Client Alert: PCB Discharges Prompt DHEC Emergency Regulation

by Nexsen Pruet, PLLC
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On September 25, 2013 the South Carolina Department of Health and Environmental Control (DHEC) filed an emergency regulation (Regulation) in response to multiple occurrences of illegal dumping of substances containing polychlorinated biphenyls (PCBs) into multiple sewer systems across the State.  The Regulation took effect immediately upon filing and remains in effect for ninety (90) days and can be refilled for another ninety (90) days.  DHEC acknowledged the existence of an ongoing investigation into the origin of the materials, including state and federal authorities. 

In August, (press release) DHEC had acknowledged that PCBs had been detected in several publicly-owned treatment works (POTWs) in the Greenville-Spartanburg area of the State.  Concurrent with the filing of the Emergency Regulation, the agency announced (press release) that PCBs had now been detected in a POTW in the Columbia, SC area.

DHEC noted that there was currently no known impact to public health or any confirmed discharge to surface water bodies.  It is also believed that other POTWs bordering South Carolina have recently detected PCBs in their systems.

Some South Carolina wastewater treatment systems are permitted for the land application of their sludge.  Based on the suspected criminal activity, DHEC has determined the need for specific regulations limiting the land application of sludge containing detectable levels of PCBs.  The Regulation addresses the land application of sludge from wastewater treatment systems and specifically limits land application to sludge containing no detectable levels of PCBs and requires increased testing of sludge, regardless of disposal method, to aid in identifying illegal dumping suspects.  DHEC has also informed all of the state’s Class III landfill operators and waste water treatment plants of the matter, and provided them guidance regarding proper disposal and reporting of any suspicious activity.

DHEC also released a summary (PCB background) of the PCB history and issued a Be On the Lookout (BOLO) through the State Law Enforcement Division to heighten awareness among law enforcement of illegal dumping and solicit the help of local law enforcement agencies. 

The provisions of the Regulation address the management of wastewater sludge, including land application of wastewater treatment sludge impacted by illicit discharges of PCBs.  The Regulation does not affect landfill disposal of such sludges; however, DHEC is requesting landfills which accept wastewater treatment sludge for disposal to obtain updated waste profiles for all sludge material.

Land Application of Wastewater Sludge

Previously, Section 503 permits for land application of wastewater treatment plant sludges impose no limits on the land application of sludge with PCB concentrations below 50 ppm.  The Regulation (Section 1.) prohibits the land application of wastewater sludge if levels of PCBs are quantifiable using EPA SW-846 Method 8082A, with sample preparation method #3550C ONLY.  While the PQL for PCBs is 0.50 µ/l (ppb), the Regulation does not specify a minimum detection limit but rather relies upon the certified laboratory to achieve a Method Detection Limit which will most likely be lower than the PQL and vary among laboratories.

So long as the laboratory reports a result lower than its MDL, land application may resume.  At any time the result is quantifiable but below 50 ppm, the sludge can still be landfilled.  In the event that result is greater than 50 ppm, the sludge must be managed at a TSCA- approved facility.  Any quantifiable PCB result in the sludge must be reported to DHEC within five (5) calendar days of receipt of such results.

Facilities with a Section 503 land application permit must collect representative sludge samples each calendar quarter to confirm the absence of quantifiable levels of PCBs (Section 2.).  No additional land application may occur until such initial sampling has been completed or a sample has been collected no more than fifteen (15) days prior to the effective date of the Regulation.  Records of such sampling must be maintained for five (5) years and reported annually to the DHEC.  Presumably, DHEC intends to move forward with promulgation of a permanent regulation codifying these requirements since they would not extend beyond the expiration date of the Regulation.

Sludge Treatment at Wastewater Systems

The Regulation (Section 3.) also addresses how a wastewater facility may manage PCB contaminated sludge resulting from an illicit discharge into the wastewater system.  Where wastewater such as filtrate, is generated from sludge management equipment (e.g., dewater, thickening) and recirculated into the wastewater treatment components, it will be deemed in compliance with applicable water quality regulations provided the recirculated wastewater does not contain a PCB concentration which is quantifiable using EPA Method 608, i.e., non-detectable.

Guidance

DHEC has issued guidelines (PCB background) for owners of grease traps describing applicable requirements and offering methods for proper handling of PCB contaminated waste.  The guidelines provide links to laboratories as well as contractors capable of providing assistance.  In addition, DHEC has advised (memo to WWTP and MSWLF) wastewater treatment plant owners as well as municipal solid waste (MSW Class III) landfill operators that updated waste profiles to include analysis for PCBs to ensure that no sludge with PCB concentrations greater than 50 ppm is disposed of at an Class III MSW landfill.  A similar directive (memo to processing) was issued to solid waste processing facilities requiring an updated waste profile for PCBs.  Finally, DHEC has notified (memo to haulers) grease and sludge haulers to exercise caution when collecting and handling waste from grease traps and other sludge facilities.

Summary

The Regulation remains in effect through December 24, 2013.  Since this falls on a holiday as do December 25th and 26th, the next business day would be December 27, 2013.  Since the General Assembly is not in session, the Regulation may be refiled to extend the expiration date for an additional ninety (90) days.  It is expected that two things are likely to occur – rulemaking would proceed to incorporate these provisions into SC Reg. 61-9 and Section 503 permits will be modified to include these provisions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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