Federal and Michigan laws dealing with hazardous wastes
are broad in scope, regulating everything from the generation, storage,
treatment, transportation, and disposal of hazardous wastes to the cleanup of
contamination at sites where these activities have been conducted. Hazardous
wastes include such diverse materials as waste solvents and acids, scrap
metals, used oil, fuels, paints and coatings, building debris, pharmaceuticals,
wastewaters, contaminated soil and groundwater, and many other industrial and
commercial wastes.
By far the greatest number of businesses and other
entities regulated are “generators” of hazardous waste, i.e., businesses that
“generate” or create the waste, which, in turn, triggers the regulatory
process. “Transporters,” “disposal facilities,” and other regulated entities are
far fewer in number and tend to be highly specialized. This chapter therefore
focuses on hazardous waste issues as they apply to generators. Further, most
legal practitioners who deal with hazardous waste law do so on a regular basis.
Because the legal practice is so complex and specialized, much of the
discussion in this chapter is summary in nature. This chapter, however, should
provide practitioners with enough information to spot the important issues.
The foundation and model for hazardous waste law is the
federal Resource Conservation and Recovery Act of 1976 (RCRA), 42 USC
6901 et seq. (which is part of the Solid Waste Disposal Act), together with the RCRA regulations, which begin at 40
CFR 260. With few exceptions, however, RCRA and the RCRA regulations do not actually apply in most states, including Michigan. Instead, under RCRA, most states, including Michigan, have been authorized by EPA to implement their own
hazardous waste laws and regulations “in lieu of” federal law. These
“authorized” state programs must be at least as comprehensive and as stringent
as federal law. 42 USC
6926(e). Most state programs closely resemble RCRA or even adopt the RCRA regulations by reference. In turn, RCRA regulations, case law and EPA administrative guidance are often used to help interpret state regulatory requirements.
Thus, in this chapter, while the Michigan regulation is cited as the starting
point, EPA regulatory preambles, letters, and other guidance are used to help
interpret those regulations. Typically, but not always, DNRE follows such
federal guidance.
Michigan’s hazardous waste law and regulations, closely
track the federal program. They are found at MCL 324.11101 et
seq.; R
299.9101 et seq. Because the law is found in Part 111 of NREPA, the law is often referred to as “Part 111.” EPA gave Michigan initial authorization to administer the hazardous waste program effective October 30, 1986. 51 Fed Reg
36,804 (codified at 40
CFR 272.1151). The initial authorization has been updated several times since then as state laws and regulations are amended to stay consistent with federal program updates.
Part 111 is intended to provide cradle-to-grave management
of hazardous wastes by regulating hazardous wastes from their generation
through their final treatment or disposal. Part 111 regulates by status and
waste-handling activity. Accordingly, there are regulations covering hazardous
waste (1) generators, (2) transporters, and (3) owners or operators of
treatment, storage and disposal facilities (TSDFs).
The first part of the regulations, however, deal with the
complex issue of identifying what are, and are not, regulated “wastes” and
“hazardous wastes.” See R
299.9201–299.9231. In order to determine whether a material is regulated as a hazardous waste, follow this progression:
· Is
the material a “waste”?
· Is
the material a “hazardous” waste?
· Does
an exemption apply to exclude the material from regulation?
To be a “hazardous waste” the material must first be a
“waste”. Although not defined in Part 111, “waste” is defined at length in the
rules. See R
299.9202. A “waste” is basically any “discarded material,” including materials that are abandoned, burned, incinerated or recycled, or materials that are accumulated before being abandoned, burned, incinerated or recycled. See R
299.9202(1). These materials are further subdivided into “spent materials,” “sludges,” “by-products” “scrap metal” and “commercial chemical products,” all
of which have distinct regulatory meanings. See R
299.9202(2); R 299.9101–9109. Several exemptions are included in the description of “waste,” as described in § 4.7 and
following.
On its face, the definition of “hazardous waste” in Part
111 is not very helpful:
“Hazardous waste” means waste or a combination of waste
and other discarded material including solid, liquid, semisolid, or contained
gaseous material that because of its quantity, quality, concentration, or
physical, chemical, or infectious characteristics may cause or significantly
contribute to an increase in mortality or an increase in serious irreversible illness
or serious incapacitating but reversible illness, or may pose a substantial
present or potential hazard to human health or the environment if improperly
treated, stored, transported, disposed of, or otherwise managed. Hazardous
waste does not include material that is solid or dissolved material in domestic
sewage discharge, solid or dissolved material in an irrigation return flow
discharge, industrial discharge that is a point source subject to permits under
section 402 of title IV of the federal water pollution control act, chapter
758, 86 Stat. 880, 33
U.S.C. 1342, or is a source, special nuclear, or by-product material as
defined by the atomic energy act of 1954, chapter 1073, 68 Stat. 919.
MCL
324.11103(3). This very broad definition does little to tell us exactly which materials are hazardous enough to warrant regulation as
hazardous wastes. Indeed, determining exactly which substances are regulated as
hazardous wastes under RCRA and Part 111 is anything but straightforward. The
statutory definition, however, provides a few important limiting concepts.
First, hazardous wastes consist only of those things that
are “discarded.” For example, products that are sold for money are not
“discarded,” and therefore are not “wastes,” but instead are used for their
intended purpose. Therefore, a new automobile rolling off the assembly line
obviously is not regulated as a hazardous waste. Less obvious, though, are
materials that are sold for recycling. DNRE sometimes deems these materials
“wastes,” other times not. Recycling is discussed in § 4.9.
Second, a waste must be “solid, liquid, semisolid, or
contained gaseous material” to be regulated as a hazardous waste. Therefore,
uncontained gases, such as air emissions from a smokestack, are not regulated
as “hazardous wastes,” although they may be regulated as hazardous air
emissions. See § 4.30. Air emissions
generally are regulated under the Clean Air Act and Part 55 of NREPA, not Part
111. See Chapter 1. Many gases contained in a cylinder, though, are regulated
as wastes if discarded.
Third, in order to avoid duplicative regulation, the
definition expressly exempts a few specific materials from regulation,
including certain materials already regulated under water pollution control
(see Chapter 2) and atomic energy laws.
Within these general confines, there are two basic types
of hazardous waste: “characteristic” hazardous wastes and “listed” hazardous
wastes, discussed in § 4.5 and § 4.6.
B.
Characteristic Wastes §4.5
A waste is a Part 111 hazardous waste if it displays one
of four hazardous characteristics: ignitability, corrosivity, reactivity, and
toxicity. R
299.9212. The tests for ignitability and corrosivity are specific. Ignitable
wastes, which are relatively common, are liquid materials with a flashpoint
below 140 degrees F, such as certain waste fuels and solvents. R
299.9212(1). Solids and gases may also be “ignitable,” but are less common. Corrosive wastes are defined by their pH — materials with a pH equal to or above
12.5, or equal to or below 2 — and include many acids and bases. R
299.9212(2). Corrosive wastes include only liquids, never solids. Many industrial cleaners fall into the corrosive category. The reactivity characteristic
is not as specific, but generally describes materials that are very unstable
and are capable of detonating under certain circumstances. R
299.9212(3). Materials that react violently or that generate toxic gases when mixed with water are a relatively common example of reactive wastes. There are
no specific laboratory tests for determining “reactivity” — instead, this waste
is identified through general knowledge of the material.
The last category of characteristic wastes are “toxic”
wastes. Toxic wastes contain or leach levels of toxic constituents above the
amounts specified in Table 201a, R
299.9217, provided below. For solids, and liquids containing material
levels of solids, a lab will subject the material to the “toxicity characteristic
leaching procedure,” also known as “TCLP” or “T-clip,” and compare the
resulting leachate to the constituent levels in Table 201a. For liquid wastes
that contain less than 0.5% filterable solids, the constituent levels in the
liquid itself (after filtering) are compared to Table 201a. For example, if
waste-contaminated soil is subjected to the TCLP and the resulting leachate
contains lead at a level greater than 5.0 milligrams per liter, the waste soil
is characteristically hazardous waste.
