Environmental Health and Safety Committee 4-30

1. Environmental Health and Safety Committee4-30 Bret Bruhn, Merix Corporation February 2007

2. Legislative & Regulatory Review • TRI Program Issues • RCRA Proposed Rules • Merix F006 Delisting

3. TRI Program • The TRI Program campaign to re-engineer and modernize itself continues, but may have hit a wall. • This has been best evidenced by • “Stakeholder Dialogues” • Proposed burden reduction rules • Form A clarification • Proposed streamlining of reporting forms

4. TRI Program • (2) rounds of “Stakeholder Dialogues” have been completed • Round 1, Oct-Dec., 17, 2002 • Round 2, Nov. ’03 – Feb. 4, 2004 • Round 3, TBD • The “Dialogues” resulted in a proposed “Burden Reduction Rule” [EPA-HQ-TRI-2005-0073] • The comment period closed on Jan. 13, 2006 and the final rule was approved Dec 18

5. TRI Program • Highlights of the rule: • Allows use of Form A for reporting certain PBTs (including lead & lead compounds) • Expands use of Form A for non-PBT chemicals provided < 5,000 lbs are managed. • Considering reducing the frequency of reporting in future burden reduction proposals • Proposing eliminating requirements to report location information and redundant facility identifiers.

6. TRI Program • Clarified that filing a Form A in lieu of a Form R would be treated as a “data error,” not a “failure to file” • EPA has indicated their intent to automate Section 8 of Form R • EPA is pressing for electronic filing

7. Congressional/Public Opposition • Changes perceived as a rollback • Opposition is top priority for OMB Watch • Solis – Pallone appropriations language amendment approved in the House of Representatives by a large majority, but no Appropriations bill was finalized • Senate EPW hearing on TRI rollbacks Feb 6, 2007 • Solis now holds House Subcommitee Chairmanship; plans to introduce bill

8. RCRA Program • F006 • Exemption proposal withdrawn on May 10, 2006 with no notice • IPC endeavoring to uncover why the rule was killed and by whom • DSW • Proposed changes to the Definition of Solid Waste (DSW) • EPA planed to repropose a broader rule by Dec 2006 • Action delayed pending completion of OMB review

9. Regulatory Background • The F006 listing for “electroplating” sludge was part of the original 1980 RCRA standard • While the F006 definition appears limited, a review of the background guidance reveals that it applies not only “electroplating sludge,” but also to etching, chemical milling, and certain associated cleaning processes • Some facilities have attempted to apply the 40CFR 261.2(e) exemption from the DSW for materials that are recycled to their F006 sludge. The exemption applied to: • 40 CFR 261.2(1)(i) “materials used or reused in an industrial process, provided the materials are not being reclaimed, or” • 40 CFR 261.2(1)(ii) “materials used as substitutes for commercially available products: or” • Unfortunately, regulatory agencies have consistently held that smelter feed stocks are not “products,” and that the metals content in these materials is being reclaimed. • Consequently, 40CFR 261, the DSW, has been a barrier to reclassification.

10. Regulatory Relief Opportunities • In January 2003 we were excited to learn that EPA was considering issuing an exemption for select F006 sludges. • We have reviewed Agency proposals, organized meetings with Agency officials, and forwarded comments to support inclusion of our industry’s materials in an effective restructuring of F006 rules.

11. Regulatory Options • Historically, (2) options have existed to secure regulatory relief for F006 classified wastes: • Petition to exclude (de-list) [40 CFR 260.22] • Apply for a variance from classification as a solid waste [40 CFR 260.30(c) & 260.31(c)] • De-listing • Facility Specific • Must show that the basis for listing no longer applies • Must demonstrate that the waste does not display hazardous waste “characteristics” • Variance • Obtained from EPA or an Authorized State Program • Seemingly easy, but quite difficult in practice • Many states refuse to allow the use of an intermediate processor or broker for management • Many states establish burdensome and unnecessary conditions

12. Justification for Regulatory Relief • The basis for inclusion of PWB wastewater treatment sludge within the F006 listing no longer applies [See 40CFR 261 Appendix VII] • Our manufacturing processes don’t involve cadmium plating • Chromic acid etch-back processes have been eliminated or replaced (no hexavalent chrome) • Nickel use is extremely limited • Complexed cyanide use is extremely limited and is typically segregated from general wastewater streams

13. Regulatory Relief Justification • The industry’s F006 materials pose no environmental hazards when appropriately land-filled or reclaimed • A June 2002 EPA OSW evaluation of delisting (530-R-02-014) cites 51 successful delisting petitions for F006 sludge between 1980 and 1999 http://www.epa.gov/epaoswer/hazwaste/id/delist/report.pdf • This represents 37.5% of all delistings. The largest single waste category amounting for an estimated 229,500 tons. • We’re aware of at least 6 additional recent examples of successful petitions for delisting from EPA and/or state issued variances • This indicates a clear and growing body of evidence, supported by extensive analytical data, demonstrating that large volumes of F006 classified materials are non-hazardous

