by Maureen Harbourt

NOTE: THIS OUTLINE IS INTENDED TO PRESENT AN OVERVIEW OF SOME POTENTIALLY HELPFUL PROVISIONS. IT DOES NOT ADDRESS ALL POTENTIAL REGULATORY OPTIONS NOR DOES IT ADDRESS RELEASE REPORTING REQUIREMENTS.

I.Hazardous Waste

The Louisiana Department of Environmental Quality has issued an Emergency Order in response to Hurricane Katrina ; however, while it suspends several of the existing solid waste and asbestos management rules, it does not provide relief from the hazardous waste rules (with the exception of one provision extending the time for accumulation in less-than 90-day tanks and containers). In fact, the emergency order specifically indicates that any hazardous waste generated due to the storm must be segregated from other wastes and must be disposed in a permitted facility. However, mechanisms do exist under the existing rules to address emergency situations, as discussed below. See http://www.ldeq.org/news/pdf/Declarationofemergency.pdf at Section 3.

A.Immediate response activities.

Any hazardous waste that is spilled or trapped in sumps must be “cleaned up in a timely manner.” LAC 33:V.1121.

A person engaged in treatment or containment activities during “immediate response” to a spill or an imminent and substantial threat of a discharge of hazardous waste are exempt from hazardous waste permitting requirements, although appropriate management of spill residues is required, and the facility must continue to follow its contingency plan and emergency preparedness requirements. LAC 33:V.1501.C.7.

See section III below for RECAP [Risk Evaluation and Corrective Action Program rule requirements.

B.Material in process vessels, storage vessels and transport vessels.

Hazardous waste generated in a product or raw material storage tank, a product or raw material transport vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an associated non-waste treatment-manufacturing unit, are not subject to regulation until the waste exits the unit in which generated, or unless the hazardous waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing, or for storage or transportation of product or raw materials. LAC 33:V.105.D 3.

C.Treatment/Storage in Satellite Accumulation Areas and Less Than 90-Day Containers/Tanks

Hazardous waste may be accumulated at or near the point of generation in a satellite accumulation area, until the quantity reaches 55 gallons [the limit is one quart for acute hazardous wastes]. Once the quantity is 55 gallons or more [or one quart for acute h.w.], then it must be moved out of the satellite accumulation area within 3 calendar days to either a permitted TSD or to an area meeting the less than 90 day accumulation requirements of LAC 33:V.1109.E. Any device meeting the definition of container may be used for satellite accumulation.

Hazardous Waste may be treated/stored in a tank or container meeting the less than 90 day storage requirements without a permit or interim status, but compliance with LAC 33:V.1109.E. is required. [Note: small quantity generators (SQGs) have different time periods – consult LAC 33;III.1109.E.] [Note: EPA guidance indicates that less than 90 day storage containers and tanks may be used for treatment as well as storage provided the generator complies with the less than 90 day accumulation requirements..

By emergency order, LDEQ extended the 90 day time period pursuant to LAC 33:V.1109.E.2. if the 90 day deadline would run between August 28 and the expiration date of the order. The order [amended] was effective September 3, 2005 and expires in 60 days, so it expires on November 2, 2005. The exact term of the extension is not clear. The order literally indicates that the extension is for 30 days from the date of expiration of the order, (i.e., 30 days from the November 2, 2005 expiration date would be December 2, 2005); however, the intent may have been only to add 30 days to the 90 day deadline that would have otherwise run. This is more likely the meaning as the emergency order cites the rule for authority for the extension, and the rule authorizes only a 30 day extension. Thus, for example, for waste already stored in less than 90 day accumulation tanks or containers where only 10 days were left on the 90 day period as of August 28, 2005 would have at least until October 7, 2005, but may have longer depending upon LDEQ’s intent. Further clarification will be sought. http://www.ldeq.org/news/pdf/Declarationofemergency.pdf at page 9, Section 11. This emergency order applies only to the 25 parishes affected by the hurricane and named in the order.

D.Emergency TSD Permits for Hazardous Wastes

Emergency permits for treatment storage or disposal of hazardous waste are provided in LAC 33:V.701. Here is a summary of that rule:

1.To whom the permit may be issued:

*A non-permitted facility to allow TSD of hazardous waste; or
*A permitted facility to allow treatment, storage or disposal of hazardous waste not covered in permit

2.Requirements for Issuing an Emergency TSD Permit:

LDEQ may issue permit if they find an imminent and substantial endangerment to human health or the environment would exist without the permit. (Thus, any application should state what the endangerment would be w/out the permit. This could be that the delay in obtaining a permit would take too long.)

