Environmental Health and Safety Committee 4 -30 Bret

Environmental Health and Safety Committee 4 -30 Bret Bruhn, Merix Corporation February 2007

Legislative & Regulatory Review • TRI Program Issues • RCRA Proposed Rules • Merix F 006 Delisting

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

TRI Program • (2) rounds of “Stakeholder Dialogues” have been completed Ø Ø Ø 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

TRI Program • Highlights of the rule: Ø Ø 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.

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

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

RCRA Program • F 006 Ø Ø • Exemption proposal withdrawn on May 10, 2006 with no notice IPC endeavoring to uncover why the rule was killed and by whom DSW Ø Ø Ø Proposed changes to the Definition of Solid Waste (DSW)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

Regulatory Background • The F 006 listing for “electroplating” sludge was part of the original 1980 RCRA standard • While the F 006 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 40 CFR 261. 2(e) exemption from the DSW for materials that are recycled to their F 006 sludge. The exemption applied to: Ø Ø 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, 40 CFR 261, the DSW, has been a barrier to reclassification.

Regulatory Relief Opportunities • In January 2003 we were excited to learn that EPA was considering issuing an exemption for select F 006 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 F 006 rules.

Regulatory Options • Historically, (2) options have existed to secure regulatory relief for F 006 classified wastes: Ø Ø • De-listing Ø Ø Ø • 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)] Facility Specific Must show that the basis for listing no longer applies Must demonstrate that the waste does not display hazardous waste “characteristics” Variance Ø Ø 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

Justification for Regulatory Relief • The basis for inclusion of PWB wastewater treatment sludge within the F 006 listing no longer applies [See 40 CFR 261 Appendix VII] Ø Ø 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

Regulatory Relief Justification • The industry’s F 006 materials pose no environmental hazards when appropriately landfilled or reclaimed Ø A June 2002 EPA OSW evaluation of delisting (530 -R-02014) cites 51 successful delisting petitions for F 006 sludge between 1980 and 1999 http: //www. epa. gov/epaoswer/hazwaste/id/delist/report. pdf Ø Ø Ø 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 F 006 classified materials are nonhazardous

RCRA Program / F 006 40 CFR 268. 40 Treatment Standards for F 006 are: Cadmium 7440 -43 -9 0. 19 mg/l TCLP Chromium 7440 -47 -3 0. 86 mg/l TCLP Cyanide (Total) 57 -12 -5 590 mg/kg Cyanide (Amenable) 57 -12 -5 30 mg/kg Lead 7439 -92 -1 0. 37 mg/l TCLP Nickel 7440 -02 -0 5. 0 mg/l TCLP Silver 7440 -22 -4 0. 30 mg/l TCLP

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 Ø Ø Ø www. epa. gov/fedrgstr www. epa. gov/edocket/ www. regulations. gov

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

RCRA Program / DSW • Issues/Comments Ø Proposed rule is too narrow and could limit opportunities based on definitions of § § Ø Ø Ø 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

RCRA Program / DSW • Legitimacy Criteria Ø Ø 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

RCRA Program / DSW • Legitimacy Criteria Ø Ø 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

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

RCRA Program / DSW • Current Timelines • Future Actions

Pursuing the Delisting Option • How do you start? Ø Ø • • 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

Delisting Tips • Typically Petitions are broken down into 2 -3 parts Ø Ø Ø 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.

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: Ø Ø • Ø 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.

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.

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. • • •

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. • • •

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