In the previous article of this series I described the requirements of 40 CFR 265.35 – Required aisle space. That section of Part 265 indicated what was needed to provide the necessary aisle space within a facility. This article will research and explain the next section of Part 265, that of 40 CFR 265.37 – Arrangements with local authorities. (Though §265.36 exists, it is reserved, so there are no regulations to review there currently).
40 CFR 265.37 reads:
(a) The owner or operator must attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations:
(1) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to roads inside the facility, and possible evacuation routes;
(2) Where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any others to provide support to the primary emergency authority;
(3) Agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and
(4) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.
(b) Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record.
Right off the bat, in §265.37(a), the regulation seems to set a very low threshold for compliance. An owner or operator (for the purposes of this article a large quantity generator or a small quantity generator of hazardous waste, but it could also include a hazardous waste Treatment, Storage, and Disposal Facility [TSDF]) need only “…attempt to make the following arrangements…”, further, as throughout §265, Subpart C, the attempted arrangements need only be, “…appropriate for the type of waste handled at his facility…” and the potential need for emergency response services. In other words, it is up to you as the generator of the hazardous waste to determine the hazards posed by the waste at your facility and what response may be required and then to attempt to make the arrangements with emergency responders. Also, with one minor exception discussed later, §265.37 does not require any form of documentation be created or record kept by the generator.
Before you get too relaxed, however, you should read a Memorandum dated March 5, 2010 from the USEPA to its regional RCRA directors. The purpose of this memo is to encourage the directors to require permitted TSDF’s to create written preparedness and prevention information (PPI) and to submit it to the appropriate state or local authority who may be called upon to assist in an emergency. The scope of this memo is limited solely to TSDF’s and makes no mention of hazardous waste generators, either LQG or SQG. However, the regulations it cites, §265.37 are those discussed in this article and apply to both LQG’s and SQG’s through the hazardous waste generator regulations at §262.34(a)(4) and §262.34(d)(4), respectively. At a minimum, I suggest an SQG look at the mandates of the memo as a recommendation and an LQG look at them as a very strong recommendation.
For the remainder of this article I will attempt to meld the requirements of 40 CFR 265.37 with what I interpret as the wishes of the USEPA as expressed in its Memo.
In order to ensure that emergency responders have the information necessary to safely respond to a hazardous waste emergency at your facility, §265.37(a)(1) specifies arrangements to familiarize them (eg. police, fire departments, and emergency response teams) with the following:
- The layout of the facility.
- Properties of hazardous waste handled at the facility and associated hazards.
- Places where facility personnel would normally be working.
- Entrances to roads inside the facility, and possible evacuation routes.
The USEPA Memo, however, does not feel this goes far enough for a TSDF and may not feel it is enough for you either. Instead, it wants a PPI to be provided to the local emergency responders identified in §265.37(a)(1) and to state authorities as well. This PPI should be in addition to other means that may be used to comply with the regulation such as facility visits and walk-throughs. The USEPA acknowledges that the information provided will vary depending on site-specific conditions, but recommends it contain the following information:
- Waste types (ignitable, corrosive, reactive, & toxic) and names.
- Approximate quantities of each waste type.
- General locations of waste at the facility.
- Layout of the facility.
- General locations within the facility where personnel normally work.
- Entrances and roads inside the facility and possible evacuation routes.
It is not addressed specifically by the USEPA Memo, but §265.37(a)(2) puts the responsibility on you (the LQG or SQG) to determine if more than one police or fire department may respond to an emergency at your facility and to designate which will be the primary emergency responder. You must also reach an agreement with any entity that may provide support to the primary emergency authority. The intent here is to avoid any possible confusion between responding authorities at the time of the emergency. Also, by designating the primary emergency responder for your facility you may then familiarize them with the conditions and potential hazards they might expect from a hazardous waste emergency at your site.
Compliance with §265.37(a)(3) will depend, at least in part, on whether or not your state still has an active emergency response team available to assist you in the event of a hazardous waste emergency; many have been lost to budget cuts. However, if a state emergency response team is available and may be called upon, then you must reach an agreement with them as to the appropriate response to a hazardous waste emergency at your facility. Similarly, if you intend to use a emergency response contractor or equipment supplier (eg. absorbants, earth-moving equipment, etc.), then you must also reach an agreement with them to ensure their timely response in the event of a hazardous waste emergency.
It is interesting to note that the USEPA Memo does not take into account the difference in the language of the regulations between §265.37(a)(1), ie. “Arrangements to familiarize…” and §265.37(a)(3), ie. “Agreements with…” Instead, it states that the PPI should be made available to state and local responders in advance and in writing. Therefore, though §265.37(a)(3) does not require it and the USEPA Memo does not directly reference LQG’s & SQG’s, I recommend you provide written preparedness and prevention information (the PPI) to the entities identified in §265.37(a)(3) in the same fashion as you did to the local responders identified in §265.37(a)(1).
As a side note, based on personal experience I strongly recommend that if you intend to rely on a private company to assist you with an emergency at your facility (emergency response contractor or equipment supplier), that you make any legal/financial/contractual arrangements prior to the emergency. I’ve seen it happen where in an emergency critical emergency response time is lost obtaining the signatures of company officials and other documents before the emergency response contractor or supplier will dispatch personnel to assist you.
The personnel of a hospital where injured employees may be taken do not need to know the layout of your facility or the location of hazardous waste storage areas, and so §265.37(a)(4) reads, “Arrangements to familiarize local hospitals…” with the properties of your hazardous waste and the types of injuries that could result from a hazardous waste emergency. This differs from §265.37(a)(1) which requires information about your site. However, once again the USEPA Memo does not make a distinction between information provided to the entities in (a)(1), “…police, fire departments, and emergency response teams…” and “local hospitals” in (a)(4). My recommendation based on the USEPA Memo is that all receive the PPI.
Up until this point of §265.37 there has been no mention of a document or recordkeeping (Remember, the USEPA Memo is a recommendation addressed specifically to TSDF’s). However, in §265.37(b) we read of the requirement to document in the operating record any time a state or local authority declines to perform a role as an emergency responder for a hazardous waste emergency at your facility (ie. the “arrangements” and “agreements” referred to in §265.37(a)). The “operating record” is not clearly defined, but it can be understood in this context to be a compilation of files, forms, records, reports, databases, maintenance activity, & etc. related to the operation of your facility.
In closing, each facility (TSDF, LQG, or SQG) must decide for itself what level of preparedness and prevention it will meet. Based on the regulations of 40 CFR 265.37, a owner or operator must only attempt to make the arrangements and agreements with the identified state and local emergency authorities. However, the USEPA Memo indicates a higher level of responsibility specifically for the TSDF, and by my interpretation, a strong recommendation for both LQG’s and SQG’s. How the USEPA regional offices and your state may enforce these regulations is anyone’s guess.
Compliance with 40 CFR 265.37 will likely create some documents in the form of letters, interviews, phone conversation logs, operating records, the PPI, and more. In another article I’ll explain what’s to be done with these documents and which ones should be kept as a record to demonstrate compliance.
All three facilities identified in this article: Treatment, Storage, and Disposal Facilities (TSDFs), Large Quantity Generators of hazardous waste (LQGs), and Small Quantity Generators of hazardous waste (SQGs) will require some form of Hazardous Waste Personnel or RCRA Training. Let me provide this training for you and answer your questions besides. Contact me for a free training consultation.