|
Table 201a
|
|
EPA Hazardous Waste Number
|
Chemical Abstract Services Number
|
Material
|
Extract Concentration milligrams per liter
|
|
D004
|
440-38-2
|
Arsenic
|
5.0
|
|
D005
|
7440-39-3
|
Barium
|
100.0
|
|
D018
|
71-43-2
|
Benzene
|
0.5
|
|
D006
|
7440-43-9
|
Cadmium
|
1.0
|
|
D019
|
56-23-5
|
Carbon tetrachloride
|
0.5
|
|
D020
|
57-74-9
|
Chlordane
|
0.03
|
|
D021
|
108-90-7
|
Chlorobenzene
|
100.0
|
|
D022
|
67-66-3
|
Chloroform
|
6.0
|
|
D007
|
7440-47-3
|
Chromium
|
5.0
|
|
D023
|
95-48-7
|
o-Cresol
|
200.0**
|
|
D024
|
108-39-4
|
m-Cresol
|
200.0**
|
|
D025
|
106-44-5
|
p-Cresol
|
200.0**
|
|
D026
|
--------
|
Cresol
|
200.0**
|
|
D016
|
94-75-7
|
2,4-D
(2,4-Dichloro-phenoxyacetic Acid)
|
10.0
|
|
D027
|
106-46-7
|
1,4-Dichlorobenzene
|
7.5
|
|
D028
|
107-06-2
|
1,2-Dichloroethane
|
0.5
|
|
D029
|
75-35-4
|
1,1-Dichloroethylene
|
0.7
|
|
D030
|
121-14-2
|
2,4-Dinitrotoluene
|
0.13*
|
|
D012
|
72-20-8
|
Endrin
(1,2,3,4,10,10-hexachloro-1,7-Epoxy-1,4,4a,5,6,7,8,8a octahydro-1,4-endo,
endo-5,8-dimenthano naphthalene)
|
0.02
|
|
D031
|
76-44-8
|
Heptachlor
(and its Epoxide)
|
0.008
|
|
D032
|
118-74-1
|
Hexachlorobenzene
|
0.13*
|
|
D033
|
87-68-3
|
Hexachlorobutadiene
|
0.5
|
|
D034
|
67-72-1
|
Hexachloroethane
|
3.0
|
|
D008
|
7439-92-1
|
Lead
|
5.0
|
|
D013
|
58-89-9
|
Lindane (1,2,3,4,5,6-hexa-chlorocyclo-hexane, gamma isomer)
|
0.4
|
|
D009
|
7439-97-6
|
Mercury
|
0.2
|
|
D014
|
72-43-5
|
Methoxychlor
(1,1,1-trichloro-2,2-bis(p-methoxyphenyl)ethane)
|
10.0
|
|
D035
|
78-93-3
|
Methyl ethyl ketone
|
200.0
|
|
D036
|
98-95-3
|
Nitrobenzene
|
2.0
|
|
D037
|
87-86-5
|
Pentachlorophenol
|
100.0
|
|
D038
|
110-86-1
|
Pyridine
|
5.0*
|
|
D010
|
7782-49-2
|
Selenium
|
1.0
|
|
D011
|
7440-22-4
|
Silver
|
5.0
|
|
D039
|
127-18-4
|
Tetrachloroethylene
|
0.7
|
|
D015
|
8001-35-2
|
Toxaphene
(C10H10C18, Technical chlorinated camphene,
67-69 percent chlorine)
|
0.5
|
|
D040
|
79-01-6
|
Trichloroethylene
|
0.5
|
|
D041
|
95-95-4
|
2,4,5-Trichlorophenol
|
400.0
|
|
D042
|
88-06-2
|
2,4,6-Trichlorophenol
|
2.0
|
|
D017
|
93-72-1
|
2,4,5
TP Silvex (2,4,5-Tri-chlorophenoxypropionic acid)
|
1.0
|
|
D043
|
75-01-4
|
Vinyl
chloride
|
0.2
|
A good starting point to determine whether a material has
one of the four hazardous characteristics discussed above is the material’s
Material Safety Data Sheet (MSDS). An MSDS, however, is written for the unused
material, and so consideration must be given as to how the material changes
through use.
C.
Listed Wastes §4.6
Listed wastes are wastes that have been named or described
by EPA and DNRE on lists of wastes included in the regulations. See R
299.9213. Listed wastes are assigned four-character waste codes that identify the waste for labeling, recordkeeping, and other purposes. For example, “still bottoms from the distillation of benzyl chloride” are designated as “K015.” Spent
methylene chloride is “F002.” R
299.9222 and R
299.9220. Listed waste codes start with one of four letters: F, K, P or U. F-listed wastes describe wastes from non-specific sources, i.e., almost any industry can generate them. Spent solvents from cleaning operations are the most
common F-listed wastes (F001–F005). K-listed wastes result from specific
production processes, for example, bottom sediment from wood preserving
operations (K001) or ammonia still lime sludge from coking operations (K060). P
and U-listed wastes refer to pure, undiluted and unused commercial chemical
products. For example, a drum of unused acetone being disposed because it is
slightly off-specification or because it is simply no longer needed is
designated U002. R
299.9225. To be a P or U-listed waste, the chemical listed must be pure, undiluted, or be the sole active ingredient in the material (chemical mixtures are never P or U-listed wastes).
1.
Exemptions from the Definition of “Waste” §4.7
Michigan regulations expressly list a number of materials
that are not “wastes” and therefore are not regulated under Part 111. R
299.9204(1). This list should always be consulted as a starting point. Some of the more common exemptions include:
· Domestic
sewage and any mixture of domestic sewage and other wastes that passes through
a sewer system to a publicly owned treatment works for treatment.
· Industrial
wastewater point source discharges regulated under the federal Clean Water Act
(except for discharges into injection wells).
· “Excluded
scrap metal” that is being recycled. Such exempt scrap metal typically includes
turnings, cuttings, borings and punchings from metal fabricating processes, as
well as any other metal that has been separated out by metal type for
commercial recycling.
Other common exemptions from the meaning of “waste” are
discussed in § 4.8 through § 4.12.
a.
Products and Coproducts §4.8
A legitimate “product” or “coproduct” of a production
process is not a “waste” subject to regulation. Determining what is the
intended “product” of a production process is typically simple — it is the
intended result of the production process that is either sold or used as a raw
material or intermediate material in other processes. Determining whether
something is a legitimate secondary or “coproduct” of a production process,
however, is less straightforward.
Neither EPA nor DNRE define “coproduct.” Rather,
“by-product” is defined as something other than a coproduct. 40
CFR 261.1(c)(3); R 299.9101(bb). In its preamble to the rule revising the definition of solid waste, EPA described
a coproduct as “a material produced for use by the general public and suitable
for end use essentially as-is.” Hazardous Waste Management System; Definition
of Solid Waste, 50 Fed
Reg 614 (January 4, 1985). Further, such materials are “produced
intentionally” and “are ordinarily used as commodities in trade by the general
public.” Id. In a 1993 letter, EPA pointed out that whether a fuel
component is a coproduct versus a by-product depends on several factors,
including:
whether the material constitutes a separate production
stream, whether it is fit for end use essentially as is or must undergo
substantial additional processing prior to use, whether it is residual in
nature or a highly processed material intentionally produced for sale to the
public, whether a legitimate market exists for the material, etc.
Letter from EPA to Susan S. Ferguson (November 3, 1993). Overall, several factors may be relevant when determining whether a material is a legitimate “coproduct,” including whether such materials (a) are handled
and managed similarly to other products, (b) are ordinarily used as commodities
in trade by the general public, (c) are fit for end use essentially as is, (d)
are produced intentionally and are a separate production stream, (e) contain
toxic impurities not typically found in virgin product, (f) meet product
specifications and quality control procedures before being sold, and (g) when
reused, whether such materials replace the same (albeit virgin) material.
b.
Reclaimed and Beneficially Reused §4.9
As set forth in Michigan’s regulations: “Materials that
are reclaimed from wastes and that are used beneficially are not wastes and
hence are not hazardous wastes . . . unless the reclaimed material is burned
for energy recovery or used in a manner constituting disposal.”[1]
R
299.9203(3); see also 40
CFR 261.3(c)(2). In addition, “[t]he recycling process itself is exempt from regulation, except as provided in subdivision (d) of this subrule.”[2]
R
299.9206(1); see also 40 CFR 261.6(c)(1). For example, waste solvents that are immediately distilled and beneficially
reused are not considered wastes upon exiting the distillation equipment.
c.
Reuse without Reclamation §4.10
“Materials” that are “used or reused as ingredients in an
industrial process to make a product, provided the materials are not being
reclaimed” or are “used or reused as effective substitutes for commercial
products” are exempt, the reason being that these materials are more
product-like than waste-like. R
299.9202(3). As in § 4.9, the exemption does not apply to
use as fuel or use constituting disposal. R
299.9202(4); see also 40 CFR 261.2(e). The language of the exemption itself, as well as some EPA guidance documents,
limits this exemption to situations in which the material is “not being
reclaimed”. US Envtl Prot Agency
RCRA/Superfund Hotline Monthly Summary (May 1992). Although somewhat unclear, other EPA guidance states that materials may be reclaimed, but, in such a case, the exemption does not attach until after the reclamation process is complete. Letter
from EPA to T.L. Nebrich, Jr. (March 30, 1994). Due to conflicting interpretations regarding whether reclamation is allowed, this exemption should be used with caution when materials need to be reclaimed before they are reused, or an
agency interpretation obtained before relying on the exemption.
There are three exemptions commonly referred to as “closed
loop”: the first does not involve reclamation, the second does, and the third
is a variance that DNRE can grant on a case-by-case basis.[3]
The closed loop exemption without reclamation states:
(1) Materials are not solid wastes when they can be shown
to be recycled by being: . . . (iii) Returned to the original process from
which they are generated, without first being reclaimed or land disposed. The
material must be returned as a substitute for feedstock materials . . . .
40
CFR 261.2(e)(1)(iii). This relatively straightforward exemption covers materials that are reused over and over again without any treatment or reclamation,
for example, recirculating coolant.
e.
Closed Loop with Reclamation §4.12
Perhaps the most important “reclamation” exemption is the
“closed loop with reclamation” exemption. This exemption allows spent or
secondary materials to be cleaned up and returned to the production process
without being regulated as wastes. Specifically:
The following materials are not wastes . . . (h)
Secondary materials that are reclaimed and returned to the original production
process or processes in which they were generated and where they are reused in
the production process, if all of the following provisions apply: (i) Only tank
storage is involved, and the entire process through completion of reclamation
is closed by being entirely connected with pipes or other comparable enclosed
means of conveyance. (ii) The reclamation does not involve controlled flame
combustion, such as occurs in boilers, industrial furnaces, or incinerators. (iii)
The secondary materials are not accumulated in such tanks for more than 12
months without being reclaimed. (iv) The reclaimed material is not used to
produce a fuel and is not used to produce products that are used in a manner
that constitutes disposal.
