If you are involved with the transportation of hazardous materials/dangerous goods between the US and Canada or just interested in our neighbor to the north, you should be aware of the Dangerous Goods Regulations (DGR) of Transport Canada.  One way to maintain an awareness-level knowledge of the status of transportation regulations north of the border is to subscribe to the TDG Newsletter. (more…)

By now everyone in the industry has heard about GHS and how it will affect the management of hazardous chemicals in the US.  Since my training and expertise is currently limited to the regulations of the USEPA (and authorized States) and the PHMSA of the USDOT, I have strived to stay away from this revision to OSHA’s regulations.  However, too many questions from too many people has convinced me that I can ignore it no longer.  Also, though currently minor, GHS has affected the Hazardous Materials Regulations of the PHMSA/USDOT.  And though not likely to become significant in the near future, there is the distinct possibility that future updates to the HMR will be affected by the current GHS.  While not an expert in GHS and HazCom, the purpose of this article is to assemble in one place a variety of questions and answers those in the regulated industry are likely to have. (more…)

Read on for the news release from the USEPA, then read my articles that explain the reporting requirements that Amalgamated Sugar did not complete:

• Reporting Releases of Hazardous Substances and Extremely Hazardous Substances
• The Notification Requirements for Reporting a Release Under CERCLA & EPCRA

News Release: Amalgamated Sugar settles for failure to immediately report the release of chlorine gas into the environment

03/13/2013

 Contact Information: Hanady Kader, EPA Public Affairs, 206-553-0454

(Seattle—March 12, 2013)   The U.S. Environmental Protection Agency (EPA) reached a settlement with Amalgamated Sugar Company LLC (Amalgamated Sugar) for failing to properly report the release of dangerous chlorine gas at its Paul, Idaho facility.  Amalgamated Sugar, a sugar manufacturing facility that processes sugar beets, will pay $18,000 in penalties.

According to the settlement, plant operators did not immediately notify federal and state authorities about the chlorine gas release.

“Companies need to notify the appropriate agencies right away so emergency personnel can quickly respond to these hazardous chemical releases,” said Ed Kowalski, Director of EPA’s Office of Compliance & Enforcement in Seattle. “Failure to do this puts not only employees, but the community at risk.”

The release on February 7, 2012, was caused when a chemical truck driver mistakenly unloaded hydrochloric acid into the tank containing sodium hypochlorite. When mixed, the chemicals caused a violent reaction which blew the access lid off the tank, emitting 43 pounds of chlorine gas into the atmosphere.  According to Amalgamated Sugar, the driver was injured and evacuated by ambulance. The company’s notification to state and federal authorities was over 46 hours late.

Chlorine is a toxic gas that attacks skin, eyes, throat, and lungs and can cause serious injury or death in extreme cases.

The chlorine release and the failure to notify appropriate agencies are violations of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).

For information on EPA’s Emergency Planning and Community Right to Know Act, visit  http://www.epa.gov/oecaagct/lcra.html

For more about toxic effects of Anhydrous Ammonia (NIOSH GUIDE): http://www.cdc.gov/niosh/npg/npgd0115.html

Residual waste does not include:

• Sanitary sewage
• Uncontaminated non-contact cooling water
• Office, lunchroom, restroom wastes
• Construction and demolition debris

If you generate a residual waste you must comply with the applicable state laws and regulations in 25 PA Code, Subchapter B.  Your regulatory burden will depend upon the amount of residual waste you generate.  A summary of the regulatory requirements are below.

If at any site in the previous year you generated more than an average of 2,200 lbs of Residual Waste per month, you must:

1. Submit the biennial report per §287.52.
2. Prepare a source reduction strategy per §287.53.

And/or, if at any site in the previous year you generated more than 2,200 lbs of an individual Residual Waste in any single month, you must also complete the required chemical analysis of waste per §287.54.

The requirements of §287.52-54 don’t apply to waste generated in the following manner:

• Residual waste generated as a result of collecting the waste.
• Waste created from a spill, release, fire, accident, or other unplanned event.
• Oil used as a lubricant in an internal combustion engine or for other lubricating in a motor vehicle which is unsuitable for further use.

