Training Program M3


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Reviews significant aspects of the Clean Water Act and Resource Conservation and Recovery Act and its associated criminal provisions.

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Advanced Environmental Crimes Training Program M3

  1. 1. MODULE THREE The Majors Resource Conservation and Recovery Act Clean Water Act 1
  2. 2. Protect human health and environment from improper waste disposal Conserve energy and natural resources through recycling and recovery Reduce the amount of waste generated Ensure wastes are properly managed RCRA (42USC §6901) Congressional Intent 2
  3. 3. RCRA: Our Comprehensive national waste management program 3
  4. 4. The Solid Waste Disposal Act of 1965 and its Amendments 4
  5. 5. Cradle to grave Active facilities Generate hazardous waste 5
  6. 6. RCRA at Federal Facilities Public Vessel Exemption transferred or offloaded to a shore facility Military Munitions Rule Applies to ‘unserviceable munitions’ Regulators are empowered to use enforcement tools against federal facilities Federal Employee Protection and Exposure Protects employees from personal liabilities yet are subject to all laws 6
  7. 7. Divided into 10 subtitles A-J Solid Waste (Subtitle D) Hazardous Waste (Subtitle C) Underground storage tanks (Subtitle I) RCRAImplementation RCRA is not a self-implementing statute Extensive regulation 40 CFR 261-299 7
  8. 8. RCRA may apply if... generate, transport, store, treat and/or dispose of... ...solid, special and/or hazardous wastes 8
  9. 9. RCRA Subtitle C Identification Management Corrective Action 9
  10. 10. Waste Management Topic 40 CFR Definitions, Petitions, andVariances Part 260 Waste Identification Part 261 Generator Standards Part 262 Transporter Standards Part 263 TSDF Standards Part 264 (permitting) Part 265 (interim status) Specific Waste and Facility Standards Part 266 LDRs Part 268 Permit Program Part 270 and 124 State Programs/Authorization Part 271 Universal Waste Standards Part 273 Used Oil Standards Part 279 10
  11. 11. RCRA hazardous waste requirements will change based on activities 11
  12. 12. Generators Identify hazardous wastes listed or characteristic Contain, store, label properly Obtain generator EPA ID# Prepare manifests 12
  13. 13. Transporters Obtain EPA and State ID Secure and store properly Hazardous Waste Manifest* DOT 49CFR 13
  14. 14. TSDF Performance Standards Permitting 14
  15. 15. Interim status prior to permitting Delegates RCRA program to states* (Alaska & Iowa) Authorizes site inspections & enforcement Groundwater monitoring Air emission controls Corrective actions Land disposal prohibition* *for untreated HW Performance StandardsPermitting 15
  16. 16. RCRA Investigations: Is there a RCRA defined Hazardous Waste? Investigators must understand RCRA regulatory universe 16
  17. 17. Initial RCRA Investigation What is it? How was it produced? How will it be managed? Lookout for: spent material, sludge, reuse, reclaim & commercial chemical product 17
  18. 18. Hazardous Waste Determination Basics Step 1: Is material excluded from solid waste definition? Step 2: Is the material a solid waste?Step 3: Is the solid waste excluded from hazardous waste definition? Step 4: Is the solid waste actually a hazardous waste? 18
  19. 19. Step 1: Is material excluded from solid waste definition? Exclusions from definition of solid waste 40 CFR 261.4(a) 19
  20. 20. Domestic sewage CWA Industrial wastewater Irrigation return flows Special nuclear material In situ mining wastes... Excluded Solid Waste 20
  21. 21. Hazardous Waste Determination Basics Step 1: Is material excluded from solid waste definition? Step 2: Is the material a solid waste?Step 3: Is the solid waste excluded from hazardous waste definition? Step 4: Is the solid waste actually a hazardous waste? 21
  22. 22. Step 2: Is the material a solid waste? Definition of solid waste 40 CFR 261.2 22
  23. 23. Materials, not excluded from the definition of solid waste or by a variance granted by EPA or an authorized state program, are solid wastes if they are discarded. 40 CFR 261.2 solid waste is discarded materials 23