R
299.9204(1); see also 40
CFR 261.4(a)(8). EPA has justified this exemption based on the reasoning that “these types of operations are best viewed as part of the production
process, not as a distinct waste management operation.” Hazardous Waste
Management System; Standards for Hazardous Waste Storage and Tank Treatment
Systems, 51 Fed
Reg 25422, 25,441 (July 14, 1986) (Tank Rule). The exemption has also helped promote the in-house recycling and reuse of numerous production fluids, including solvents, rinse waters, oils, carriers and other chemical solutions, in a relatively safe (closed) fashion, to the benefit of the environment.
Two issues often combine, however, to negate the
applicability of the exemption. The first is whether the system is truly
“closed.” The second is whether the materials are returned to the original
production process.
On the first issue, EPA has provided mixed guidance,
sometimes in the same document. On one hand, the regulations clearly require
only that the system be closed or piped “through completion of reclamation.” On
the other hand, EPA appears to require at times that the entire loop be closed
from the point of generation to the point of return to the production process
(which in fact describes most closed loop systems).[4]
For example, in the 1986 preamble promulgating the exemption, EPA noted:
The decisive factors here, in the Agency’s view,
[include] the closed nature of the process (hard connections from point of
generation to point of return to the original process), [and the]
integral relationship of the reclamation steps to production processes . . . .
Tank Rule, 51 Fed Reg at 25,443 (emphasis added). Although
made in a somewhat general context, this statement supports the proposition
that the entire “loop” must be closed from beginning to end. A few years later,
EPA quoted this same statement to support its conclusion that secondary
materials trucked to a recycling site could not qualify for the closed loop
exemption. Memorandum from EPA to David Ullrich (September 12, 1989). Note, however, that EPA was dealing with a situation where the “gap” in the loop (i.e., the truck) came before reclamation, not after. Nonetheless, EPA did not
focus on the distinction. In US Envtl
Prot Agency, RCRA Orientation Manual III-11
(2003), however, EPA describes the closed-loop exemption as excluding “spent materials that are reclaimed and returned to the original process in an enclosed system of pipes and tanks” provided that “the
entire process, through reclamation, is closed to the air (i.e.,
enclosed)” (emphasis added). These two requirements appear to be at odds.
On the second issue, closely related to whether the
process is “closed” is whether the material is “returned to the original
production process.” Generally, the “original production process” refers to the
production process that generated the waste, but there is some room to
interpret the requirement broadly. Cf Letter
from US Envtl Prot Agency to Mr. Verrill Norwood, Jr. (October 29, 1985). In the 1986 rule promulgating the exemption, EPA noted:
To be considered as being ‘returned to the original
process,’ the reclaimed material need not be returned to the same unit
operation from which it was generated, but only to the same part of the
process. In addition, if the same material is reused in a number of production
operations at an integrated plant, and the secondary material is reclaimed in a
common reclamation operation, the reclaimed material can be returned to any
process which originally used the material . . . .
By production process, the Agency intends to include
those activities that tie directly into the manufacturing operation or those
activities that are the primary operation at an establishment . . . .
Tank Rule, 51 Fed Reg at 25,442. In a guidance letter, EPA
noted that “production process” entailed “those activities that tie directly
into the manufacturing operation or those activities that are primary to the
operation of an establishment. It does not include ancillary or secondary
activities that are carried out as part of the total activities.” Memorandum
from US Envtl Prot Agency to Mr. Robert L. Duprey (November 28, 1986).
While the material need not be reused in exactly the same
way as its original use, EPA has made clear that ancillary uses will not
qualify for the exemption:
The material that is returned after having been reclaimed
can be reused as a feedstock, as a purifying agent to remove contaminants from
feedstock, and can also be used for other purposes, including as a reaction
medium to dissolve or suspend chemicals, or as a reactant to facilitate chemical
reactions.
Tank Rule, 51 Fed Reg at 25,442. But in response to a
comment that EPA’s definition would exclude solvents used for dry cleaning or
equipment cleaning purposes, EPA stated:
EPA believes that solvents returned for use as cleaning
agents in dry cleaning operations will be considered to be reused in the
production process (as described earlier) since they are used as the basic raw
material in the process (in this case, cleaning). On the other hand, materials
used to clean equipment (for example, solvents returned and reused as
degreasers) are not normally considered to be reused in a production process. The
solvents do not contribute directly to the production process, but rather
perform an ancillary function of cleaning.
Id. Finally, it appears that 100% of the reclaimed
material must be reused for the exemption to apply. In 1997, EPA considered
whether a system that recovered spent ethyl acetate and xylene qualified for
the closed-loop exemption. Due to production constraints, only 80% of the xylene
recovered was reused on site — the remaining 20% was sold for use off-site. EPA
reasoned that because less than “100% of the product that is recovered[5]
is returned to the original process,” the exemption did not apply. Letter
from US Envtl Prot Agency to Mr. Mitchell L. Press (June 3, 1997). Accordingly, a business that wishes to rely on this exemption should ensure that all of the material recovered is reused.
2.
Exemptions from the Definition of “Hazardous Waste”: High Volume Low
Toxicity Wastes §4.13
Rule 299.9204(2) contains a long list of materials that, while “wastes,” are not “hazardous
wastes” and therefore are not regulated by Part 111. This list should be
consulted when determining whether a particular material is regulated.
Perhaps the most important materials on this list are
various high-volume, relatively low toxicity wastes associated with (i) mining
and mineral processing, (ii) cement manufacturing, (iii) fossil fuel
combustion, and (iv) oil and gas exploration. The first three categories are
sometimes referred to as the “Bevill”
exempt wastes and the fourth as the “Bentson” exempt wastes, in reference to
Congressmen who helped pass the exemptions.
Specifically, Rule
299.9204 exempts the following materials:
(2) The following wastes are not hazardous wastes for the
purposes of Part 111 of the act and these rules:
(c) Mining overburden that is
returned to the mine site.
(d) Fly ash waste, bottom ash
waste, slag waste, and flue gas emission control waste that is generated
primarily from the combustion of coal or other fossil fuel . . . .
(e) Drilling fluids, produced
waters, and other wastes that are associated with the exploration, development,
or production of crude oil, natural gas, or geothermal energy. . . .
(h) Waste from the extraction,
beneficiation, and processing of ores and minerals, including coal, phosphate
rock, and overburden from the mining of uranium ore . . . .
(j) Cement kiln dust waste . .
. .
Generally, only the primary wastes generated by these
activities are covered by the exemptions. Under current EPA guidance, EPA holds
that waste from “ancillary” operations are not covered by the Bevill exemption
because such wastes are not “uniquely associated” with exempt activities; for
example, the wastes are not “‘from’ mining or mineral processing.” Land
Disposal Restrictions Phase IV, 63
Fed Reg 28555, 28,578 (May 26, 1998). According to EPA:
One must consider the extent to which the waste
originates or derives from processes that serve to remove mineral values from
the ground, concentrate or otherwise enhance their characteristics or remove impurities,
and the extent to which the mineral recovery process imparts its chemical
characteristics to the waste.
Id. at 22,578–79. DNRE has adopted this “uniquely
associated” approach. See, e.g., Letter
from EPA to Jim Sygo (DEQ) (May 11, 1994). In this 1994 letter to the former DEQ (now DNRE), EPA expounded in regard to mining wastes:
The key consideration for establishing that a waste is
uniquely associated is determining whether or not the waste originates
primarily from, or, at the least, is significantly influenced by contact with
ores, minerals, or beneficiated ores and minerals.
* * *
Even wastes that may come into contact with parts of the
mineral feed stream, e.g., cleaning wastes, are not uniquely associated,
because their fundamental character does not arise from such contact.
Id. This logic would seem to apply to gas, oil, or
geothermal drilling and exploration-exempt wastes as well. Laboratory and shop
wastes are not Bevill exempt, even if generated at a mine or exploration site,
because such wastes are associated with any number of industrial activities,
not just mining, and therefore are deemed to be “ancillary” by EPA. 63
Fed Reg at 28,592–93 (maintenance shop wastes and laboratory wastes are not
exempt). See US Envtl Prot Agency
RCRA/Superfund Hotline Monthly Summary (November 1999) (laboratory wastes are not exempt); Memorandum from EPA to Carol Rustin (March 19, 1999) (laboratory wastes are not exempt).
EPA and DNRE have exempted from most hazardous waste
requirements wastes generated in product or raw material storage tanks and
pipelines, manufacturing process units (MPUs) and
non-waste-treatment-manufacturing units (NTMUs). Generally, this exemption
applies until the material “exits the unit”:
A hazardous waste which is generated in a product or raw
material storage tank, a product or raw material transport vehicle or vessel, a
product or raw material pipeline, or a manufacturing process unit or an
associated non-waste-treatment-manufacturing unit, is not subject to regulation
under parts 262 through 265 . . . . until it exits the unit in which it was
generated, unless the unit is a surface impoundment, or unless the hazardous
waste remains in the unit more than 90 days after the unit ceases to be
operated for manufacturing, or for storage or transportation of product or raw
materials.
40
CFR 261.4(c). This exemption makes sense, because it would be impossible to comply with hazardous waste “storage” requirements (see § 4.21), for example, for wastes that
are still moving about in process equipment.
According to EPA, MPUs are typically “tank-like” devices
associated with production processes that are designed to hold valuable raw
materials and therefore are “capable of holding, and are typically operated to
hold, the hazardous wastes which are generated in them, until the wastes are
purposefully removed.” Hazardous Waste Management System; General and
Identification and Listing of Hazardous Waste, 45 Fed Reg 72,025 (October 30,
1980). Thus, according to EPA, hazardous wastes in such devices present less risk of a release:
these hazardous wastes are contained against release into
the environment (except, of course, when abnormal circumstances such as a fire
or explosion occur) and the risks they pose to human health or the environment
are very low and are only incidental to the risks posed by the valuable product
or raw material with which they are associated.