3.Rules/Requirements for Emergency TSD Permit

*Oral or written. If oral, must be followed in five days by written emergency permit;
*Duration of permit shall not exceed 90 days;
*Permit must clearly specify the hazardous waste to be received and manner and location of their treatment, storage, or disposal;
*LDEQ can cancel at any time based on protection of human health and environment;
*Issuance of the permit shall be accompanied by public notice (presumably by LDEQ) that includes:
Name and address of office granting authority;
Name and location of permitted TSD facility;
Brief description of wastes involved;
Brief description of action and reason for authorization;
Duration of emergency permit;
*The permit shall incorporate to the extent possible, and not inconsistent with the emergency situation, all applicable hazardous waste regulations.

E.Temporary Authorizations

A temporary authorization for a treatment, storage or disposal facility may also be authorized per LAC 33:V.321.C.5. This is a type of modification that appears to be available only to facilities that already have a hazardous waste permit (which would include a HSWA permit). It does not require a demonstration of imminent and substantial endangerment. This allows quicker processing than would the ordinary Class 2 or Class 3 permit modification process. Temporary authorizations are allowed:

1.When a Class 2 modification would be authorized and where it is necessary to:
a. Timely implement closure or corrective action activities;
b.Allow treatment or storage in tanks, containers, or containment buildings in accordance with prohibitions on land disposal;
c.Prevent disruption of ongoing waste management activities;
d.Enable permittee to respond to sudden changes in types or quantities of wastes managed under the facility and permit; or
e.Facilitate other changes to protect human health and the environment.
2.When a Class 3 modification would be authorized and where it is necessary to:
a.Timely implement closure or corrective action activities; or
b.Allow treatment or storage in tanks, containers, or containment buildings in accordance with prohibitions on land disposal;
3.When a Class 3 modification would be authorized and where the modification provides improved management or treatment of hazardous waste already listed in the facility permit and it is necessary to:
a.Prevent disruption of ongoing waste management activities;
b.Enable permittee to respond to sudden changes in types or quantities of wastes managed under the facility and permit; or
c.Facilitate other changes to protect human health and the environment.

See LAC 33:V.321.C.5 for information on application and processing requirements.

II.Solid Waste

A.LDEQ Emergency Order

The order addresses many exceptions and special authorizations for management of solid waste generated due to the hurricane. See section 2 for general solid waste management and section 11 for asbestos management.
http://www.ldeq.org/news/pdf/Declarationofemergency.pdf

B.Case-by-case Exemptions

Permits are required for treatment and disposal facilities, unless exempt. One of the standard exemptions is for industrial facilities that process solid waste by non-destructive and non-thermal means on the site where generated do not need a permit for the processing activities. LAC 33:VII.305.F. They would, however, require a permit for disposal activities. The solid waste rules provide for a case-by-case exemption from the classification of a material as a solid waste in LAC 33:VII.303.L. “based on possible environmental impact.” The rules also provide for a case-by-case exemption from all or part of the permitting and management rules for materials that are solid waste. See LAC 33:VII.307. The application for a case-by-case exemption is made by petition following the requirements of 307.B. and LDEQ must make a decision within 180 days. The applicant must publish a notice of intent to submit an exemption request per 307.C.

III. RECAP (Risk Evaluation and Corrective Action Program)

A.Applicability

LDEQ’s RECAP program is applicable for determining when discharges of solid waste or hazardous waste have been appropriately cleaned-up (i.e., how much residual material may remain). It does not apply to:
1. current spills that do not require notification under LAC 33:I.Ch. 39 (reporting rules) and which are remediated as soon as practicable, but not more than 30 days after learning of the discharge provided they are remediated in a manner that will ensure protection of human health and the environment.;
2. spills that create emergency conditions, as defined in LAC 33:I.3905, but do not exceed a Reportable Quantity and which are remediated as soon as practicable, but not more than 30 days after learning of the discharge provided they are remediated in a manner that will ensure protection of human health and the environment;
3. spills solely to air;
4.current spills over the reportable quantity in Ch. 39 that are
*Remediated promptly in a manner protective of human health and the environment
*Remedated as soon as practicable, but not more than 30 days after learning of the discharge
*The appropriate notification of the spill is made under Ch. 39
*The written follow-up report required under Ch. 39, or a subsequent follow-up report, documents that the material has been removed to a level that will ensure protection of human health and the environment. Such documentation may include confirmatory sampling, use of organic vapor monitoring devices, or where appropriate (such as where the spill is of dark material and/or is very small), visual confirmation.