If you store residual waste at your site (its point of generation) for any period of time, you must also comply with the requirements of Chapter 299, which require generators of residual waste to…

• Routinely inspect their facility and maintain records of inspections (§299.112).
• Store for no more than one year, unless you wish to be considered a residual waste disposal facility (§299.113).
• Prevent it from becoming a nuisance (§299.115).
• Manage storm water runoff and prevent groundwater degradation (§299.117).
• Manage in either containers (§299.121) or tanks (§299.122).
• Whether managed in containers or tanks, residual waste must be labeled as “Residual Waste” and the type of residual waste identified.

Chapter 299 contains more information specific to other management units for residual waste:

1. Storage piles.
2. Impoundments.

It also contains requirements for specific types of waste:

1. Ash residue from residual waste incineration.
2. Friable asbestos.
3. PCB waste.
4. Waste tires.

These state laws and regulations are enforced by the PA DEP by conducting on-site investigations, responding to complaints, and prosecuting violators.  Compliance with Pennsylvania’s (or any State’s) regulations for non-hazardous waste requires a thorough knowledge of the State regulations and the workings of the State Agency (in this case the PDEP).  While I refer to State regulations in my public training workshops, it is in my on-site training that I really dig deep into what you need to know about State and Federal regulations.  Contact me to discuss the training you need for your facility.

A release of a Hazardous Substance above the RQ at your facility or during transportation must be reported to the applicable Federal, State, and local emergency response agencies.  To perform the required reporting it is necessary to understand the two separate Acts/regulations that created them and their inter-relation.

The Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA) also known as Superfund, passed in 1980 created a list of Hazardous Substances along with threshold amounts in lbs/kg that triggered reporting if released into the environment in a 24 hour period.  EPCRA (The Emergency Planning and Community Right to Know Act) was passed in 1986 in the wake of the release of a toxic pesticide in Bhopal, India that killed thousands of people.  The purpose of EPCRA was to increase the public’s access to information about the hazardous substances that are or had the potential to be released to the environment.  It also created a list of Extremely Hazardous Substances with their own reporting thresholds and expanded the notification process in the event of a release of a Hazardous Substance (which continued to be regulated under CERCLA as well).

This 1-2 punch of legislation created two sets of regulations that, at times, overlap in their reporting responsibilities.  In the event of a spill or release – either on your property or off – you must be aware of your reporting responsibilities under the applicable regulations.

The table below outlines and summarizes the regulations of CERCLA found at 40 CFR 302 and EPCRA found at 40 CFR 355.

So, in the event of a release of a substance above the RQ in a 24 hour period…

• If it appears only on the CERCLA list (aka:  Hazardous Substance), you must complete the reporting requirements of both CERCLA and EPCRA.
• If it appears on both the CERCLA list (aka:  Hazardous Substance) and the EPCRA list (aka:  Extremely Hazardous Substance), you must complete the reporting requirements of both CERCLA and EPCRA.
• If it appears only on the EPCRA list (aka:  Extremely Hazardous Substance), you must complete the reporting requirements of EPCRA only.

Both CERCLA and EPCRA require you to report a release of a Hazardous Substance or Extremely Hazardous Substance (EHS) above its Reportable Quantity (RQ) in a 24 hour period.  Read:  Reporting Releases of Hazardous Substances and Extremely Hazardous Substances.  Also: What Does CERCLA Identify as a Hazardous Substance?

Notification takes two forms:

• Immediate notification by owner, operator, or person in charge to the NRC, LEPC, and SERC.
• Written follow-up notification(s) to LEPC and SERC “as soon as practicable after the release“.

What is meant by immediate?  And what is meant by:  “as soon as practicable after the release“?  This article will shed some light on these very important requirements. (more…)

How long are you required to retain a Material Safety Data Sheet (MSDS) for the hazardous materials in use at your facility?  Forever?  30 years?  Only until you stop using the material?  A complete answer to that question requires a full understanding of the applicable standards of the Occupational Safety & Health Administration (OSHA) and the intent of the regulations.

The quick answer is: yes, 29 CFR 1910.1020 requires you to maintain some record of the identity of the Toxic Substance or Harmful Physical Agent to which employees are exposed for 30 years after the last day of its use.  Note that it does not mandate the use of an MSDS, just “some record”, it is on this point that this simple requirement can become complicated.  OSHA’s intent is to have the employer make important health-related information accessible to current and former employees for as long as it thought might be necessary, this created the retention period of 30 years.  OSHA also wanted employers to include information about when and where the chemical or substance was used.  This last point was resisted by employers, so OSHA compromised and gave employers two options for retaining the information (OSHA letter of interpretation 11.8.85):

1. The MSDS, or
2. The identity of the material (technical name if known) and information about where and when it was used.