Id. Therefore, there is less need for regulation of
MPUs. Id. Examples of MPUs provided by EPA include distillation columns,
flotation units, and discharge trays. Id. Comparably, NTMUs are systems
that manage or treat non-wastes — cooling towers are one example provided by
EPA. Id. EPA has determined that hazardous wastes are not regulated
until they are removed from MPUs and NTMUs. Letter
from US Envtl Prot Agency to Mr. Jack H. Goldman (March 8, 1995).
A key defining characteristic of MPUs and NTMUs is that
the units are connected to, and manage or treat, production process streams,
not waste streams. EPA makes this apparent and important distinction in the
hazardous waste Subpart BB final rule preamble:
Under 40
CFR 261.4(c), hazardous wastes that are generated in process-related
equipment such as product or raw material storage tanks or pipelines are exempt
from RCRA regulation. This exemption applies until the waste is physically
removed from the unit in which it was generated . . . This exemption is not
affected by this rule [i.e., Subpart BB]. Therefore, units such as product (not
hazardous waste) distillation columns generating hazardous waste still bottoms
containing organics are not subject to the standard while the wastes are in the
product distillation column. However, distillation columns that receive
hazardous wastes and that are used in hazardous waste treatment (i.e.,
hazardous waste management units) are subject to this standard . . . .
Hazardous Waste Treatment, Storage and Disposal
Facilities—Organic Air Emission Standards for Process Vents and Equipment
Leaks, 55 Fed Reg at 25,454, 25,467 (June 21, 1990). The process unit exemption also exempts from regulation a “product or raw material pipeline,” although there is little helpful guidance shedding light on the scope of this exemption. EPA added the phrase to the MPU exemption after numerous parties pointed out that major pipeline systems are used throughout the United States to
transport crude oil, chemicals and other valuable raw materials and products. Hazardous
Waste Management System; Identification and Listing of Hazardous Waste, 45 Fed
Reg 80,286 (December 4, 1980). According to EPA, “[p]ipelines, like product storage tanks, are designed and operated in a manner to hold the material and to prevent releases to the environment,” and therefore adding the exemption made sense. Id.
4.
Use Constituting Disposal §4.15
A number of the reuse exemptions discussed in § 4.9 and § 4.10 do not apply to materials that
are “used in a manner constituting disposal, or used to produce products that
are applied to the land.” 40
CFR 261.2(e)(2); R 299.9202(4). EPA guidance documents, federal register regulatory preambles, and state and federal
case law provide little helpful guidance concerning the meaning of “use
constituting disposal” or “applied to the land.” As background, the restriction
stems from concerns that many reuse practices involving land disposal are
“virtually the equivalent of unsupervised land disposal, a situation RCRA is
designed to prevent.” Hazardous Waste Management System: General, 48 Fed Reg
14,472, 14,484 (April 4, 1983). The restriction grew from a few high-profile and very damaging waste disposal cases, particularly the use of distillation bottoms containing dioxin as a dust suppressant in Times Beach, Missouri. Land Disposal Restrictions for First Third Scheduled Waste, 53 Fed Reg 31,138
(August 17, 1988).
Although EPA will often refer to the practice as placing
wastes “directly on the ground,” id. (emphasis added), it is
clear that indirect placement may also be restricted. Examples of the types of
practices prohibited include incorporating wastes into dust suppressants,
fertilizers, asphalt, concrete, fill materials, road base materials, top grade
road materials, landscaping timbers, fence posts, railroad ties, and well
solvent. At least some juxtaposition with the ground appears to be required. For
example, use of materials as “roofing granules” is not use constituting
disposal, even though such materials are obviously exposed to the weather. Letter
from US Envtl Prot Agency to Mr. William Guerry (December 1, 1992). In any case, practitioners should be wary and should exercise caution whenever a situation presents itself in which reclaimed waste materials will be used in such a way that exposure to the environment is possible.
Many of the exemptions and issues discussed in § 4.7 through § 4.15 may eventually become moot. In
October 2008, EPA published a final rule revising the definition of solid waste
to exclude materials from regulation that are generated and legitimately
reclaimed under the control of the generator, or that are generated and
transferred to another company for reclamation under specific conditions. Revisions
to the Definition of Solid Waste, 73
Fed Reg 64668 (October 30, 2008). At the time this chapter was written, however, the new rule had not yet been adopted by DNRE (and, accordingly, is not effective in Michigan), and was subject to several court challenges at the
federal level. If the rule survives the judicial challenges, it is expected
that DNRE will adopt the new rule, which will significantly simplify and
encourage waste recycling in Michigan.
Complicating the identification of “hazardous wastes” is
that fact that hazardous wastes are not limited to the particular hazardous
wastes themselves, but can also include mixtures of hazardous waste with other
materials or the residues from the handling of hazardous waste.
For example, per the “mixture rule,” when solid wastes are
mixed with hazardous wastes, the resulting mixture is often a hazardous waste. The
purpose of the mixture rule is to discourage waste dilution as a form of waste
treatment. When a listed hazardous waste is mixed with a solid waste, the
resulting mixture is a listed hazardous waste, except in very limited
circumstances.[6] When a characteristic
hazardous waste is mixed with a solid waste, however, the resulting mixture is
hazardous only if it exhibits a characteristic. Rule 299.9203(1).
A unique area of complication arises in regard to some of
the Bevill exempt wastes discussed in § 4.13.
The Bevill exemption has its own unique mixture rule:
(2) The following wastes are not hazardous wastes for the
purposes of part 111 of the act and these rules:
* * *
(i) Mixtures of a waste that is excluded from regulation
pursuant to the provisions of subdivision (h)[7] of this subrule and any
other waste that exhibits a hazardous waste characteristic pursuant to the
provisions of R
299.9212 and that is not listed pursuant to the provisions of R
299.9213 or R
299.9214, such that the resultant mixture does not exhibit any hazardous waste characteristic that would have been exhibited by the non-excluded waste alone if the mixture had not occurred.
R
299.9204(2)(i). This rule is difficult to decipher, but the following
examples are illustrative:
As the table illustrates, mixing even small amounts of
non-exempt hazardous wastes with similar Bevill-exempt wastes risks nullifying
the exemption.
An important consideration in applying the mixture rule is
that it applies only when hazardous waste is mixed with solid waste. It
does not apply when hazardous waste is mixed with other non-waste media, such
as soil or groundwater. In such a case, the “contained in” rule applies. The
“contained-in” policy is an interpretation, first articulated in the 1980s, of
the rule that “a hazardous waste will remain a hazardous waste . . . .” See
e.g., R
299.9203(3). Although never promulgated as law, the contained-in policy was
upheld at the federal level in Chem Waste Mgt v Environmental Protection
Agency, 276
US App DC 207; 869 F2d 1526 (1989). The Sixth Circuit (which includes Michigan) has not yet ruled on the policy’s validity. According to EPA and DNRE’s interpretation of the rule, soil that contains characteristic hazardous waste
due to a spill is hazardous waste only if it exhibits a characteristic of
hazardous waste. Soil that contains a listed hazardous waste, however, is
itself a listed hazardous waste unless the generator can show that all
contaminants are below Michigan’s former “Type B” cleanup criteria,[8]
which generally denote soils that are safe for any use.
EPA recognizes that knowing the source of contamination is
often necessary to determine whether the media contains listed hazardous waste.
Realizing this determination is often difficult or impossible to make, in 1998
EPA clarified the standard for determining when contamination is caused by
listed waste, and established a presumption in favor of non-listed status:
Where a facility owner/operator makes a good faith effort
to determine if a material is a listed hazardous waste but cannot make such a
determination because documentation regarding a source of contamination,
contaminant, or waste is unavailable or inconclusive, EPA has stated that one
may assume the source, contaminant or waste is not listed hazardous waste and,
therefore, provided the material in question does not exhibit a characteristic
of hazardous waste, RCRA requirements do not apply.
Memorandum from US Envtl Prot Agency on Management of
Remediation Waste under RCRA to RCRA Senior Policy Managers (October 1998). Therefore, if the evidence is inconclusive, the waste may be presumed to be non-listed. DNRE uses this standard.
Finally, any waste, including treatment sludge or residue,
generated or “derived from” the treatment, storage, or disposal of a hazardous
waste, is, as a general rule, itself a hazardous waste. R
299.9203(3). For example, a still bottom or sludge that results from the
recycling of a hazardous waste solvent will generally carry the same waste code
as that solvent. Waste derived from a characteristic waste, however, is a
hazardous waste only if it exhibits a characteristic. Waste derived from the
treatment, storage or disposal of listed waste, however, is almost always
listed, unless the original listing is based solely on the ignitable,
corrosive, or reactive nature of the waste (this applies most typically to F003
waste).
A corollary rule favorably applies to exempt wastes. Generally,
any waste, including sludge or residue, generated or derived from the
treatment, storage, or disposal of an exempt waste, is itself an exempt
waste. Therefore, a sludge generated through treatment of Bevill-exempt waste
is itself exempt, even if the sludge qualifies as characteristically hazardous
(so long as the characteristic came from the exempt waste). See, e.g., US Envtl Prot Agency RCRA/Superfund Hotline
Monthly Summary (February 1986) (quench water derived from contact with exempt coal ash is itself exempt); US Envtl Prot Agency RCRA/Superfund Hotline
Monthly Summary (February 1985) (caustic sludge derived from the treatment of Bevill-exempt mine drainage is itself exempt).
