In an earlier article we looked closely at the applicability determination for the Subpart C regulations (265.30) and learned that the requirements of this subpart apply to only the following:
- Permitted TSDF’s.
- Large Quantity Generators of hazardous waste.
- Small Quantity Generators of hazardous waste.
This article will look at the next section of this part (265.31 – Maintenance and operation of the facility).
40 CFR 265.31 reads:
Facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.
This section states the overall goal of this Subpart: to prevent damage to human health or the environment due to a release of a hazardous waste, but it does not establish any specific procedures to accomplish this goal. In my experience, a general requirement of this sort is used by USEPA, and a lot of other regulatory agencies, to give it a fall-back position for an enforcement action if a facility complies with the letter of the regulations (found in the remaining sections of this Subpart) and not its spirit. So, you could be in compliance with the requirements of 40 CFR 265, Subpart C; but if a hazardous waste release occurs that results in harm to a person or damage to the environment, you may discover that the USEPA accuses you of being in violation with §265.31. Let’s take a closer look at the wording, terms, and phrases used in this section of the HMR.
“…maintained and operated…” This refers to all aspects of facility maintenance and operation, not just those directly related to the management of hazardous waste.
“…to minimize the possibility…” Thus, prevention of occurrence is not required, merely efforts to reduce the chances of a prescribed incident.
“…fire, explosion…” Not just a spill or release of hazardous waste. And, note that these two prescribed incidents precede any reference to hazardous waste. It could, therefore, be interpreted that you may be held responsible for fires or explosions that are not related to the hazardous waste you generate.
“…or any unplanned sudden or non-sudden release of hazardous waste…” Here is the first reference to hazardous waste as a source of a prescribed incident. The release must be unplanned, and thus not part of a permitted discharge to the water or emission to the air. And it may be a sudden or non-sudden release, meaning that it may be the type of catastrophic event you can’t help but notice right away (an open 55-gallon drum hazardous waste is knocked over) or something that may take place, and go unnoticed, over a longer period of time (the slow leak of a hazardous waste from a container or tank).
“…or hazardous waste constituents…” Not necessarily hazardous wastes, but the components of a hazardous waste. Thus if a hazardous waste were to degrade or leach from an accumulation unit in such a way that only the constituents of the original hazardous waste were detected, you would still be in violation of this regulation.
“…to air, soil, or surface water…” Thus a spill that evaporates (release to the air) before it can be recovered is a violation, just as a release to soil or surface water would be. This may also be interpreted to mean that not every spill of a hazardous waste is a “release” covered by Subpart C. If a “spill” can be contained and cleaned up properly, it may not become a “release”.
“…which could threaten human health or the environment.” The final condition of this regulation. Arguably, any fire, explosion, or release as described in this section would not be a violation if it does not threaten human health or the environment. However, this condition is quite subjective, and given the nature of hazardous waste, it is unlikely that any fire, explosion, or release would not threaten either human health or the environment in some way.
Sometimes a close reading of a particular regulation can lead to a deeper understanding of the regulations and what the USEPA expects of the regulated industry. Be sure to read all applicable regulations closely – especially those at 40 CFR 262.34(a)(4) and §265.16 that require you to annually train all Facility Personnel – and stay tuned for the next article in this series where we’ll look at 40 CFR 265.32 Required equipment, which is much more specific in its requirements.
As always, don’t hesitate to contact me with any questions about the hazardous waste regulations of the USEPA or the HazMat transportation regulations of the USDOT/PHMSA.