Whichever method you choose, your obligation to maintain the information doesn’t end with closure or sale of the facility.  In such an event you must transfer all records to the new employer or to the Director of the National Institute for Occupational Safety and Health (NIOSH).

You must keep these records accessible to current and former employees.  If you are unable to provide access to these records within 15 working days, you must tell the employee the reason for the delay and the earliest date you will make records available.

A possible point of confusion is the requirement in the Hazard Communication Standard @ 29 CFR 1910.1200 to make MSDS’s readily accessible to employees during their work shift.  here the regulations clearly require an MSDS, no other form of information will suffice.  For most employers, since they must comply with the Hazard Communication Standard anyway, it is easiest to retain those same MSDS’s to comply with the requirements of record retention in 29 CFR 1910.1020.

If you either ship or receive a hazardous material, including a hazardous waste, then you must also comply with the regulations of the US Department of Transportation and train your HazMat Employees every three years.  I provide  HazMat Employee Training and RCRA Training for Hazardous Waste Personnel.  Review my public/open enrollment training schedule or contact me to discuss on-site training.

RCRA – the Resource Conservation and Recovery Act – was passed in 1976 to amend the Solid Waste Disposal Act of 1965 and to address a growing national concern over the improper management and disposal of both hazardous and non-hazardous waste.  Subtitle C of RCRA established a system to manage by regulation a hazardous waste from its moment of generation through transportation to its treatment, storage, and finally, disposal.  The name for this comprehensive management system is:  Cradle to Grave.

• Point of Generation = “Cradle”
• Transportation to Treatment, Storage, or Disposal = “to”
• Treatment, Storage, and Final Disposal = “Grave”

While RCRA regulates the generation, transportation, and disposal of hazardous waste, it also has the authority to clean up hazardous waste from active facilities.  RCRA does not, however, have the authority to address the problem of hazardous waste at inactive or abandoned sites or those resulting from emergency response to spills.  Enter CERCLA.

CERCLA – the Comprehensive Environmental Response, Compensation and Liability Act of 1980 – aka:  Superfund, was created to address the problem of hazardous waste and hazardous substances at inactive or abandoned sites or those resulting from emergency response to spills.  It was amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986.  Upon a site becoming subject to its regulations (ie. a Superfund Site), CERCLA imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site.  In other words, if you had anything to do with a hazardous substance ending up at a Superfund Site, either by transporting it their yourself or by contracting with others to do it for you, you have the potential to be identified as a Potentially Responsible Party (PRP) and be held responsible for the entire cost of cleaning up the site.  CERCLA’s authority in these matters is broad and has been upheld by the courts.

A generator of hazardous waste must know about CERCLA/SARA as well as RCRA because CERCLA has the authority to force a generator to clean-up a polluted site or scene of an emergency response spill if that generator ever sent any of its hazardous waste to that site.  But it goes further.  CERCLA regulates hazardous substances, not just hazardous waste.  The definition of a hazardous substance includes a hazardous waste, but it also includes 800 other hazardous substances listed in 40 CFR 302.4.  Many non-hazardous wastes, recycled materials, and de-regulated hazardous wastes (Universal Waste, Used Oil, etc.) contain hazardous substances, which includes:

• Copper and Copper Compounds
• Lead and Lead Compounds
• Mercury and Mercury Compounds
• Zinc and Zinc Compounds
• And many more

So, every time you arrange for disposal of a hazardous waste by recycling, treatment, or disposal, you are opening up the potential for clean-up of a site under CERCLA or RCRA.  Every time you dispose of a non-hazardous or de-regulated hazardous waste – even scrap metal for recycling – you are opening up the potential for clean-up of a site under CERCLA if it contains a hazardous substance.  This responsibility exists even if your waste has been re-manifested by a third party prior to its disposal.  You can read more about the Superfund Program here.

What can you do?

1. Accept that some risk is the cost of doing business.
2. Do everything you can to eliminate the generation of waste.
3. Ensure you are familiar with the regulations that apply to your operations and adhere to them.
4. Perform “due diligence” of any facility to which you ship your waste for disposal, treatment, or recycling to ensure they are in compliance with the regulations and that they have measures in place to protect you from future liability such as a large cash reserve or sufficient insurance coverage.

At my training events I address all of the above while meeting the RCRA training requirements for Large and Small Quantity Generators of hazardous waste.  Contact me to discuss your training needs or review my training schedule to find a date and location near you.