Universal wastes are common hazardous wastes that a
generator can choose to manage in a less complex manner. Universal wastes
include antifreeze, electric lamps (including fluorescent, sodium vapor,
mercury vapor, neon and incandescent lamps), batteries, certain pesticides and
pharmaceuticals, and certain devices containing mercury (including thermostats,
switches, thermometers, manometers, barometers, and various medical devices). There
are several advantages to managing wastes as universal wastes. When wastes are
managed as universal wastes, the waste volume is not counted when determining
hazardous waste generator status, hazardous waste manifests and land disposal
restriction forms are not required for shipping universal wastes, labeling
requirements are simpler, and materials can be stored for up to one year, which
is significantly longer than the general 90 day period allowed for hazardous
wastes. Overall, companies with universal wastes must meet the following
requirements: ensure that there are no spills or releases of the material
(e.g., provide a sufficient container for the material, keep it closed and
store it in a safe place), label the container “Universal Waste” (and add a
description of the type of waste), use an approved waste handler to ship the
material off-site, and keep records showing that the material has not been
stored for more than one year (often by listing a start accumulation date on
the container label). For more specific requirements, see R
299.9228.
For hazardous waste purposes, “used oil” includes all
synthetic oils and all oils refined from crude oil[9]
that, as a result of use, are contaminated by physical or chemical impurities.
Like universal wastes, used oil that is properly managed is not counted as a
“hazardous waste.” Used oil must be recycled — if it is not, then it must be
managed as waste and, if appropriate, as hazardous waste if it is
characteristically hazardous or meets a hazardous waste listing description
(e.g., because it has been mixed, even inadvertently, with listed waste).
To discourage businesses from disposing of used solvents
in their used oil, EPA and DNRE consider mixtures of used oil and halogenated
solvents (e.g., trichloroethylene) a hazardous waste. Therefore, generators of
used oil are required to determine whether their used oil has been
inadvertently mixed with such solvents. Any used oil that contains greater than
1,000 parts per million (ppm) total halogens is presumed to be hazardous waste
unless proven otherwise. Many used oil recyclers, as part of their service, run
total halogen tests on any used oil that they pick up. The entity generating
the used oil should keep a copy of such tests to prove that its used oil does
not exceed the 1,000 ppm standard.
Otherwise, to meet used oil requirements under Part 111, a
generator must:
· Recycle
all used oil through a legitimate recycling company.
· Store
all used oil in containers and tanks that are in good condition, without any
leaks, structural damage, or deterioration. All such containers and tanks must
be
§
closed (e.g., bung tightly in place) when not being filled or
emptied,
§
clearly marked “Used Oil” at all times, and
§
stored in a way that is protected from weather, fire, physical
damage, and vandals.
· Use
a liquid industrial waste manifest for all shipments of used oil off-site.
Note also that any scrap metal that contains free-flowing
used oil should be managed as “used oil.” Therefore, it is best to drain off
oil from scrap metal so that the oil can be managed separately (and the scrap
metal recycled).
Once a company or other entity determines that it
generates or creates either a characteristic or a listed hazardous waste, the
entity must “count” the waste to determine how much waste the entity generates
in any given calendar month. This calculation will determine the size category
of the generator and the corollary requirements applicable to the generator,
with generally more requirements applying as more wastes are generated.
Hazardous wastes are counted at their “point of
generation.” As a general rule, if a waste has not yet been “generated,” it is
not regulated and need not be counted. In one document, EPA notes that the
point of generation “is usually defined as the point at which a generator first
determines that a material is no longer useful (or the point at which the generator
decides to discard the material).” In the same document, though, EPA admits
“[d]ue to the complicated nature of some hazardous waste generating systems, it
can be difficult to determine the precise point at which a hazardous waste is
generated.” US Envtl Prot Agency,
Land Disposal Restrictions: Summary Of Requirements 8-1 (August 2001). Examples provided by EPA include when process equipment is cleaned (generating a wastewater), when waste is removed from pollution control equipment, and when paint or solvent is discharged from a paint spray gun into a collection funnel. Letter
from US Envtl Prot Agency to Mr. John Albert Slaughter, Jr. (December 30, 1986); Letter
from US Envtl Prot Agency to Mr. James A. Lively (October 19, 1995); Memorandum from US Envtl Prot Agency to RCRA Senior Policy Advisors, Regions I–X. Further, EPA generally places the point of generation somewhere before the waste commingles with other materials, which could change the characteristics of the waste. See Memorandum
from EPA to Stephanie Wallace (July 31, 1991).
As noted in § 4.15,
due to spills and other unintentional releases, soil and groundwater can be
hazardous waste. Because such media in their natural state are obviously not
“waste” (even if contaminated) and therefore cannot be “hazardous waste,” a
special “point of generation” rule applies. Such natural media are “generated”
only when they are “actively managed” — typically, by being excavated or pumped
from the ground. Therefore, the “point of generation” is the excavation or
pumping activity. On the other hand, managing such contamination “in place,”
for example, by installing an air sparging system to treat contaminated
groundwater, does not qualify as “active management” or the generation or
treatment of hazardous waste.
B.
Generator Size Categories §4.21
All facilities generating hazardous waste are divided into
three size categories for regulatory purposes: conditionally exempt small
quantity generators (CESQGs), small quantity generators (SQGs), and large
quantity generators (LQGs).
|
CESQG
|
SQG
|
LQG
|
|
Generates less than 100 kg (220 lbs) of hazardous waste
per month
|
Generates more than 100 kg (220 lbs) but less than 1000
kg (2,200 lbs) of hazardous waste per month
|
Generates over 1000 kg (2,200 lbs) of hazardous waste
per month
|
For perspective, twenty-six gallons of water (about half a
drum) weighs about 100 kilograms; 1000 kilograms is equivalent to about five
drums of water. Generators make a common mistake by counting the amount of
waste shipped off-site in a month instead of the amount of waste generated per
month.
Because the amount of waste generated from one month to
the next will vary, generators may find themselves regulated as a different
category each month. In such a case, a generator may want to comply with the
highest applicable category for every month, instead of trying to switch from
one set of requirements to the next. Alternatively, the generator should
investigate ways to average out or reduce waste generation in every month so
that it can always qualify for the lower applicable category.
Large quantity generators are subject to the most requirements.
Once a generator has properly identified the hazardous
waste generated on site and has determined that LQG requirements apply, the
first task is to ensure that all hazardous wastes are properly stored. An LQG
may store hazardous waste on site for only 90 days. Storage is typically done
in containers (i.e., a portable storage device, such as a drum) or tanks (a
fixed-in-place storage device). All containers or tanks must be protected, as
appropriate, from weather, fire, physical damage and vandals. Therefore, it is
generally not acceptable to leave hazardous waste drums outside in unfenced and
open areas. Sufficient aisle space must be provided between containers and
tanks to allow access to inspect the storage area as well as respond to
emergency spills.
For containers, the following requirements apply:
· All
containers of hazardous waste must be marked “Hazardous Waste” and be clearly
labeled with the date that accumulation began and the waste’s hazardous waste
number (e.g., D001, F003, etc.).
· The
generator must provide secondary containment (curbing, sloping floors, etc.) to
contain potential spills, with a volume equal to the greater of 10% of the
hazardous waste volume stored in the area, or 100% of the largest container in
that area.
· All
containers must be kept closed except when necessary to add or remove waste.
· All
containers must be in good condition and not leaking. LQGs must verify that
containers are not leaking, bulging, rusting, damaged or dented.
· All
containers must be compatible with the wastes stored in them. Therefore, for
example, LQGs should verify that strong caustics and acids are not stored in
metal drums (without liners).
· Containers
must be inspected weekly, with written documentation of such inspections.
· All
containers holding ignitable (D001) or reactive (D003) wastes must be located
at least 50 feet from the facility’s property line.
See generally R
299.9306; 40
CFR 262.34(a)(1) and 40 CFR 265.170 et seq.
ii. Tanks §4.25
The requirements for tanks mirror those for containers,
except for these differences:
· All
tanks of hazardous waste must be marked “Hazardous Waste.”
· The
generator must provide secondary containment for all hazardous waste tanks
holding liquids, consisting of either a liner, vault, or double tank:
§ for a liner, verify
that the liner will hold 100% of the tank’s capacity and that the liner does
not show any cracks or gaps,
§ for a vault, verify
that the vault will hold 100% of the tank’s capacity and that the vault is
impermeable with water stops at any joints, and
§ for double tanks,
verify that the tank has a leak detection system capable of detecting a leak
within 24 hours.
· All
threaded connections (i.e., not welded, plastic heat fused, etc.) associated
with tank ancillary equipment must also have secondary containment (e.g., a
trench, jacketing, double walled pipes, etc.).
· The
generator must have a written tank assessment conducted and certified by an
independent and certified engineer stating that the tanks have sufficient
structural integrity and are acceptable for the type of waste being
stored/treated.
· All
hazardous waste tanks must have overfill protection equipment, such as level
sensing devices or automatic feed shut-off valves.
· Any
leaks into secondary containment devices must be drained or cleaned up within
24 hours, or as soon as possible (apparently, that includes more than 24 hours
later)
· All
tanks and overfill protection equipment must be inspected daily, evidenced by
written documentation.
See generally R
299.9306; 40 CFR 262.34(a)(1) and 40
CFR 265.190 et seq.
iii.