14. RCRA Program / F006 40 CFR 268.40 Treatment Standards for F006 are:

15. RCRA Program / DSW • EPA released proposed rule changes to the definition of solid waste (DSW) on October 28, 2003 • 68 Fed Register 61557 • For information access • www.epa.gov/fedrgstr • www.epa.gov/edocket/ • www.regulations.gov

16. RCRA Program / DSW • Background • Precipitated by EPA vs. ABR court decision • Ruled that EPA had exceeded its authority in attempting to classify materials as hazardous wastes • IPC Activities • Analyzed the proposed rule • Held discussions with Paul Borst EPA OSWER Economist • Drafted and filed extensive comments

17. RCRA Program / DSW • Issues/Comments • Proposed rule is too narrow and could limit opportunities based on definitions of • continuous process • same generating industry (NAICS code) • EPA overestimates the benefits of the proposed rule • Would undercut recycling infrastructure • Asked for comments on a “Broader Rule” based on four-point legitimacy criteria

18. RCRA Program / DSW • Legitimacy Criteria • Manage materials as a valuable commodity or analogous raw material • Provides a useful contribution to the process or product • Provides reasonable economic incentives • TAR (toxics-along-for-the-ride) • “bright line” approach (i.e. numeric limits) • “risk-based” approach • meet product or feedstock specifications

19. RCRA Program / DSW • Legitimacy Criteria • Manage as a valuable commodity or analogous raw material • Provides a useful contribution to the process or product • Provides reasonable economic incentives • TAR (toxics-along-for-the-ride) • “bright line” approach (i.e. numeric limits) • “risk-based” approach • meet product or feedstock specifications • Storage • One Time notification • Recordkeeping, reporting, documentation, & manifesting questions

20. RCRA Program / DSW • Other potential issues • Storage • One Time notification • Recordkeeping • Reporting • Documentation / manifesting • Status • Proposal may move forward in 2007 • Entrenched opposition within the Agency along with concerns from outside interest groups could impede progress

21. RCRA Program / DSW • Current Timelines • Future Actions

22. Pursuing the Delisting Option • How do you start? • With over 57 successful delistings already approved, plenty of good templates exist to choose from • Search the Federal Register, pick one or two that you like, and contact the Agency for copies of the filings • There may be small charges, but often the number of pages is considered de minimis • You can probably limit your search to only the most relevant sections • I recommend Tokusen and Bekaert • The EPA RCRA Delisting Program Guidance Manual for the Petitioner, dated March 23, 2000 can also be helpful

23. Delisting Tips • Typically Petitions are broken down into 2 -3 parts • The Petition. A fairly standard legal description of what is being requested and the rationale for submission • A Sample and Analysis Plan. This includes a detailed description of the facility and plant processes. It describes waste treatment and generation, waste characteristic, identifies constituents of concern, lists what will be analyzed and how often, and how sampling will be performed • The Quality Assurance Plan. This describes lab and analytical methods and procedures, how data will be analyzed and reported, etc.

24. Delisting Tips (cont.) • Of the three sections the Sample and Analysis Plan is the most critical. • Chapter 9 of the RCRA Waste Sampling Draft Technical Guidance SW-846 (EPA 530-R-99-015) provides 318 pages of dense, un-illuminating, reading. It describes accepted sampling and statistical methods. • The method must be matched to the material characteristics and mode of generation. • For instance: • is it a batch or continuous process, • how much variation exists, • is it deposited into totes, bags, hoppers, or roll-offs • There are several methods that might be acceptable, but you may want to select one that’s already been approved.

25. Delisting Tips (cont.) • Once you have your documentation prepared, what do you do with it? • It depends upon your location. • In some locals you’ll have to file with the State, in others you may be able to file directly with the EPA Regional Office. • While there are pros and cons to each option, you should be able to submit a copy to the Region for review in advance. • They will screen it for completeness so that it won’t be rejected on technical grounds.

26. Delisting Tips (cont.) • Should I take advantage of the opportunity for review? • Great question. How much time do you have and what are the consequences of an initial rejection? • If you think you can get a quick response, why not? I recommend asking for a response date in writing. • On the other hand, if there’s no filing fee, starting the formal process typically starts an express timetable. Rejection, modification, and refilling, may take less time than the review. • If you’re prepared to commit to additional sampling and analysis, you should be able to greatly reduce the risk of rejection.

27. Delisting Tips (cont.) • What will it cost? • The two major components are staff time and lab support. • I’d estimate 1 month of staff time for preparation. • 20-40 hours for actual sampling, preparation, and paperwork. • Lab costs vary, but $5,000 – 6,000 would probably be reasonable.

28. Keep in Touch with EHS • Visit the Website at www.ipc.org under • “Legislative and Regulatory Affairs” • Subscribe to the EHS Update • Join Compliance Net email forum Contact: Fern Abrams, IPC Director of Environmental Policy (202) 962-0460, fabrams@ipc.org