EPA Amends Export-Import regulations for Hazardous Wastes

On Monday, November 28, 2016 the Environmental Protection Agency (EPA) published a final rule (81 FR 85696) amending their Hazardous Waste Export-Import regulations.

The changes were made to make "existing export and import related requirements more consistent with the current import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD); enable electronic submittal to EPA of all export and import-related documents"; and "enable electronic validation of consent in the Automated Export System (AES) for export shipments subject to RCRA export consent requirements prior to exit."

The revisions will generally affect the following:

  • Groups who export or import (or who arrange for the export or import) hazardous waste for recycling or disposal, including those subject to alternate management standards for:
    • Universal waste for recycling or disposal
    • Spent lead-acid batteries shipped for reclamation
    • Industrial ethyl alcohol shipped for reclamation 
    • Hazardous waste samples of more than 25 Kg shipped for waste characterization or treatability studies
    • Hazardous recyclable materials being shipped for precious metal recovery
  • All recycling and disposal facilities who receive imports of hazardous wastes for recycling or disposal
  • All persons who export (or arrange for the export) of conditionally excluded cathode ray tubes being shipped for recycling
  • All persons who transport any export and import shipments described in the three bullets above

Some of the major regulatory provisions in the final rule include (list below is not exhaustive):

  • Recognized traders must obtain an EPA ID number prior to arranging for export (40 CFR 262.12(d))
  • Exporters must establish/amend contracts or equivalent arrangements to include the items listed in 40 CFR 262.83(f)
  • Exporters must submit export notice or renotification with all required OECD items electronically into EPA's WIETS (40 CFR 262.83(b))
  • Exporters must either file in AES for every shipment to validate consent and provide a manifest tracking number, or must ensure paper proof of consent accompanies the shipment and a paper manifest is given by the transporter to US CBP at the point of departure; after AES compliance date exporters must file in AES for every shipment (40 CFR 262.83(a)(6))
  • Exporters must prepare and provide RCRA manifest for every shipment (40 CFR 262.83(c))
  • Exporters must prepare and provide international movement document for every shipment (40 CFR 262.83(d))
  • The last U.S. transporter must sign and date the manifest at the port for every shipment, keep a copy for their records and send back a copy to the generator (40 CFR 262.83 (a)(6)(i)(B)(2) and 263.20 (g)(4)(ii)
  • Exporters must submit export annual report with all OECD items to EPA by March 1 detailing actual shipments made the previous calendar year (40 CFR 262.83(g))

Some of the electronic submittal requirements will not go into effect until a future electronic import-export reporting compliance date that will be announced in a separate Federal Register notice.

The rule becomes effective on December 31, 2016. 

Key Definitions:

  • Exporter, also known as primary exporter on the RCRA hazardous waste manifest, means the person domiciled in the United States who is required to originate the movement document in accordance with Sec. 262.83(d) or the manifest for a shipment of hazardous waste in accordance with subpart B of this part, or equivalent State provision, which specifies a foreign receiving facility to which the hazardous wastes will be sent, or any recognized trader who proposes export of the hazardous wastes for recovery or disposal operations in the country of import.  
  • Importer means the person to whom possession or other form of legal control of the hazardous waste is assigned at the time the imported hazardous waste is received in the United States.  
  • Recognized trader means a person domiciled in the United States, by site of business, who acts to arrange and facilitate transboundary movements of wastes destined for recovery or disposal operations, either by purchasing from and subsequently selling to United States and foreign facilities, or by acting under arrangements with a United States waste facility to arrange for the export or import of the wastes.  

Congress sends President TSCA Overhaul bill

On Tuesday, Congress passed a bill that would update the 1976 Toxic Substances Control Act (TSCA).  The measure requires the Environmental Protection Agency (EPA) to evaluate new and existing chemicals with a risk-based safety standard.  The bill establishes deadlines for the EPA and makes it more difficult for industry to make proprietary claims. 

The American Chemistry Council (ACC), which represents the U.S. chemical industry, supported passage of the measure. 

Key Link(s):

O&G Sector - Emission Standards for New, Reconstructed, Modified Sources

On June 3, 2016 the US Environmental Protection Agency (EPA) published a rule (81 FR 35823-35942) that finalizes amendments and the addition of new standards to the existing new source performance standards (NSPS) for the Oil and natural gas source category.  The rule establishes new greenhouse gases (GHGs) and VOC standards in this source category. 

The emission sources affected by the GHGs and VOC standards include the following:

Sources that are unregulated by the current NSPS

  • Hydraulically fractured oil well completions
  • Pneumatic pumps
  • Fugitive emissions from well sites and compressor stations

Sources that are regulated for VOC but not for GHGs

  • Hydraulically fractured gas well completions
  • Equipment leaks at natural gas processing plants

Certain Equipment that is used across the source category in which VOCs are currently regulated only from a subset

  • Pneumatic controllers
  • Centrifugal compressors
  • Reciprocating compressors

The final rule is effective August 2, 2016. 

Key Link(s):

EPA Partially Exempts Certain Chemical Substances From Some CDR Reporting

On March 29, 2016 the EPA published a final rule (81 FR 17392-17395) that amends the list of chemical substances that are partially exempt from reporting additional information under the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule.  The final rule is effective March 29, 2016. 