Satellite Accumulation §4.26
It is often impracticable for small amounts of hazardous
waste to be delivered immediately into a tank or container meeting the
requirements described in § 4.25 and § 4.26. For instance, an employee at a
paint booth may generate a few ounces of spent solvent several times a day. It
makes little sense to have the employee make several trips throughout the day
to a hazardous waste container area. Recognizing this, EPA and DNRE both provide
for the “satellite accumulation” of hazardous wastes in containers at or near
the point of generation. Satellite accumulation allows a generator to
accumulate small amounts of waste, up to fifty-five gallons total, at the place
of generation without having to meet all storage requirements. Such a container
must be marked “hazardous waste,” be in good condition, and must be kept closed
except when waste is being added. It is also a good idea to mark the container
“satellite accumulation” so that a government inspector will instantly
understand the purpose of the container. Once any satellite accumulation
container accumulates fifty-five gallons of hazardous waste, the container must
then be marked with the date that the fifty-five gallon amount was first met,
and must be removed to a waste storage area with secondary containment within
three days of that date (at which point, all other waste storage requirements
apply). R
299.9306(2); 40 CFR 262.34(c).
Large quantity generators must ensure that all employees
that handle or are responsible for hazardous wastes are properly trained. New
employees must be trained within six months of hire and all employees must
receive annual refresher training. Such training must cover the proper
management of the waste as well as effective responses to hazardous waste
emergencies. The generator must keep a record showing the job title and
description for each employee by name, a written description of the type and
amount of both introductory and refresher training that will be given to each
employee, and verification that each such employee has actually received the
required training (e.g., provide a sign-in sheet). Training records must be
kept for each employee for three years after the employee last worked at the
facility. See generally R
299.9306(1)(d); 40 CFR
265.16.
Aside from general training, the LQG facility must be
prepared for a hazardous waste spill or other emergency. In this regard, an
“emergency coordinator” must be on premises or on-call at all times. More than
one employee may share this position to ensure that someone is always available,
although a “primary” coordinator should be designated. It is the emergency
coordinator’s responsibility to direct activities in the case of an emergency. Employees
must have quick access to the emergency coordinator’s contact information,
which must be posted near a telephone accessible to employees, along with a
description of the location of fire extinguishers and spill control materials,
the location of fire alarms (if present), and the telephone number for the
local fire department.
To assist the emergency coordinator, LQGs must have on
hand at all times an up-to-date written “contingency plan” that describes
actions to be taken in an emergency. The contingency plan must describe
arrangements made with local police and fire departments, hospitals, and other
relevant state or local coordinators; list the emergency coordinator’s name,
address and telephone number; describe the location of emergency equipment on
site;[10] and set forth an
evacuation plan (if evacuation could be necessary, depending on the types of
wastes handled on site). The plan must be submitted to any emergency
organization that could be called upon to assist, most typically the local fire
department. If wastes on site pose a significant fire hazard, it is a good idea
to invite the fire department for regular visits so that fire department staff
stay familiar with the site and can develop appropriate response strategies.
Finally, whenever an incident requiring the implementation
of the facility’s contingency plan occurs, the facility must record the details
of the incident in its records and notify DNRE within 15 days. If there has
been a release, fire, or explosion that could threaten human health or the
environment outside the facility, the facility must immediately notify local, state
and national emergency coordinators. See generally R
299.9306(1)(d); 40
CFR 265 Subpart D.
LQGs must have a site-specific identification number for
use on manifest forms and other records. An I.D. number is obtained by filing
form EQP5150 with DNRE. This form is available on the DNRE’s website. I.D.
numbers are location specific, not generator specific, and therefore the same
number is often used to identify one property even through a succession of
different property owners or operators. Form EQP5150 is also used to notify
DNRE regarding a change in ownership or a change in the generator’s size
category.
The LQG must use a waste transporter that is licensed to
haul hazardous waste, and, if some portion of the waste is liquid, liquid
industrial waste. A generator should inquire about the type and amount of
insurance that the hauler carries, and should ask whether wastes are stored for
long periods of time before being delivered to the ultimate disposal facility. Overall,
the generator should seek a level of comfort that the transporter is and will
take precautions to insure that a spill or other accident will not occur.
When shipping hazardous wastes off-site, a LQG must use a
paper manifest to track the shipment to the ultimate TSDF. Upon receipt by the
TSDF, the manifest is signed by that facility and a copy is returned to the
generator, which helps the generator verify that the shipment was actually
delivered as intended. A copy of the manifest must be sent to DNRE within ten
days after shipment. If the generator does not receive a TSDF-signed manifest
within 45 days of shipment, the generator must send an exception report to
DNRE. All manifest copies (including the signed version from the destination
facility) and exception reports must be kept for three years after shipment. See
generally R
299.9304.
Shipments must be prepared in such a way as to meet
Department of Transportation requirements including having DOT-approved
shipment placards available for use by the transporter (although in practice,
the placards are usually provided by the transporter). R
299.9305.
LQGs are required to file “Biennial Reports” with the DNRE
before March 1 of each even numbered year. These reports provide basic
information regarding the types and amounts of hazardous waste generated. Copies
of Biennial Reports must be kept for three years.
Most hazardous wastes are now restricted from land
disposal unless they meet treatment standards in the LDR regulations. R
299.9311. Generally, the LDR regulations, which can be exceedingly complicated to apply in practice (and, therefore, a full discussion is beyond the scope of this Chapter), govern any hazardous wastes that will be land disposed in any
way.[11] A generator of hazardous
waste must determine whether the waste must be treated before it can be land
disposed. This is done by determining if the hazardous waste meets the
treatment standards found at 40
CFR 268.40 and 40
CFR 268.48. Such a determination can be made in two ways: (1) through analytical testing or (2) by using knowledge of the waste. With the initial shipment of regulated hazardous waste to a TSDF, the generator must send a one-time
notice stating that the waste does or does not meet LDR treatment standards. A
copy of the notice must be kept in the generator’s files and no further notice
is needed until such time that the waste or the TSDF change. Note that special
LDR requirements apply to hazardous waste soil and debris. See R
299.9311; 40 CFR 268.7, 268.45, 268.49.
e.
Hazardous Air Emission Standards §4.30
Although Part 111 is not an air quality law per se, air
emissions from hazardous waste storage and handling equipment may be regulated
through Part 111. These regulations are known as the Subpart AA, BB and CC
regulations, which refer to the federal regulatory subparts adopted by
reference by Michigan law. The regulations are found at 40
CFR 264 Subpart A and 40
CFR 265.1030 (Subpart AA), and 40
CFR 265.1050 (Subpart BB), and 40
CFR 265.1080 (Subpart CC) and are adopted by reference by Rule 299.11003(2). Overall, the intent of the regulations is to avoid inadvertent leaks of volatile hazardous wastes to the air.
Subpart AA applies to hazardous waste handling equipment
with process vents. Specifically, generators (a) with tanks or containers (b)
that have process vents associated with distillation, fractionation, thin-film
evaporation, solvent extraction, or air or steam stripping operations, and (c)
that manage hazardous wastes with organic concentrations of at least 10 parts
per million (by weight) are required to meet Subpart AA air emission standards.
For generators, however, Subpart AA does not apply to recycling units exempt
pursuant to 40
CFR 261.6(c)(1), which exempts many recycling processes, or to equipment
that is in compliance with certain Clean Air Act standards. Therefore, the
practical application of Subpart AA to generators is limited, and the Subpart
applies mainly to licensed TSDFs.
Subpart BB sets forth leak detection and air emissions
standards for pumps, valves, pressure relief devices, sampling connection
systems, open-ended valves or lines, flanges, and other connectors associated
with generator tanks or containers. To be covered by the regulations, the
regulated devices must contain or contact hazardous wastes with organic
concentrations above 10% by weight for at least 300 hours per calendar year. Subpart
BB does not apply to recycling units exempt under 40
CFR 261.6(c)(1), or to equipment that is in compliance with CAA fugitive
emissions controls found in 40 CFR 60 (NSPS), 61 (NESHAPs), or 63. Among other
requirements, equipment subject to Subpart BB must be marked as such, be
inspected on a regular basis, and a first attempt at fixing any leaks must be
made within five days of detection. See 40 CFR 264 and 40
CFR 265.1050 for additional detail.
The air emission requirements most applicable to
generators are found in Subpart CC. Subpart CC applies to generator hazardous
waste tanks or containers if the generator is unable to demonstrate that the
hazardous waste stored in the unit contains average volatile organic
concentrations less than 500 ppm. Subpart CC, however, does not apply to any of
the following: (a) satellite accumulation containers, (b) containers smaller
than 26 gallons, (c) units exempt from Part 111 licensing requirements (e.g.,
wastewater treatment units), (d) recycling units exempt under 40
CFR 261.6(c)(1), and (e) tanks and containers operating with controls in
compliance with Clean Air Act standards. Because determining volatile organic
concentrations can be difficult,[12] it is often easier to
comply with Subpart CC by using the necessary tank and container controls,
which are usually not burdensome and generally consist of ensuring that all
containers and tanks have tight fitting lids that do not allow emissions to
escape. See 40 CFR 264 and 265.1080
for additional detail and requirements.
Small quantity generators (SQGs) of hazardous waste must
meet many of the requirements applicable to large quantity generators, although
such requirements are often simplified and written requirements reduced. Perhaps
the greatest difference from LQGs is that SQGs may store waste on site for 180
days[13] compared to the 90 days
allowed LQGs. Although LQGs are not limited in the amount of hazardous waste
stored on site, SQGs are limited to 6000 kg at any one time. Other differences
include:
· While
tanks and containers of waste still need to be inspected, SQGs do not need to
keep written documentation of the inspections.