  24. 24. Discarded material Abandoned: includes materials that are disposed of, burned or incinerated, or accumulated, stored or treated prior to or in lieu of abandonment:(40CFR 261.2(b)) 24
  25. 25. Disposed of Burned or incinerated Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated 40CFR 261.2(b) Materials are solid waste if they are abandoned by being: 25
  26. 26. Discarded material Military Munitions: 40CFR 266.202 Considered inherently waste like (determined by EPA): 40CFR 261.2(d) Recycled in certain ways: 40CFR 261.2(c) 26
  27. 27. Solid Waste Definition: 2008 Revisions Excludes hazardous secondary materials that are legitimately reclaimed under the control of the generator Clarifies legitimate recycling versus sham recycling and requires that a generator make reasonable effort to determine legitimacy of a recycler 27
  28. 28. Hazardous Waste Determination Basics Step 1: Is material excluded from solid waste definition? Step 2: Is the material a solid waste?Step 3: Is the solid waste excluded from hazardous waste definition? Step 4: Is the solid waste actually a hazardous waste? 28
  29. 29. Step 3: Is the solid waste excluded from hazardous waste definition? Exclusions from definition of hazardous waste 40 CFR 261.4(b) 29
  30. 30. A list of solid wastes excluded from RCRA regulations is set forth in 40 CFR261.4(b) Congress and EPA have excluded certain wastes as hazardous wastes 30
  31. 31. Household waste Agricultural wastes that will be returned as fertilizer Mining overburden returned to mine Utility wastes from coal combustion Oil and natural gas exploration Certain tannery wastes that may fail the toxicity characteristic for chromium, but contains exclusively trivalent chromium Wastes from ore processing (the mining waste exclusion) Cement kiln dust waste Certain arsenical-treated woods Certain petroleum-contaminated media with toxicity characteristic Injected ground water that exhibits the RCRA toxicity characteristic at certain hydrocarbon recovery operations Used chlorofluorocarbon (CFC) refrigerants that have been reclaimed Empty used oil filters Certain chromium bearing wastes Leachate or condensed gas condensate collected from certain landfills 31
  32. 32. Hazardous Waste Determination Basics Step 1: Is material excluded from solid waste definition? Step 2: Is the material a solid waste?Step 3: Is the solid waste excluded from hazardous waste definition? Step 4: Is the solid waste actually a hazardous waste? 32
  33. 33. Definition of hazardous waste 40 CFR 261.3 Characteristics of hazardous waste 261.20-261.24 Lists of hazardous wastes 261.30-261.22 Step 4: Is the solid waste actually a hazardous waste? 33
  34. 34. Listed hazardous waste Characteristic hazardous waste Mixture rule: Mixture of solid waste & listed haz-waste Derived-from rule: Derived from treatment, storage, or disposal of other hazardous waste 40 CFR261.3 Definition of hazardous waste includes solid waste that exists as 34
  35. 35. Listed Hazardous Waste F-Listed Wastes from non-specific sources: 40 CFR261.31 K-Listed Wastes from specific sources: 40 CFR261.32 U & P-Listed Wastes are discarded commercial chemical products: 40 CFR261.33 NOTE: P-Listed are acutely hazardous wastes 35
  36. 36. Listed Hazardous Waste Listed v. Characteristic hazardous wastes Basis for listing wastes Acutely hazardous wastes 36
  37. 37. Characteristic Hazardous Waste Key RCRA investigative activity 37
  38. 38. ignitable liquids using flash point specific EPA-approved method oxidizers as defined in 49 CFR 173.115(a) ignitable compressed gas as defined in 49 CFR 173.127 ignitable solids is described as the following: “It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard.” D001 Ignitibility: 40 CFR261.21 38
  39. 39. Corrodes steel at certain rate & conditions D002 Corrosivity: 40 CFR261.22 pH ≥12.5 pH≤2 39
  40. 40. Extremely unstable substances -or- Tendency to react or explode during mgmt. Narrative definition established by EPA D003 Reactivity: 40 CFR261.23 40
