Advanced Environmental Crimes Training Program M3

MODULE THREE

The Majors

Resource Conservation and Recovery Act

Clean Water Act1

Protect human health and environment

from improper waste disposal

Conserve energy and natural resources

through recycling and recovery

Reduce the amount of waste generated

Ensure wastes are properly managed

RCRA (42USC §6901)Congressional Intent

2

RCRA: Our Comprehensive national

waste management program

3

The Solid Waste Disposal Act of 1965 and its Amendments

4

Cradle to grave

Active facilities

Generate

hazardous waste

5

RCRA at Federal Facilities

Public

Vessel Exempt

ion

transferred or offloaded to a shore facility

Military Munitions Rule

Applies to ‘unserviceable munitions’

Regulators a

re em

powered t

o use

enforcem

ent tools against

federal facilities

Federal Employee Protection

and Exposure

Protects employees from personal liabilities yet are subject to all laws

6

Divided into 10 subtitles A-J

Solid Waste (Subtitle D)Hazardous Waste (Subtitle C)

Underground storage tanks (Subtitle I)

RCRA Im

plementation

RCRA is not a self-implementing statuteExtensive regulation

40 CFR 261-299

7

RCRA may apply if...generate, transport,

store, treat and/or

dispose of...

...solid, special and/or

hazardous wastes

8

RCRA

Sub

title C

Identification

Management

Corrective Action9

Waste Management Topic 40 CFR

Definitions, Petitions, and Variances Part 260

Waste Identification Part 261

Generator Standards Part 262

Transporter Standards Part 263

TSDF Standards Part 264 (permitting)Part 265 (interim status)

Specific Waste and Facility Standards Part 266

LDRs Part 268

Permit Program Part 270 and 124

State Programs/Authorization Part 271

Universal Waste Standards Part 273

Used Oil Standards Part 27910

RCRA hazardous waste requirements will change based

on activities

11

Generators

Identify hazardous wasteslisted or characteristic

Contain, store, label properly

Obtain generator EPA ID#

Prepare manifests

12

Transp

orters

Obtain EPA and State ID

Secure and store properly

Hazardous Waste Manifest*

DOT 49CFR

13

TSDFPerformance Standards

Permitting

14

Interim status prior to permitting

Delegates RCRA program to states*

(Alaska & Iowa)

Authorizes site inspections & enforcement

Groundwater monitoring

Air emission controls

Corrective actions

Land disposal prohibition*

*for untreated HW

Performance StandardsPermitting

15

RCRA Investigations:

Is there a RCRA defined

Hazardous Waste?

Investigators must understand

RCRA regulatory universe

16

Initial RCRA Investigation

What is it?

How was it produced?

How will it be managed?

Lookout for: spent material, sludge, reuse, reclaim &

commercial chemical product17

Hazardous Waste Determination Basics

Step 1: Is material excluded from solid waste definition?

Step 2: Is the material a solid waste?Step 3: Is the solid

waste excluded from hazardous waste definition?

Step 4: Is the solid waste actually a hazardous waste?

18

Step 1: Is material excluded from solid waste definition?

Exclusions from definition

of solid waste

40 CFR 261.4(a)19

Domestic sewage

CWA Industrial wastewater

Irrigation return flows

Special nuclear material

In situ mining wastes...

Excluded Solid Waste

20

Hazardous Waste Determination Basics

Step 1: Is material excluded from solid waste definition?

Step 2: Is the material a solid waste?Step 3: Is the solid

waste excluded from hazardous waste definition?

Step 4: Is the solid waste actually a hazardous waste?

21

Step 2: Is the material a solid waste?

Definition of solid waste

40 CFR 261.222

Materials, not excluded from the definition

of solid waste or by a variance granted by EPA or an authorized state program, are solid

wastes if they are discarded.

