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MODULE THREE
The Majors
Resource Conservation
and Recovery Act
Clean Water Act
1
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
RCRA: Our Comprehensive national
waste management program
3
The Solid Waste Disposal Act of 1965 and its Amendments
4
Cradle to grave
Active facilities
Generate
hazardous waste
5
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
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
RCRA may apply if...
generate, transport,
store, treat and/or
dispose of...
...solid, special and/or
hazardous wastes
8
RCRA Subtitle C
Identification
Management
Corrective Action
9
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
RCRA hazardous
waste requirements
will change based
on activities
11
Generators
Identify hazardous wastes
listed or characteristic
Contain, store, label properly
Obtain generator EPA ID#
Prepare manifests
12
Transporters
Obtain EPA and State ID
Secure and store properly
Hazardous Waste
Manifest*
DOT 49CFR
13
TSDF
Performance Standards
Permitting
14
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
RCRA Investigations:
Is there a RCRA defined
Hazardous Waste?
Investigators must understand
RCRA regulatory universe
16
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
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
Step 1: Is material excluded
from solid waste definition?
Exclusions from definition
of solid waste
40 CFR 261.4(a)
19
Domestic sewage
CWA Industrial wastewater
Irrigation return flows
Special nuclear material
In situ mining wastes...
Excluded Solid Waste
20
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
Step 2: Is the
material a solid
waste?
Definition of solid waste
40 CFR 261.2
22
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
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
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
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
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
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
Step 3: Is the solid
waste excluded
from hazardous
waste definition?
Exclusions from definition of hazardous waste
40 CFR 261.4(b)
29
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
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
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
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
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
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
Listed Hazardous Waste
Listed v. Characteristic
hazardous wastes
Basis for listing wastes
Acutely hazardous wastes
36
Characteristic
Hazardous
Waste
Key RCRA investigative activity
37
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
Corrodes steel at certain
rate & conditions
D002 Corrosivity: 40 CFR261.22
pH ≥12.5
pH≤2
39
Extremely unstable substances -or-
Tendency to react or explode during mgmt.
Narrative definition established by EPA
D003 Reactivity: 40 CFR261.23
40
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
OtherHazardous
WasteProvisions Mixture Rule
Contained-In Principle
Derived from Rule
42
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
Soil, ground & surface water debris
that is contaminated with hazardous
waste (listed or characteristic)
Contained-in Principle
44
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
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
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
RCRA Regulated Entities
TSD-Fs
Generators Transporters
48
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
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
Uniform Hazardous
Waste Manifest
51
52
53
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
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
Criminal Investigations
of RCRA Violations
RCRA regulates hazardous wastes;
does not regulate hazardous materials
56
Essential to criminal prosecution under
RCRA is the requirement that the
waste material involved be a
hazardous waste
57
First
Investigative
Inquiry
58
No RCRA jurisdiction
Is the material subject to the
investigation a solid waste?
If yes: Then...
Is it hazardous waste? If no:
59
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
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
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
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
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
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
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
Defendants can be any
individuals, corporations,
partnerships, associations,
municipalities, state, or any
department or agency of
the United States
67
Criminal provisions of
RCRA make it a federal
offense to violate
regulations promulgated
“by a State in the case of
an authorized program”
68
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
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
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
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
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
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
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
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
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
Nat’l general & specific discharge
prohibitions
National categorical standards
Local limits developed by POTWs
Pretreatment Program
Three part
system for IU:
78
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
C. A. F. O.
80
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
Spill Prevention, Reporting &
Responding to Spills
Spill Prevention and Control
Countermeasures (SPCC)
Facility Response Plans (FRP)
40CFR Part 112
82
83
OPA-90 Amendments
Oil pollution prevention
Liability & compensation regime
Increased tanker safety and oil
spill liability provisions
Promulgated by USCG
84
Big Oil + More Regulation=
85
Water pollution violations
are the most common
criminal environmental
prosecutions
86
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
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
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
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
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
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
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
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
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
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
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
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
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
Clean Water Act
100
The Importance of Regulatory Work...
...and The Potential Consequences
101

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Advanced Environmental Crimes Training Program M3

  • 1. MODULE THREE The Majors Resource Conservation and Recovery Act Clean Water Act 1
  • 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. RCRA: Our Comprehensive national waste management program 3
  • 4. The Solid Waste Disposal Act of 1965 and its Amendments 4
  • 5. Cradle to grave Active facilities Generate hazardous waste 5
  • 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. 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. RCRA may apply if... generate, transport, store, treat and/or dispose of... ...solid, special and/or hazardous wastes 8
  • 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. RCRA hazardous waste requirements will change based on activities 11
  • 12. Generators Identify hazardous wastes listed or characteristic Contain, store, label properly Obtain generator EPA ID# Prepare manifests 12
  • 13. Transporters Obtain EPA and State ID Secure and store properly Hazardous Waste Manifest* DOT 49CFR 13
  • 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. RCRA Investigations: Is there a RCRA defined Hazardous Waste? Investigators must understand RCRA regulatory universe 16
  • 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. 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. Step 1: Is material excluded from solid waste definition? Exclusions from definition of solid waste 40 CFR 261.4(a) 19
  • 20. Domestic sewage CWA Industrial wastewater Irrigation return flows Special nuclear material In situ mining wastes... Excluded Solid Waste 20
  • 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. Step 2: Is the material a solid waste? Definition of solid waste 40 CFR 261.2 22
  • 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. 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. 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. 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. 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. 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. Step 3: Is the solid waste excluded from hazardous waste definition? Exclusions from definition of hazardous waste 40 CFR 261.4(b) 29
  • 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. 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. 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. 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. 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. 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. Listed Hazardous Waste Listed v. Characteristic hazardous wastes Basis for listing wastes Acutely hazardous wastes 36
  • 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. Corrodes steel at certain rate & conditions D002 Corrosivity: 40 CFR261.22 pH ≥12.5 pH≤2 39
  • 40. Extremely unstable substances -or- Tendency to react or explode during mgmt. Narrative definition established by EPA D003 Reactivity: 40 CFR261.23 40
  • 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
  • 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. Soil, ground & surface water debris that is contaminated with hazardous waste (listed or characteristic) Contained-in Principle 44
  • 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. 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. 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
  • 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. 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
  • 52. 52
  • 53. 53
  • 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. 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. Criminal Investigations of RCRA Violations RCRA regulates hazardous wastes; does not regulate hazardous materials 56
  • 57. Essential to criminal prosecution under RCRA is the requirement that the waste material involved be a hazardous waste 57
  • 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. 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. 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. 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. 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. 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. 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. 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. Defendants can be any individuals, corporations, partnerships, associations, municipalities, state, or any department or agency of the United States 67
  • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Nat’l general & specific discharge prohibitions National categorical standards Local limits developed by POTWs Pretreatment Program Three part system for IU: 78
  • 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. C. A. F. O. 80
  • 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. Spill Prevention, Reporting & Responding to Spills Spill Prevention and Control Countermeasures (SPCC) Facility Response Plans (FRP) 40CFR Part 112 82
  • 83. 83
  • 84. OPA-90 Amendments Oil pollution prevention Liability & compensation regime Increased tanker safety and oil spill liability provisions Promulgated by USCG 84
  • 85. Big Oil + More Regulation= 85
  • 86. Water pollution violations are the most common criminal environmental prosecutions 86
  • 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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
  • 101. The Importance of Regulatory Work... ...and The Potential Consequences 101