With this final rule the EPA is adding the following chemical substances to the list that are exempt from reporting the information described in 40 CFR 711.15(b)(4) :

  • Fatty acids, C14-18 and C16-18 unsaturated, methyl esters (CASRN 67762-26-9)
  • Fatty acids, C16-18 and C-18 unsaturated, methyl esters (CASRN 67762-38-3)
  • Fatty acids, canola oil, methyl esters (CASRN 129828-16-6)
  • Fatty acids, corn oil, methyl esters (CASRN 515152-40-6)
  • Fatty acids, tallow, methyl esters (CASRN 61788-61-2)
  • Soybean oil, methyl esters (CASRN 67784-80-9).

According to 40 CFR 711.6, this partial exemption will become inapplicable to a chemical substance in the event that the chemical substance later becomes the subject of a rule proposed or promulgated under section 4, 5(a)(2), 5(b)(4), or 6 of TSCA; an enforceable consent agreement (ECA) developed under the procedures of 40 CFR part 790; an order issued under TSCA section 5(e) or 5(f); or relief that has been granted under
a civil action under TSCA section 5 or 7.

The EPA is Proposing to Amend its RMP Regulations

On March 14, 2016 the Environmental Protection Agency (EPA) published a proposed rulemaking (81 FR 13638) that includes major changes to its Risk Management Program (RMP) regulations (40 CFR Part 68). The RMP regulations apply to facilities that hold regulated substances in excess of threshold quantities.  The proposed rulemaking says the amendments are intended to "seek to improve chemical process safety, assist local emergency authorities in planning for and responding to accidents, and improve public awareness of chemical hazards at regulated sources."

The proposed rulemaking includes major changes in the following areas:

Accident Prevention Program

  • All facilities with Program 2 or 3 processes (definition below) would be required to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss).
  • Facilities with Program 2 or 3 processes would be required to contract with an independent third-party to perform a compliance audit after the facility has a reportable release. Compliance audits are required under the existing rule, but are allowed to be self-audits (i.e., performed by the owner or operator of the regulated facility).
  • Facilities with Program 3 regulated processes in North American Industrial Classification System (NAICS) codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) would be required to conduct a safer technology and alternatives analysis (STAA) as part of their PHA, and to evaluate the feasibility of any inherently safer technology (IST) identified. The current PHA requirements include consideration of active, passive, and procedural measures to control hazards. The proposed modernization effort continues to support the analysis of those measures and adds consideration of IST alternatives.

Emergency Response

  • Facilities with Program 2 or 3 processes would be required to coordinate with the local emergency response agencies at least once a year to ensure that resources and capabilities are in place to respond to an accidental release of a regulated substance.
  • Facilities with Program 2 or 3 processes would be required to conduct notification exercises annually to ensure that their emergency contact information is accurate and complete.
  • Facilities subject to the emergency response program requirements of subpart E of the rule (or “responding facilities”) conduct a full field exercise at least once every five years and one tabletop exercise annually in the other years. Responding facilities that have an RMP reportable accident would also have to conduct a full field exercise within a year of the accident.

Enhanced Availability of Information

  • All facilities would be required to provide certain basic information to the public through easily accessible means such as a facility Web site. If no Web site exists, the owner or operator may provide the information at public libraries or government offices, or use other means appropriate for particular locations and facilities.
  • A subset of facilities would be required, upon request, to provide the Local Emergency Planning Committee (LEPC), Tribal Emergency Planning Committee (TEPC)  [2] or other local emergency response agencies with summaries related to: Their activities on compliance audits (facilities with Program 2 and Program 3 processes); emergency response exercises (facilities with Program 2 and Program 3 processes); accident history and investigation reports (all facilities that have had RMP reportable accidents); and any ISTs implemented at the facility (a subset of Program 3 processes).
  • All facilities to hold a public meeting for the local community within a specified timeframe after an RMP reportable accident.
  • Proposes revisions to clarify or simplify the RMP submission.

Program 1 eligibility requirements. A covered process is eligible for Program 1 requirements as provided in §68.12(b) if it meets all of the following requirements: (1) For the five years prior to the submission of an RMP, the process has not had an accidental release of a regulated substance where exposure to the substance, its reaction products, overpressure generated by an explosion involving the substance, or radiant heat generated by a fire involving the substance led to any of the following offsite: (i) Death; (ii) Injury; or (iii) Response or restoration activities for an exposure of an environmental receptor; (2) The distance to a toxic or flammable endpoint for a worst-case release assessment conducted under subpart B and §68.25 is less than the distance to any public receptor, as defined in §68.30; and (3) Emergency response procedures have been coordinated between the stationary source and local emergency planning and response organizations.

Program 2 eligibility requirements. A covered process is subject to Program 2 requirements if it does not meet the eligibility requirements of either a Program 1 or Program 3 facility. 

Program 3 eligibility requirements. A covered process is subject to Program 3 if the process does not meet the requirements of a Program 1 facility, and if either of the following conditions is met: (1) The process is in NAICS code 32211, 32411, 32511, 325181, 325188, 325192, 325199, 325211, 325311, or 32532; or (2) The process is subject to the OSHA process safety management standard, 29 CFR 1910.119.

A public hearing on the proposed rule will be held on March 29, 2016.  Comments on the proposed rule are due on May 13, 2016.