40 CFR 261.2solid waste is discarded materials

23

Discarded material

Abandoned: includes materials that are

disposed of, burned or incinerated, or accumulated, stored or treated prior to or in lieu of abandonment:(40CFR 261.2(b))

24

Disposed of

Burned or incinerated

Accumulated, stored, or treated (but not recycled) before or in lieu of being

abandoned by being disposed of, burned, or incinerated

40CFR 261.2(b)Materials are solid waste if they are abandoned by being:

25

Discarded material

Military Munitions: 40CFR 266.202

Considered inherently waste like

(determined by EPA): 40CFR 261.2(d)

Recycled in certain ways: 40CFR 261.2(c)

26

Solid Waste Definition: 2008 Revisions

Excludes hazardous secondary materials that are

legitimately reclaimed under the control of the generator

Clarifies legitimate recycling versus sham recycling

and requires that a generator make reasonable

effort to determine legitimacy of a recycler

27

Hazardous Waste Determination Basics

Step 1: Is material excluded from solid waste definition?

Step 2: Is the material a solid waste?Step 3: Is the solid

waste excluded from hazardous waste definition?

Step 4: Is the solid waste actually a hazardous waste?

28

Step 3: Is the solid waste excluded from hazardous waste definition?

Exclusions from definition of hazardous waste

40 CFR 261.4(b)

29

A list of solid wastes excluded from RCRA regulations is set forth in 40 CFR261.4(b)

Congress and EPA have excluded

certain wastes as hazardous wastes

30

Household wasteAgricultural wastes that will be returned as fertilizer

Mining overburden returned to mineUtility wastes from coal combustion

Oil and natural gas explorationCertain tannery wastes that may fail the toxicity characteristic for

chromium, but contains exclusively trivalent chromium Wastes from ore processing (the mining waste exclusion)

Cement kiln dust wasteCertain arsenical-treated woods

Certain petroleum-contaminated media with toxicity characteristicInjected ground water that exhibits the RCRA toxicity characteristic at

certain hydrocarbon recovery operationsUsed chlorofluorocarbon (CFC) refrigerants that have been reclaimed

Empty used oil filtersCertain chromium bearing wastes

Leachate or condensed gas condensate collected from certain landfills

31

Hazardous Waste Determination Basics

Step 1: Is material excluded from solid waste definition?

Step 2: Is the material a solid waste?Step 3: Is the solid

waste excluded from hazardous waste definition?

Step 4: Is the solid waste actually a hazardous waste?

32

Definition of hazardous waste

40 CFR 261.3Characteristics of hazardous waste

261.20-261.24Lists of hazardous wastes

261.30-261.22

Step 4: Is the solid waste actually a hazardous waste?

33

Listed hazardous waste

Characteristic hazardous waste

Mixture rule: Mixture of solid waste & listed haz-waste

Derived-from rule: Derived from treatment, storage, or disposal of other hazardous waste

40 CFR261.3Definition of hazardous waste

includes solid waste that exists as

34

Listed Hazardous Waste

F-Listed Wastes

from non-specific sources: 40 CFR261.31

K-Listed Wastes

from specific sources: 40 CFR261.32

U & P-Listed Wastes

are discarded commercial chemical products: 40 CFR261.33

NOTE: P-Listed are acutely hazardous wastes

35

Listed Hazardous Waste

Listed v. Characteristichazardous wastes

Basis for listing wastes

Acutely hazardous wastes

36

Characteristic Hazardous

Waste

Key RCRA investigative activity

37

ignitable liquids using flash point specific

EPA-approved method

oxidizers as defined in 49 CFR 173.115(a)

ignitable compressed gas as defined in 49 CFR 173.127

ignitable solids is described as the following:

“It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and,

when ignited, burns so vigorously and persistently that it creates a hazard.”

D001 Ignitibility: 40 CFR261.21

38

Corrodes steel at certain rate & conditions

D002 Corrosivity: 40 CFR261.22

pH ≥12.5pH≤2

39

Extremely unstable substances -or-

Tendency to react or explode during mgmt.