· Secondary
containment for wastes is not required so long as the total amount of waste is
less than 1000 kg.
· While
a SQG must have a contingency plan, it need not be written or documented.
· Training
may be informal and no written record is necessary.
· No
biennial report is required for SQGs.
· Hazardous
air emission standards (Subparts AA, BB and CC) do not apply to SQGs.
See generally R
299.9303–9307.
In comparison to SQGs and LQGs, generators of less than
100 kg (220 lbs) of hazardous waste in any one month are classified as
“conditionally exempt small quantity generators” (CESQGs) and are subject to
relatively few regulatory requirements. Specifically, CESQGs are required to:
· Identify
all wastes to determine if they are hazardous.
· Ensure
that less than 100 kg (220 lbs) of hazardous waste is generated in any one
month.
· Ensure
that no more than 1000 kg (2200 lbs) of hazardous waste is accumulated on site
at any one time.
· Store
wastes in a manner that is protected from weather, fire, physical damage or
vandals, and in such a way as to prevent the escape or release of waste to the
environment.
· Verify
that all hazardous waste goes to a licensed hazardous waste treatment, storage
or disposal facility, a state licensed municipal land fill, or a facility that
legitimately uses, reuses or recycles the waste.
· Maintain
records showing that the facility is in fact a CESQG.
CESQGs do not have to use manifests to ship their wastes
unless those wastes qualify as “liquid industrial wastes.” Nor do CESQGs need
to have a hazardous waste contingency plan. The regulations applicable to
CESQGs are found at R
299.9205.
An entity that wishes to store hazardous wastes for a
period of time longer than that allowed generators, or that wishes to treat or
dispose of hazardous waste on-site, must be licensed. Such facilities are known
as “treatment, storage and disposal facilities” or “TSDFs,” and typically
include large manufacturing complexes, landfills and incinerators. Generally
speaking, the requirements applicable to generators apply to TSDFs, but TSDFs
are required to meet additional requirements. TSDFs are relatively rare
compared to generators, and the legal practice related to TSDF licensing is
highly specialized. Therefore, this Chapter does not describe TSDF
requirements, except for corrective action requirements (section VI below),
which can apply to generators and property owners as well as licensed TSDFs. The
licensing and regulatory requirements applicable to TSDFs are found in Parts 5,
6 and 7 of the rules, beginning at R
299.9501. TSDF licenses are currently issued by DNRE, but EPA occasionally must also issue licenses to Michigan facilities to cover portions of the RCRA program that EPA has not yet authorized DNRE to manage. Therefore, it is not
uncommon for a facility to have two TSDF licenses, one from EPA and one from
DNRE. There are two categories of licenses in Michigan: construction permits
and operating licenses, the intent being that an entity should apply first for
a construction permit authorizing the construction of the TSDF, then, after
completion of construction, governance switches to an operating license.
The so-called “interim status” facility is a facility that
requires a TSDF license, but does not have one. Interim status facilities were
much more prevalent when RCRA was first enacted, because many
then-currently-operating facilities needed licenses, but it took several years
for EPA and DNRE to issue them. Interim status requirements basically adopt and
mimic licensed facility requirements, and are found at R
299.9601(2). Some facilities can be “accidental” interim status facilities, i.e., they are conducting operations that require a license, but have not
applied for one.
Although RCRA and Part 111 focus on the proper management
of hazardous waste, both laws contain requirements to investigate and cleanup
contamination associated with waste management operations. These requirements
are known as “corrective action.”
Typically, corrective action applies to facilities that
have or have had a RCRA or Part 111 TSDF license at some point in their
history. EPA and DNRE usually take the position that once a facility formally
applies for a TSDF license, the facility is subject to corrective action unless
the application is formally withdrawn and such withdrawal is approved by the
issuing agency. Interim status and “accidental” interim status facilities are
also subject to corrective action. The agencies also usually take the position
that once a property is subject to corrective action, it is always subject to
corrective action, regardless of a change in ownership or the cessation of
waste management practices. Therefore, potential buyers of property must be
especially cautious when considering the purchase of property that could have
had, or that simply applied for, a TSDF license in the past, or that could have
been covered by the interim status regulations.
Although corrective action at large facilities often
entails multi-million dollar investigations and cleanups, the actual law and
regulations guiding the corrective action process are surprisingly slight. Federal
RCRA corrective action legal requirements are largely found in two statutory
sections and two relatively short regulatory sections. For licensed TSDFs, RCRA
provides:
Standards promulgated under this section shall require,
and a permit issued after November 8, 1984, by the Administrator or a State
shall require, corrective action for all releases of hazardous waste or
constituents from any solid waste management unit . . . .
42
USC 6924(u).[14]
Additional statutory corrective action authority provides:
Notwithstanding any other provision of this chapter, upon
receipt of evidence that the past or present handling, storage, treatment,
transportation or disposal of any solid waste or hazardous waste may present an
imminent and substantial endangerment to health or the environment, the
Administrator may bring suit . . . to order such person to take such other
action as may be necessary . . . .
42
USC 6973(a). The RCRA regulatory sections are found at 40
CFR 264.100 and 40
CFR 264.101. Numerous guidance documents on EPA’s website add detail to the legal framework. The primary guidance document for corrective action is an advance notice of proposed rulemaking published by EPA in 1996. See Corrective Action
Releases from Solid Waste Management Units at Hazardous Waste Management
Facilities, 61
Fed Reg 19432, 19,442 (proposed May 1, 1996). Although this document never led to an actual rulemaking setting forth a comprehensive corrective action program as intended, the long notice sets forth broad guidelines that are still used by EPA today.
Earlier in 1996, EPA delegated corrective action authority
to DNRE for all facilities with TSDF licenses. Michigan Final Authorization of
Revisions to State Hazardous Waste Management Program, 61
Fed Reg 4742 (February 8, 1996). Accordingly, most “corrective action” activities in Michigan currently fall under DNRE authority, and so Michigan facilities should focus on Michigan law and regulation.
Michigan defines “corrective action” as “an action
determined by the department to be necessary to protect the public health,
safety, or welfare, or the environment . . . .” MCL 324.11102(3). For licensed TSDFs, Michigan’s corrective action authority is found in section MCL 324.11115a(1) and (2) of Part 111:
(1) Beginning on June 4, 1992, the owner or operator, or
both, of a facility specified in this subsection is subject to corrective
action requirements specified in this part and the rules promulgated under this
part for all releases of a contaminant from any waste management unit at the
facility, regardless of when the contaminant may have been placed in or
released from the waste management unit. This requirement applies to a facility
for which the owner or operator, or both, is applying for or has been issued a
license under this part.
MCL
324.11115a(1). If DNRE determines “on the basis of any information” that
there has been a release of a “contaminant” from “any waste management unit at
the facility,” DNRE may require corrective action, including “that corrective
action be taken beyond the facility boundary if the release of a contaminant
has or may have migrated or otherwise has or may have been emitted beyond the
facility boundary.” MCL
324.11115a(2). Similar language for interim status facilities is found in sections MCL 324.11115a(3) and (4).
Two important terms in this requirement are “contaminant”
and “waste management unit.” A “contaminant” is defined as:
a.
a hazardous waste as defined in R
299.9203 of the Michigan administrative code; [and]
b.
any hazardous waste or hazardous waste constituent listed in appendix
VIII of part 261 or appendix IX of part 264 of title 40 of the code of federal
regulations.
MCL
324.11102. The term “waste management unit” (WMU) is meant to be synonymous with “solid waste management unit” (SWMU) under federal law. See R
299.9504(20). EPA defines a SWMU as:
Any discernable unit at which solid wastes have been
placed at any time, irrespective of whether the unit was intended for the
management of solid or hazardous waste. Such units include any area at a
facility at which solid wastes have been routinely and systematically released.
Corrective Action Releases from Solid Waste Management
Units at Hazardous Waste Management Facilities, 61
Fed Reg 19432 , 19,442 (proposed May 1, 1996). Note that management of “hazardous waste” is not required; solid waste will do. This application of corrective action requirements to essentially non-hazardous waste sources has been approved by the courts. Owen Electric Steel Co of South Carolina, Inc v Browner, 37 F3d 146, 148 (4th Cir 1994); American Iron & Steel Institute v Environmental Protection Agency, 280
US App DC 373; 886 F2d 390 (1989) (holding that although Bevill-Bentson wastes are exempt from hazardous waste regulatory requirements, such wastes are subject to corrective action).
Like the federal corrective action program, Michigan’s
Part 111 corrective action regulations are somewhat sparse, and are contained
largely in one rule. See R
299.9629. Therefore, it is not surprising that DNRE uses Part 201 cleanup processes to implement its Part 111 program (see § 4.37). Among other things, Rule 629
requires that an owner or operator “conduct corrective action as necessary to
protect the public health, safety, welfare, and the environment pursuant to a
corrective action program approved by the director.” R
299.9629(1). For contamination beyond the facility boundary:
Owners or operators shall implement corrective action
beyond the facility boundary if the releases . . . have or may have migrated,
or otherwise have or may have been emitted, beyond the facility boundary,
unless the owner or operator demonstrates, to the satisfaction of the director,
that, despite the owner’s or operator’s best efforts, the owner or operator is
unable to obtain the necessary permissions to undertake such actions. The owner
or operator shall not be relieved of all responsibility to clean up a release
that has migrated or been emitted beyond the facility boundary where access is
denied. On-site measures to address such releases shall be determined on a
case-by-case basis.