  41. 41. Toxicity Characteristic Leaching Procedure D004-D043 40 CFR261.24 6 insecticides/herbicides Identifies wastes that leach hazardous concentrations of specific toxics Extracts toxics from wastes similar to landfill leaching action 25 organics 8 inorganics 39 TCLP/D-listed waste codes 41
  42. 42. OtherHazardous WasteProvisions Mixture Rule Contained-In Principle Derived from Rule 42
  43. 43. Mixture doesn’t have hazardous characteristics Discharges subject to CWA Mixture contains discarded commercial chemicals products from de minimis losses during manufacture Mixture Rule Exemptions 43
  44. 44. Soil, ground & surface water debris that is contaminated with hazardous waste (listed or characteristic) Contained-in Principle 44
  45. 45. If derived from listed waste, considered hazardous until de-listed If derived from characteristic, only hazardous if characteristic is exhibited ‘Derived from’ Rule Exemptions 45
  46. 46. Universal Hazardous WastesAlternative Regulatory program 40 CFR273 Batteries not to include lead-acid batteries covered by 40 CFR266 Pesticides includes cancelled, unused, or suspended pesticides Lamps including fluorescent, mercury vapor, neon, high intensity discharge, high pressure sodium, and metal halide Mercury-containing equipment 46
  47. 47. Does RCRA APPLY? Used oil located in tanks Pipe insulation containing friable asbestos Decontaminated tank shells Several drums containing used solvents Several drums of paint thinner A plastic drum containing a mixture of alkaline and rechargeable batteries (Ni-Cad) Pipe racks contaminated with BTEX & PCBs (>50ppm) Drums containing used paint spray cans 47
  48. 48. RCRA Regulated Entities TSD-Fs Generators Transporters 48
  49. 49. Generator Requirements RCRA related records retained for minimum 3 years EPA ID Number O Bulking/storage requirements on-site Initiate Hazardous Waste Manifest with Hazardous Waste Identification DoT requirements Manifest signatories 49
  50. 50. Generator Quantity Regulation On-Site Accumulation Times On-Site Quantity Limit Large Quantity Generator (LGQ) ≥ 1,000 kg/month (approx. 2200 lbs.) > 1 kg/month acute (approx. 2.2 lbs.) > 100 kg residue or contaminated soil from cleanup of acute hazardous waste spill All part 262 reqs ≤ 90 days on site No limit Small Quantity Generator (SQG) Between 100-1,000 kg/ month Part 262, Subparts A, B, C (§262.34(d) is specific to SQGs); and Subparts E, F, G, H if applicable; and portions of Subpart D as specified in §262.44 ≤ 180 days on site or ≤ 270 days if shipped 200 miles or more 6,000 kg Conditionally Exempt Small Quantity Generator (CESQG) ≤ 100 kg/month ≤ 1 kg acute ≤ 100 kg residue or contaminated soil from cleanup of acute hazardous waste spill §261.5 N/A 1,000 kg 1 kg acute 100 kg residue or contaminated soils from cleanup of acute hazardous waste spill 50
  51. 51. Uniform Hazardous Waste Manifest 51
  52. 52. 52
  53. 53. 53
  54. 54. Transporter Requirements Hazardous waste can hold at transfer facility for 10 days without permitting Engaged in the off-site movement of hazardous waste by air, rail, highway or water 54
  55. 55. Implications for transporter definitions ‘on-site’ & ‘off-site’ Along roadway v. across public or private right of way Transporters Generators Mixed wastes of different DOT classes Accumulates waste Liable for spill response 55
  56. 56. Criminal Investigations of RCRA Violations RCRA regulates hazardous wastes; does not regulate hazardous materials 56
  57. 57. Essential to criminal prosecution under RCRA is the requirement that the waste material involved be a hazardous waste 57
  58. 58. First Investigative Inquiry 58
  59. 59. No RCRA jurisdiction Is the material subject to the investigation a solid waste? If yes: Then... Is it hazardous waste? If no: 59
  60. 60. Recyclability Claims Not a waste until it can no longer be recycled or reused Common RCRA Investigative Issues: Product Not a waste until used, abandoned, outdated spilled or no longer fit for original purpose 60