Narrative definition established by EPA

D003 Reactivity: 40 CFR261.23

40

Toxicity Characteristic Leaching Procedure D004-D043

40 CFR261.24

6 insecticides/herbicides

Identifies wastes that leach hazardous

concentrations of specific toxics

Extracts toxics from wastes similar to landfill leaching action

25 organics8 inorganics

39 TCLP/D-listed waste codes41

Other Hazardous

Waste Provisions

Mixture Rule

Contained-In Principle

Derived from Rule

42

Mixture doesn’t have hazardous

characteristics

Discharges subject to CWA

Mixture contains discarded commercial

chemicals products from de minimis

losses during manufacture

Mixture Rule Exemptions

43

Soil, ground & surface water debris

that is contaminated with hazardous

waste (listed or characteristic)

Contained-in Principle

44

If derived from listed waste,

considered hazardous until de-listed

If derived from characteristic, only

hazardous if characteristic is exhibited

‘Derived from’ Rule Exemptions

45

Universal Hazardous Wastes Alternative Regulatory program 40 CFR273

Batteries

not to include lead-acid batteries covered by 40 CFR266

Pesticides

includes cancelled, unused, or suspended pesticides

Lamps

including fluorescent, mercury vapor, neon, high intensity discharge, high pressure sodium, and metal halide

Mercury-containing equipment

46

Does RCRA

APPLY?

Used oil located in tanksPipe insulation containing friable asbestos

Decontaminated tank shellsSeveral drums containing used solvents

Several drums of paint thinnerA plastic drum containing a mixture of alkaline and

rechargeable batteries (Ni-Cad)Pipe racks contaminated with BTEX & PCBs (>50ppm)

Drums containing used paint spray cans

47

RCRA Regulated Entities

TSD-Fs

Generators Transporters

48

Generator Requirements

RCRA related records retained for

minimum 3 years

EPA ID Number

O Bulking/storage requirements on-site

Initiate Hazardous Waste Manifest with

Hazardous Waste Identification

DoT requirements

Manifest signatories

49

Generator Quantity RegulationOn-Site

Accumulation Times

On-Site Quantity Limit

Large Quantity Generator

(LGQ)

≥ 1,000 kg/month(approx. 2200 lbs.)

> 1 kg/month acute(approx. 2.2 lbs.)

> 100 kg residue or contaminated soil from

cleanup of acute hazardous waste spill

All part 262 reqs

≤ 90 days on site

No limit

Small Quantity Generator

(SQG)

Between 100-1,000 kg/

month

Part 262, Subparts A, B, C (§262.34(d) is specific to SQGs); and Subparts E, F,

G, H if applicable; and portions of Subpart D as

specified in §262.44

≤ 180 days on site or ≤ 270 days if

shipped 200 miles or more

6,000 kg

Conditionally Exempt Small

Quantity Generator (CESQG)

≤ 100 kg/month

≤ 1 kg acute

≤ 100 kg residue or contaminated soil from

cleanup of acute hazardous waste spill

§261.5 N/A

1,000 kg

1 kg acute

100 kg residue or contaminated soils

from cleanup of acute hazardous waste spill

50

Uniform Hazardous Waste Manifest

51

52

53

Transporter Requirements

Hazardous waste can hold at transfer

facility for 10 days without permitting

Engaged in the off-site

movement of hazardous waste

by air, rail, highway or water

54

Implications for transporter definitions ‘on-site’ & ‘off-site’

Along roadway v. across public or private right of way

Transporters Generators

Mixed wastes of different DOT classes

Accumulates waste

Liable for spill response

55

Criminal Investigations of RCRA Violations

RCRA regulates hazardous wastes;

does not regulate hazardous materials

56

Essential to criminal prosecution under

RCRA is the requirement that the

waste material involved be a

hazardous waste

57

First Investigative

Inquiry

58

No RCRA jurisdiction

Is the material subject to the

investigation a solid waste?

If yes: Then...

