regulatory updates and initiatives

Regulatory Updates and Initiatives

Triumvirate EnvironmentalApril 9, 2009

Today’s Speakers

Sandra J. Perry, Triumvirate Environmental Consulting Services and Treatment Technologies Manager /

Principal ConsultantRick Foote, Triumvirate Environmental

Senior Environmental Compliance Advisor and Industrial Consulting Services Manager, New England

AND FEATURING:William Taylor, Esq., Pierce Atwood

Environmental Attorney – Practice Areas: water law, waste discharge, NPDES, stormwater, etc.

Stephen Perkins, U.S. EPA Deputy Regional Administrator of EPA’s New England Office;

Dir. Office of Ecosystem Protection

Today’s Topics

EPCRA

TURA

Air Greenhouse Gas Initiatives

States – New England MassDEP Mandatory Greenhouse Gas Reporting

Emergency Regulation EPA Greenhouse Gas Initiative

MassDEP Proposed Regulation Amendments MassDEP Proposed Air Permit Streamlining

Today’s Topics

Hazardous Waste Proposed MassDEP Hazardous Waste Regs Proposed Universal Waste – Addition of Pharmaceuticals EPA Proposed Lab Rule NH – Adoption of Nitro Exemption

Oil SPCC – Dec 2008 Amendments Wastewater and Storm Water

MassDEP Sewer Users Mercury Prohibition NPDES Non-Contact Cooling Water General Permit Industrial StormWater

EPA Audit Policy – Interim Approach

Emergency Planning & Community Right-to-Know

Actand

MassDEP Toxics Use Reduction

EPCRA – Chemical Inventory Reporting

Tier I and Tier II Forms Removed from CFR, now on EPA website NAICS code required Chemical or common name on MSDS must be provided

Hazardous Chemical Inventory Reporting for Chemicals in Mixtures

Threshold quantity determination for EHSs must be total quantity of pure form and in mixtures

EPCRA – Toxic Chemical Release Inventory Reporting (TRI)

Effective for July 1, 2009 filing deadline

All reports on persistent, bioaccumulative, and toxic (PBT) chemicals must be submitted on "Form R"

For all other chemicals, Form A may be used if the annual reporting amount is 500 lbs or less and less than 1 million pounds manufactured, processed or otherwise used.

(3,500 additional facilities nationwide are now required to report)

MassachusettsToxic Use Reduction Act – Planning

Amendments

October 2007- voted to add three chemicals as “higher hazard substances”:

Trichloroethylene (TCE) Cadmium Cadmium compounds

301 CMR 41.00 (Toxic or Hazardous Substance List) amended on December 28, 2007

Effective for reporting year 2008 

What facilities are affected?

Applicability Criteria TURA-covered SIC or

NAICS codes, Use 1,000 pounds

or more of these higher hazard substances in 2008 or subsequent years, and

Employ at least 10 full-time employees

Must report on use,

Pay a fee, and

Submit reduction plans to MassDEP beginning with reporting year 2008

When are reports, fees, and plans due?

2008 Toxics Use reports due July 1, 2009 MassDEP assesses toxics use fees based on the

reports

Continued use above the reporting threshold requires preparation of a Toxics Use Reduction Plan by July 1, 2010 and every two years thereafter.

Air EmissionsGreenhouse Gas Initiatives

Regional Greenhouse Gas Initiative

The Regional Greenhouse Gas Initiative, Inc. (RGGI, Inc.) – Non-profit corporation CO2 Budget Trading Programs – ten

participating states Market based Fossil fuel electricity generators

Regional Greenhouse Gas Initiative

RGGI, Inc. provides technical and support services for:

Development and maintenance of a data reporting system to track CO2 allowances

Implementation of a platform to auction CO2 allowances Monitoring the market Providing technical assistance for emissions offset projects Providing technical assistance to evaluate proposed

changes to the states' RGGI programs

Climate Registry General Reporting Protocol – emission factors

Ten States Involved with RGGI

Connecticut DelawareMaineMaryland Massachusetts New Hampshire New Jersey New YorkRhode Island Vermont

The first mandatory cap-and-trade program in the United States to reduce global warming gas emissions.

Cap-and-Trade System

Market-based cap and trade Set amount of allowances for CO2 emissions are issued through

auctions 1 allowance= X tons of CO2 emissions

Facilities can buy, sell and trade allowances for current market value

Incentive to abate emissions and sell allowances for $ Companies that can’t afford to abate; purchase more allowances

Gradually the number of allowances being introduced into the market will decrease

RESULT: Emitters are forced to permanently lower emissions

Greenhouse Gases – States

New England States

VT – Proposed CO2 Budget Trading Program (to establish the Vermont component of the RGGINH – Proposed Voluntary Greenhouse Gas Emissions Registry and CO2 Budget Trading, Offset Projects and Allowance Auction Programs CT – Control of Carbon Dioxide Emissions/Carbon Dioxide Budget Trading Program and Emission Offset Projects; Final rules effective July 2008ME – Regional Greenhouse Gas Initiative Act of 2007; Budget Trading Program and Auction Provisions; First in the nation carbon emissions allowance auction (Sept. 2008)RI – Implementation of the Regional Greenhouse Gas Initiative Act; Budget Trading Program and Trading Allowance DistributionMA - Mandatory Greenhouse Gas Reporting Emergency Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008Regulation – Dec. 2008