  61. 61. Common RCRA Criminal Violations42 USC6928(d)(1) and (5): To knowingly transport hazardous waste without a manifest or to a facility that does not have a permit 42 USC6928(d)(2): To knowingly treat, store, or dispose of hazardous waste without a permit or in violation of a permit To knowingly dump a hazardous waste into the ocean without a permit 61
  62. 62. Common RCRA Criminal Violations42 USC6928(d)(3) and (4): To knowingly make a false material statement or omit material information in the documents filed, maintained, or used in compliance with EPA or state RCRA regulations To destroy, alter, conceal, or fail to file a document required under EPA or state RCRA program 42 USC6928(d)(6): To export hazardous waste to a foreign country without consent 62
  63. 63. RCRA Criminal Violations Knowing Violations are felonies No negligent or misdemeanor violations Penalties 2 to 5 years imprisonment Fines to $50K/day of violation 2nd offenses double the penalty 63
  64. 64. RCRA Criminal Violations Knowing Endangerment Provides for more substantial felony penalties for any person who commits egregious acts Penalties Up to 15 years imprisonment Fines to $250K/day of violation Corporate defendants max fine $1M 64
  65. 65. RCRA Criminal Enforcement Concepts Knowing element of an environmental crime: Defendant requires only knowledge of his/her activities not that actual knowledge of EPA regulations 65
  66. 66. DoJ & EPA have aggressively applied knowing endangerment provisions via two prong test Responsible Corporate officer Doctrine Acted knowingly, had knowledge of the general hazardous character Knew that the chemical had potential to be harmful of others 66
  67. 67. Defendants can be any individuals, corporations, partnerships, associations, municipalities, state, or any department or agency of the United States 67
  68. 68. Criminal provisions of RCRA make it a federal offense to violate regulations promulgated “by a State in the case of an authorized program” 68
  69. 69. RCRA Challenges regulated community Use innovative and emerging technologies, as well as modifications to production processes and raw materials Incentivizes not producing waste of any kind 69
  70. 70. CWA (33USC §1251) Federal Water Pollution Control Act as amended by the Clean Water Act or “Don’t put it out the Pipe!” or “Why is that fish swimming upside down?” 70
  71. 71. It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985 33 U.S.C. Section 1251 (a)(1) 71
  72. 72. The objective of the Federal Water Pollution Control Act as amended by the Clean Water Act and the Oil Pollution Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. 72
  73. 73. CWA Pollutants dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste CWAKeyDefinitions 73
  74. 74. CWAKeyDefinitions Point Source Any discernible, confined and discrete conveyance, including, …any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged Note: This term does not include return flows from irrigated agricultural fields 74
  75. 75. Non-Point Source Discharges Major source of pollution of nation’s waters Largest source is agricultural runoff Impacts to surface waters Siltation, salinity, pesticides, and nutrient discharges 75
  76. 76. CWA Framework Title IV: National Pollution Discharge Elimination System Permit sets limitations on authorized discharges Required for any discharge No permits issued for discharges into territorial seas unless permitee complies with special criteria 76
  77. 77. Pretreatment Program Industrial Users (IUs) must discharge into Publicly Owned Treatment Works (POTWs) Imposed limitations documented via municipal POTW permit Direct industrial-sector effluent discharges are prohibited 77
  78. 78. Nat’l general & specific discharge prohibitions National categorical standards Local limits developed by POTWs Pretreatment Program Three part system for IU: 78
  79. 79. Causes pass through or interference on sludge processes Specific explosion hazards, corrosivity issues, solid or viscous material that obstruct flow Prohibition on any pollutant that 79
  80. 80. C. A. F. O. 80
  81. 81. 33 USC §1321 There should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone Spill Prevention, Reporting & Responding to Spills 81
