September 4, 2014

De Minimis Headworks Exemption Rule

40 CFR §261.3(a)(2)(iv)(D)

byRichard H. Rocha

Bayer CropScience LP

Applicability of De MinimisHeadworks Exemption:

A manufacturing or nonmanufacturing facility,

1. Do you have a Clean Water Act NPDES wastewater discharge permit?

2. Does your facility store chemicals, use chemicals, and/or generate hazardous waste?

. . . . if you answer YES to both questions, obtaining the de minimis headworks exemption would likely be beneficial to your facility.

___________________NPDES = National Pollution Discharge Elimination System

§261.3(a)(2)(iv)(D)

___________________RCRA = Resource Conservation and Recovery Act

RCRAHazardou

sWaste

CleanWater

Act

mixture rule

derived-from rule

____________RCRA = Resource Conservation and Recovery Act(†) 40 CFR 261.3(a)(2)(iv)

Mixture Rule Under RCRA(†):

HazardousWaste

Non-HazardousWaste

HazardousWaste

__________________(‡) 40 CFR 261.3(c)(2)(i)

Derived-From Rule Under RCRA(‡):

TREATMENT

residue generated from the treatment, storage, or disposal of a listed hazardous waste is itself classified as a listed hazardous waste

HazardousWaste

toluene

Outfall

Mixture & Derived-From Rule at a Wastewater Treatment Plant:

wastewater

U220

Mixture & Derived-From Rule:

wastewater

U220

sludgespent carbon

spent sand filterstank solids

U220

Outfall

De Minimis Headworks Exemption:

The primary reason of the de minimis headworks exemption is to avoid hazardous waste listing of wastewater sludges.

sludgespent carbon

spent sand filterstank solids

U220

Outfall

Under: §261.3(a)(2)(iv)(A)§261.3(a)(2)(iv)(B)§261.3(a)(2)(iv)(C)§261.3(a)(2)(iv)(D)§261.3(a)(2)(iv)(E)§261.3(a)(2)(iv)(F)§261.3(a)(2)(iv)(G)

Wastewater Headworks Exemptions:under RCRA

The headwaters exemption prevents the mixture rule from applying to large volumes of otherwise nonhazardous wastewaters.

EPA believes that these mixtures of wastewater and small amounts of listed wastes do not pose a substantial hazard to human health and the environment.

De Minimis Wastewater Exemptions:

Under: §261.3(a)(2)(iv)(A)§261.3(a)(2)(iv)(B)§261.3(a)(2)(iv)(C)§261.3(a)(2)(iv)(D)§261.3(a)(2)(iv)(E)§261.3(a)(2)(iv)(F)§261.3(a)(2)(iv)(G)

focus of this presentation

Details of §261.3(a)(2)(iv)(D): mature regulation, Federal rules put in place

over 30 years ago, with big changes made in 2005

de minimis losses - minor from normal operation

well-maintained equipment applicability - manufacturing &

nonmanufacturing direct and indirect dischargers exemption encompasses:

U-listed P-listed F-listed K-listed

How to obtain exemption?

Facility must request to have coverage (note old headworks exemption was self implementing)

Request can only be made by submitting Clean Water Act permit application (i.e., modification or renewal)

Facility would state all wastes seeking exemption (e.g., U-listed, P-listed, F-listed, and/or K-listed)

And for these waste, identify all constituents: in Appendix VII of Part 261 for which the waste was

listed, of concern in the §268.40 table of LDR treatment

standards associated with the waste code

_______________LDR = Land Disposal Restrictions

§261.3(a)(2)(iv)(D)

EXAMPLE

EXAMPLE

Disclaimer, for example purposes only and should not be deemed as regulatory advice.

TABLE 1

Notice of De Minimis Losses Exemption per 40 CFR §261.3(a)(2)(iv)(D)*

[company name]

NPDES Permit No.: MO-#######

Waste Code

Appendix VII of 40 CFR §261 - Hazardous Constituents

for Which Listed

Constituents Appearing in §268.40

U220 toluene toluene

F003 NA n-butyl alcohol

methanol

methyl isobutyl ketone

xylenes-mixed isomers

F005 isobutanol isobutanol

methyl ethyl ketone methyl ethyl ketone

toluene toluene

* De minimis losses are inadvertent releases to the wastewater treatment system, including those from normal material handling operations (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves or other devices used to transfer materials); minor leaks of process equipment, storage tanks or containers; leaks from well-maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers and rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing.

NA = Not Applicable (date)

After Giving Notice:

Facility is eligible to claim exemption once the permit writer, or control authority, has been notified

Keep copy of notice in facility's on-site files

Permit writer, or control authority, will determine if facility’s permit needs to include monitoring, reporting, and/or limits for each waste claimed

In most cases, there should be no impact to facility’s wastewater discharge permit because of the notice since EPA has determined amounts involved are “minuscule” and “treatable”

Recap: To get exemption, facility must give notice to

regulatory agency by submitting Clean Water Act permit application (i.e., modification or renewal)

Notice must identify all constituents: i.) in Appendix VII of Part 261; and ii.) in §268.40 LDR table

De minimis losses only from normal operations and well-maintained equipment

Keep copy of notice for records

Regulatory agency may impose monitoring, reporting, and/or limits . . . but likely will not_______________

LDR = Land Disposal Restrictions

Any Questions?

[ Backup Slides ]

What are de minimis losses?As defined for purposes of 40 CFR 261.3(a)(2)(iv)(D), de minimis losses are “inadvertent releases” to a wastewater treatment system, including:

► those from normal material handling operations (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves or other devices used to transfer materials)

► minor leaks of process equipment, storage tanks, or containers► leaks from well-maintained pump packings and seals;► sample purgings► relief device discharges► discharges from safety showers and rinsing and cleaning of

personal safety equipment► rinsate from empty containers or from containers that are

rendered empty by that rinsing

Can losses to wastewater from conditions other than normal operating procedures qualify for the de minimis exemption?

No.

The losses must be the result of “normal operating procedures at well-maintained facilities” as opposed to neglectful or careless management practices.

See 70 FR 57778 (October 4, 2005); see also page 57779

“Inclusion of the term ‘inadvertent’ only reinforces that losses, which result from mismanagement, neglectfulness or carelessness during normal operating procedures, are not (and have never been) included in the exemption.”

Is there a numeric threshold or concentration of a listed hazardous waste that voids the De Minimis Loss Headworks Exemption at 40 CFR 261.3(a)(2)(iv)(D)?

No. EPA has not established any quantitative threshold or specific concentration that nullifies the applicability of the De Minimis Headworks exemption.

But the Federal Register preambles for the exemption refer to the quantity as small, very small, and minor.

See 70 FR page 57773 (“small losses”) and page 57778 (“minor losses” and “small losses”);

Also, see Proposed Rule 67 FR 17234 (April 8, 2003) at 17244 (“small amounts” and “minor” and “very small amounts”); and

Also see Original Headworks Exemption Final Rule 46 FR 56582 (November 17, 1981) at 56586 (“small amounts” and “small losses”).

As noted in RCRA Online No. 14095 (July 24, 1997), “while the de minimis amount is not quantified in the regulatory language, large material losses would void the de minimis quantity exemption.”

The concept of large material losses voiding the exemption is echoed in the 2005 Final Rule preamble where EPA wrote at p. 57779 “any large intentional losses of these wastes will not be considered as de minimis and accordingly, will not be exempted under §261.3(a)(2)(iv)(D).”