Is it hazardous waste? If no:

59

Recyclability Claims

Not a waste until it can no longer be recycled or reused

Common RCRA

Investigative Issues:Product

Not a waste until used, abandoned, outdated spilled or no longer fit for original purpose

60

Common

RCR

A Criminal Violation

s42 USC6928(d)(1) and (5): To knowingly

transport hazardous waste without a

manifest or to a facility that does not

have a permit

42 USC6928(d)(2): To knowingly treat, store,

or dispose of hazardous waste without a

permit or in violation of a permit

To knowingly dump a hazardous waste into

the ocean without a permit

61

Common

RCR

A Criminal Violation

s42 USC6928(d)(3) and (4): To knowingly make a

false material statement or omit material

information in the documents filed,

maintained, or used in compliance with EPA

or state RCRA regulations

To destroy, alter, conceal, or fail to file a

document required under EPA or state

RCRA program

42 USC6928(d)(6): To export hazardous waste

to a foreign country without consent

62

RCRA Criminal Violations

Knowing Violations are felonies

No negligent or misdemeanor violations

Penalties

2 to 5 years imprisonmentFines to $50K/day of violation

2nd offenses double the penalty

63

RCRA Criminal Violations

Knowing Endangerment

Provides for more substantial felony penalties for any person who commits egregious acts

Penalties

Up to 15 years imprisonmentFines to $250K/day of violation

Corporate defendants max fine $1M

64

RCRA Criminal Enforcement Concepts

Knowing element of an environmental crime:

Defendant requires only knowledge of his/her activities not that actual knowledge of EPA regulations

65

DoJ & EPA have aggressively applied knowing

endangerment provisions via two prong test

Responsible Corporate officer Doctrine

Acted knowingly, had knowledge of the general hazardous character

Knew that the chemical had potential to be harmful of others

66

Defendants can be any individuals, corporations,

partnerships, associations, municipalities, state, or any

department or agency of the United States

67

Criminal provisions of RCRA make it a federal

offense to violate regulations promulgated “by a State in the case of an authorized program”

68

RCRA Challenges

regulated community

Use innovative and emerging technologies, as well as modifications to production processes and raw materials

Incentivizes not producing waste of any kind

69

CWA (33USC §1251)Federal Water Pollution Control Act

as amended by the Clean Water Act

or“Don’t put it out the Pipe!”

or“Why is that fish swimming upside down?”

70

It is the national goal

that the discharge of

pollutants into the

navigable waters be

eliminated by 1985

33 U.S.C. Section 1251 (a)(1)71

The objective of the Federal

Water Pollution Control Act as

amended by the Clean Water Act

and the Oil Pollution Act is to

restore and maintain the

chemical, physical, and biological

integrity of the Nation’s waters.

72

CWA Pollutants

dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials, radioactive materials,

heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial,

municipal, and agricultural waste

CW

A Key Defin

itions

73

CW

A Key Defin

itions

Point Source

Any discernible, confined and discrete conveyance, including, …any pipe, ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which

pollutants are or may be discharged

Note: This term does not include return flows from irrigated agricultural fields

74

Non-Point Source Discharges

Major source of pollution of nation’s waters

Largest source is agricultural runoff

Impacts to surface waters

Siltation, salinity, pesticides, and nutrient discharges75

CWA Framework

Title IV: National Pollution Discharge Elimination System

Permit sets limitations on authorized discharges

Required for any discharge

No permits issued for discharges into territorial

seas unless permitee complies with special criteria

76

Pretreatment Program

Industrial Users (IUs) must discharge intoPublicly Owned Treatment Works (POTWs)

Imposed limitations documented via municipal POTW permit

Direct industrial-sector effluent

discharges are prohibited

77

Nat’l general & specific discharge prohibitions

National categorical standards

Local limits developed by POTWs

Pretreatment Program

Three part

system for IU:

78

Causes pass through or interference on sludge

processes

Specific explosion hazards, corrosivity issues, solid

or viscous material that obstruct flow

Prohibition on any pollutant that

79

C. A. F. O.

80

33 USC §1321

There should be no discharges of oil

or hazardous substances into or

upon the navigable waters of the United States, adjoining shorelines, or into or

upon the waters of the contiguous zone

Spill Prevention, Reporting &

Responding to Spills

81

Spill Prevention, Reporting &

Responding to Spills

Spill Prevention and Control Countermeasures (SPCC)

Facility Response Plans (FRP)

40CFR Part 112

82

83

OPA-90 Amendments

Oil pollution prevention

Liability & compensation regime

Increased tanker safety and oil spill liability provisions

Promulgated by USCG

84

Big Oil + More Regulation=

85

Water pollution violations

are the most common

criminal environmental

prosecutions

86

NPDES permitees are required to report any anticipated noncompliance

Any noncompliance not required to be reported under any other specific provision

Any noncompliance that permitee failed to report as required within regulations or permit

Further...

87

Negligent violation

$2,500 to $25K fine per day, imprisonment for not more than one year, or both

Knowing violation

$5K to $50K fine per day, imprisonment for not more than three years, or both

Maximum penalties for subsequent

convictions are doubled

CWA Criminal Violations

88

CWA Criminal Violations

Knowing Endangerment

33 USC§1319(c)(3): Defendant knew at the time that he/she placed another person in imminent

danger of death or serious bodily injury

15 years imprisonment or $250K$1M for an organization

89

Wetlands Violations

CWA Criminal Violations

Knowingly discharge a pollutant into a water of the US (i.e., wetland) without a permit or in violation of a

permit (NPDES or 404 permit)*

*Involves destruction of wetlands by filling with dredged or other materials

Wetlands perform fundamental ecological

functions: fish nurseries and trap pollutants

90

CWA Criminal Violations

Knowing Falsification

42 USC §1313(c)(4): Tampering with monitoring device or method

2 years imprisonment or $10K finePenalties double for subsequent violations

Most commonly involves falsification of discharge

monitoring reports (DMRs) by NPDES permitees

91

Knowingly making a false material statement representation, or certification in any application, record, report, plan, or other document filed or

required to be maintained

Effectiveness and integrity of CWA program

depends upon truthful and accurate self-

reporting by the regulated community

Falsification and Tampering:

Closely exam dmr’s and other permit docs

92

For a pollutant discharge to be lawful, the discharger must

have an NPDES permit and the discharge must be in

compliance with that permit

93

CWA Criminal Violations

Direct Discharge Violations

Knowingly or negligently discharging a pollutant directly to water either without

a permit or in violation of a permit

NPDES permits may be issued by EPA

Programs generally delegated to states

94

Indirect Discharge: Pretreatment Violations

Knowingly or negligently introducing a pollutant or

hazardous substance into POTW*

CWA Criminal Violations

*POTWs lack capacity to treat every type of industrial waste (particularly toxic pollutants)

95

effluent will Significantly impact

surface water quality

Large quantities of industrial

waste waters and domestic wastes

are discharged “indirectly” into

surface waters via sewer systems

96

Knowing discharge of oil or

hazardous substance

Fines and imprisonment vary depending on source (facility/vessel), size of spill, spill history

Knowingly (or negligently) discharging oil or hazardous substance into waters of the US, in a harmful quantity

CWA Criminal Violations

97

CWA Criminal Violations

Knowing discharge of oil or

hazardous substance

33 U.S.C. § 1321(b)(5): Failure to immediately notify the government about an

oil spill (harmful quantity) or hazardous substance in a reportable quantity

5 year felony

98

CWA Delegation to States

States must demonstrate adequate

enforcement program

Feds can initiate action even if state doesn’t

Feds can bring parallel action with state

EPA can suspend state program if necessary

99

Clean Water Act

100

The Importance of Regulatory Work...

...and The Potential Consequences101