  82. 82. Spill Prevention, Reporting & Responding to Spills Spill Prevention and Control Countermeasures (SPCC) Facility Response Plans (FRP) 40CFR Part 112 82
  83. 83. 83
  84. 84. OPA-90 Amendments Oil pollution prevention Liability & compensation regime Increased tanker safety and oil spill liability provisions Promulgated by USCG 84
  85. 85. Big Oil + More Regulation= 85
  86. 86. Water pollution violations are the most common criminal environmental prosecutions 86
  87. 87. NPDES permitees are required to report any anticipated noncompliance Any noncompliance not required to be reported under any other specific provision Any noncompliance that permitee failed to report as required within regulations or permit Further... 87
  88. 88. Negligent violation $2,500 to $25K fine per day, imprisonment for not more than one year, or both Knowing violation $5K to $50K fine per day, imprisonment for not more than three years, or both Maximum penalties for subsequent convictions are doubled CWA Criminal Violations 88
  89. 89. CWA Criminal Violations Knowing Endangerment 33 USC§1319(c)(3): Defendant knew at the time that he/she placed another person in imminent danger of death or serious bodily injury 15 years imprisonment or $250K $1M for an organization 89
  90. 90. Wetlands Violations CWA Criminal Violations Knowingly discharge a pollutant into a water of the US (i.e., wetland) without a permit or in violation of a permit (NPDES or 404 permit)* *Involves destruction of wetlands by filling with dredged or other materials Wetlands perform fundamental ecological functions: fish nurseries and trap pollutants 90
  91. 91. CWA Criminal Violations Knowing Falsification 42 USC §1313(c)(4): Tampering with monitoring device or method 2 years imprisonment or $10K fine Penalties double for subsequent violations Most commonly involves falsification of discharge monitoring reports (DMRs) by NPDES permitees 91
  92. 92. Knowingly making a false material statement representation, or certification in any application, record, report, plan, or other document filed or required to be maintained Effectiveness and integrity of CWA program depends upon truthful and accurate self- reporting by the regulated community Falsification and Tampering: Closely exam dmr’s and other permit docs 92
  93. 93. For a pollutant discharge to be lawful, the discharger must have an NPDES permit and the discharge must be in compliance with that permit 93
  94. 94. CWA Criminal Violations Direct Discharge Violations Knowingly or negligently discharging a pollutant directly to water either without a permit or in violation of a permit NPDES permits may be issued by EPA Programs generally delegated to states 94
  95. 95. Indirect Discharge: Pretreatment Violations Knowingly or negligently introducing a pollutant or hazardous substance into POTW* CWA Criminal Violations *POTWs lack capacity to treat every type of industrial waste (particularly toxic pollutants) 95
  96. 96. effluent will Significantly impact surface water quality Large quantities of industrial waste waters and domestic wastes are discharged “indirectly” into surface waters via sewer systems 96
  97. 97. Knowing discharge of oil or hazardous substance Fines and imprisonment vary depending on source (facility/vessel), size of spill, spill history Knowingly (or negligently) discharging oil or hazardous substance into waters of the US, in a harmful quantity CWA Criminal Violations 97
  98. 98. CWA Criminal Violations Knowing discharge of oil or hazardous substance 33 U.S.C. § 1321(b)(5): Failure to immediately notify the government about an oil spill (harmful quantity) or hazardous substance in a reportable quantity 5 year felony 98
  99. 99. CWA Delegation to States States must demonstrate adequate enforcement program Feds can initiate action even if state doesn’t Feds can bring parallel action with state EPA can suspend state program if necessary 99
  100. 100. Clean Water Act 100
  101. 101. The Importance of Regulatory Work... ...and The Potential Consequences 101