R
299.9629(2).
C.
The interplay between Part 111 and Part 201 of NREPA §4.37
Part 201 of NREPA is Michigan’s primary cleanup law. See
Chapter 5. If applicable, however, Michigan’s Part 111 corrective action
requirements generally take precedence. Michigan’s Part 201 exempts from Part
201 liability owners and operators subject to Part 111 corrective action
requirements:
[T]he following persons are not liable under this part
[201]:
The owner or operator of a hazardous waste treatment,
storage, or disposal facility regulated pursuant to part 111 from which there
is a release or threat of release solely from the treatment, storage, or
disposal facility, or a waste management unit at the facility and the release
or threat of release is subject to corrective action under part 111.
MCL
324.20126(4)(a). In turn, Part 111 states that “[c]orrective actions conducted under this part satisfy a person’s remedial action obligations under
part 201 . . . .” MCL
324.11115b. Note, however, that the baseline environmental assessment process, “innocent purchaser,” or other defenses to liability under Part 201 (and similar defenses under the federal Comprehensive Environmental Response,
Compensation, and Liability Act, 42 USC 9601 et
seq.) do not provide protection from Part 111 liability.
The practical difference between Part 111 corrective action
and Part 201 remediation is becoming less and less. The Part 111 corrective
action rules have always referenced and required compliance with Part 201
standards. See, e.g., R
299.9629(3)(a)(ii) and (iii). Outside the regulations, in 1998, EPA Region V sent a letter to DNRE recognizing “the State’s intention to use the new
Part 201 cleanup standards in the administration of the State’s hazardous waste
management program, including the closure and corrective action portions . . .
.” Letter from US Envtl Prot Agency to Mr. Jim Sygo, DNRE (June 5, 1998). This policy was confirmed and broadened in November 2000, when EPA Region V and DNRE (then known as the MDEQ) entered into a Memorandum of Understanding (MOU) sanctioning the DNRE’s use of Part 201 cleanup processes and criteria at corrective
action sites:
Region V . . . has determined that the MDEQ’s use of Part
201 clean-up standards and related processes . . . are an acceptable way of
achieving the objectives of the authorized Part 111 [corrective action]
program.
The MOU defines these “corrective action objectives” as
requiring (a) facility-wide assessments that address all releases on and
off-site of hazardous wastes or constituents into the environment from all
solid waste management units and areas of concern, (b) remedies that are
protective of public health and the environment, and (cd) meaningful
opportunities for public involvement. The MOU specifically contemplates the use
of Part 201 land-use based cleanups, restrictive covenants and institutional
controls.
DNRE has been working toward full use of Part 201
processes and criteria (and terminology) for corrective action purposes, and
TSDF licenses currently issued by the DNRE generally use Part 201 cleanup
terminology in place of RCRA terminology.
EPA and DNRE take the position that they can undertake or
require investigative activities at SWMUs and WMUs to determine whether there
has been an impact necessitating corrective action. See Nat’l Standard Co v
Adamkus, 881
F2d 352, 354 (7th Cir 1989) (upholding EPA’s inspection and sampling power at SWMUs under 42 USC
6927(a), with reference to the corrective action power at 42 USC 6924(u)). For example, according to current EPA regulations, a TSDF license must cover the following issues
for all SWMUs:
1.
The owner or operator of any facility containing one or more solid waste
management units must submit all available information pertaining to any
release of hazardous wastes or hazardous constituents from such unit or units.
2.
The owner or operator must conduct and provide results of sampling and
analysis of groundwater, land surface, and subsurface strata, surface water, or
air, which may include the installation of wells, where the Director ascertains
it is necessary to complete a RCRA Facility Assessment that will determine if a
more complete investigation is necessary.
40
CFR 270.14(d)(2) and (3).[15]If
no releases of contaminants are discovered during the investigation stage, then
no additional corrective action is necessary.
The RCRA/Part 111 corrective action process in the past
typically followed the path set forth below. Now that DNRE is using Part 201
processes to implement corrective action, however, the processes and
terminology in the second column are generally used instead. Overall, the
process starts with investigation, moves to remedy design, and then to
implementation of the remedy.
| RCRA/Part 111 |
Part 201 |
| preliminary assessment/visual site inspection/facility assessment |
preliminary assessment |
| RCRA facility investigation |
remedial investigation |
| interim measures |
interim responses |
| corrective measures |
study feasibility |
| corrective measures implementation |
remedial action plan |
| completion |
remedial action |
Each of these steps can require significant time and
expense. Complex sites can take several years or decades.
Case law interpreting corrective action requirements under
RCRA sets forth some restrictions on the reach of corrective action
requirements, however minimal. This case law supports the proposition that
investigations must be tailored to site-specific conditions in order to “avoid
imposing unnecessary or inappropriate burdens upon the permittee.” See In
the Matter of American Cyanamid Co (Kalamazoo, Mich), 3 EAD 657 (August 5,
1991). An owner or operator must also be shown to be connected to the contamination in question before imposing corrective action requirements. In In the Matter of Amoco Oil Co, 4 EAD 954
(November 23, 1993), EPA sought to require Amoco to investigate sediments in water bodies in the vicinity of Amoco’s facility, although, according to Amoco, there was no support for such a requirement. The court agreed with Amoco, noting
that there was “no evidence in the record” that these water bodies “may have
been affected by a release” and that the EPA had not “articulated a rationale
for stating that these water bodies must be studied.” In In re Caribe
General Electric Products, Inc, 8 EAD 696 (February 4,
2000), the court held that there must be a “sufficient nexus” showing that contamination has migrated from the facility to the area being investigated and that the contamination poses a threat to human health.
In February 2003, recognizing that some sort of finality
in regard to the completion of corrective action obligations would “benefit the
owner or operator, the community, and the regulatory agency,” EPA published
final guidance designed to assist RCRA-authorized states in acknowledging
completion of corrective action activities. Final Guidance on Completion of
Corrective Action Activities at RCRA Facilities, 68
Fed Reg 8757 (February 25, 2003). According to EPA, the catalyst for corrective action requirements is “protection of human health and the environment,” and therefore a determination that corrective action is complete is basically a determination that appropriate protective standards have been achieved. Id.
While nothing in Part 111 requires that corrective action
continue indefinitely, the regulations also do not provide a clear end-point to
corrective action obligations. Therefore, DNRE has generally adopted EPA’s
completion guidance and has begun issuing “corrective action complete” letters
to property owners and operators.
EPA’s guidance provides for two types of corrective action
complete determinations: “without controls” or “with controls.” A determination
“without controls” means that “no additional remedial activity would be required
on the part of the regulatory agency or the owner or operator to maintain
protection of human health and the environment . . . . Thus, the corrective
action requirements can be eliminated,” including financial assurance
mechanisms and restrictions on transfer. 68 Fed Reg at 8762. A determination
without controls is appropriate when there was no need for corrective action in
the first place (e.g., uncontaminated property), or where the remedy was
“implemented successfully.” Id. at 8761–62. “With controls” means that
while corrective action activities are no longer necessary, controls are needed
to ensure that the remedy remains protective, for example, through
institutional or engineering controls. Id. at 8758, 8762. Such a
determination is appropriate where (a) a full set of corrective measures has
been defined, (b) the facility has completed construction and installation, (c)
site-specific media cleanup objectives have been met, and (d) all that remains
is performance of required operation, maintenance, and monitoring activities or
compliance with, and maintenance of, institutional controls. An “enforceable
mechanism” (e.g., permit, order, etc.) must be in place to ensure compliance
with any necessary controls. Id. at 8762.
Although the idea is to provide finality, DNRE generally
adds “reopeners” to any completion letter for newly discovered contamination or
similar matters.
The enforcement provisions of Part 111 start are found
beginning at MCL
324.11144. Perhaps the most unusual enforcement-related requirement is found in subsection 11144(5), which requires that a “person who has knowledge that hazardous waste is being treated, disposed of, or stored in violation of this
part shall notify the department.” MCL 324.11144(5). This, arguably, places an affirmative duty on anyone (even lawyers) to report almost
any violation, although, taken to its extreme, the requirement borders on absurd.
It is doubtful that the legislature intended that every trivial violation be
reported to the DNRE, for example, reporting that a hazardous waste label on
one drum was not completely filled out (arguably a “storage” violation). Instead,
the legislature likely intended some sort of reasonable threshold of
significance before a report would be required — but maybe not. Practitioners
should be wary of this requirement and its interface with the Code of
Professional Responsibility.
Formal enforcement under Part 111 is relatively rare. Typically,
a matter will arise during a DNRE inspection and will be resolved relatively
informally through subsequent correspondence between the DNRE and the facility
involved.
The formal enforcement tools available to the DNRE and the
attorney general are significant. The department has both the express ability
to request information and inspect a facility, including the right to sample
hazardous wastes. MCL
324.11146. If an activity may present an “imminent and substantial hazard” or is “endangering or causing damage,” then the DNRE may issue an order requiring necessary corrective measures, initiate an administrative action to revoke
the facility’s license, or may request the attorney general to commence a court
action to obtain injunctive relief. MCL 324.11148. The attorney general “or a person” may also commence a civil action for any violation of Part 111, a Part 111 license, or the administrative rules. The circuit court in such an action has the power to restrain the violation or impose
up to $25,000 in fines per violation per day, to be deposited in the state
general fund.
Note that the EPA takes the position that it can
“over-file” or seek enforcement against any entity when the state fails to act,
invoking EPA’s underlying RCRA authority.
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