MassDEP Mandatory Greenhouse Gas MassDEP Mandatory Greenhouse Gas

Reporting Emergency Regulation – Dec. 2008Reporting Emergency Regulation – Dec. 2008Applicability 

Title V Facilities under the Federal Clean Air Act (implemented under 310 CMR 7.00: Appendix C)

Facilities that emit greater than 5,000 tons/year Carbon Dioxide Equivalent (CO2e)

All retail sellers of electricity

electric distribution companies, municipal electric departments, municipal light boards, competitive suppliers

Fuel Usage Reporting Thresholds

The emission factors are based on the Climate Registry's General Reporting Protocol 5,000 short tons of CO2 would be produced by burning:

8.3 million cubic feet of natural gas ( emission factor 0.0546 kg CO2/standard cubic foot)

421,000 gallons of #1, 2 or 4 fuel oil (emission factor 10.15 kg CO2/gallon).

MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008

MassDEP – Implementation MassDEP – Implementation DeadlinesDeadlines

January 1, 2009: Prepare to collect and retain information needed to calculate and document CO2 emissions

April 15, 2009: Register with MassDEP

April 15, 2010: Report 2009 CO2 emissions from the combustion of fuels

April 15, 2011: Report 2010 emissions of all 6 greenhouse gases

CO2 Methane Nitrous oxide Hydroflurocarbons Perfluorocarbons Sulfur hexafluoride

MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008

MassDEP Proposed Revised Rules – March 10, 2009

Revised the definition section Added new items including:

Approved Verification Body Biogenic Greenhouse Gas Emission Emission Source

Applicability – added only 2009 CO2 emissions need to be considered for reporting in 2010Added to the reporting requirements to include Tiering and estimation rules from the Climate Registry’s General Reporting Protocol

MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008

MassDEP Proposed Revised Rules-March 10, 2009

Added the following sections Requirements for Certification, Recordkeeping and Public

Release of Facility Reports Triennial Verification of Facility Reports Voluntary Reporting by Facilities Reporting Requirements for Electricity Providers

Public Hearing to be held on April 30th

MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008

Greenhouse Gases - EPA

Proposed EPA Greenhouse Gas InitiativeReporting threshold is 25,000 metric tons of CO2 per facility per year- Schools/Universities are not exempted- An estimated 13,000 facilities will be required to report- Industries include suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, and large direct emitters of greenhouse gasesFirst report due in 2011 for calendar year 2010, except for vehicle and engine manufacturers which would begin reporting for model year 2011Estimated cost for private sector is $160 million for the first year and $127 million each subsequent year ($13K/facility)April 24, 2009 Deadline for Written Comments

MassDEP Regulation Amendments - VOCs

MassDEP VOC Amendments, Consumer Products, & Solvent Metal Degreasing

March 6, 2009- 310 CMR 7.10 and 7.18(8) emissions of volatile organic compounds (VOCs) 

Consumer products manufacturers - DEP will now recognize an Alternative Compliance Plan

allows averaging of VOC emissions among a group of products 

Cold Cleaning Degreaser Exemptions

MassDEP Boiler, Engine, Turbine, and ERP Amendments – December 2007

ERP – Environmental Results Program

Applicability An owner/operator who

installs, after March 23, 2006:

an emergency engine with a rated power output > 37 kW, or

an emergency combustion turbine with a rated power output < one MW

Emission limits

Location

Clean fuel

300 hours cap

Non-turnback hour counter

No pre-construction plan approval

Submit certification within 60 days

Allows for quick replacement

EPA Emergency Generators – Fuel Criteria

October 1, 2010 - Stationary Compression Ignition Internal Combustion Engines (CI ICE) sources with a displacement of less than 30 liters/cylinder

must use non-road diesel fuel that meets sulfur content, cetane index, and maximum aromatic content requirements (40 CFR 80.510(b))

MassDEP Proposed Air Permit Streamlining

Regulations

MassDEP Proposed Air Permit Streamlining

MassDEP proposes to amend 310 CMR 7.02 Plan Approval and Emission Limitations including: Simplifies procedures to allow administrative

amendments Increases the threshold for a Non-Major CPA

from five to ten tons per 12-month period Allows consolidation of multiple plan approvals Elaborates on the emission control

requirements for plan approval, specifically BACT

MassDEP – Proposed Revisions to Hazardous

Waste Regulations

Proposed MassDEP Haz Waste Regs – December 2008

6 public hearings held in December 2008; comment period ended 12/19/08

Current status: To be finalized in April 2009

1. Revised definition of oil and used waste oil (310 CMR 30.010)

2. Crime of moral turpitude defined (310 CMR 30.813(3))

3. Manifest definition – correction

Proposed MassDEP Haz Waste Regs – December 2008Adoption of federal exclusion for medicinal nitroglycerine (310 CMR 30.104)

Currently regulated as a listed hazardous waste under 310 CMR 30.136

Partial adoption of 40 CFR 261.3(g)(1) Finished dosage forms, e.g., tablets or capsules, may be

disposed as a non-hazardous waste Emptied dosage bottles and packages will no longer need to be

triple-rinsed to be considered “empty” and also a non-hazardous waste

MassDEP agrees with EPA that finished dosage forms do not exhibit hazardous waste characteristic

Proposed MassDEP Haz Waste Regs – December 2008

Recyclable material shipments (310 CMR 30.010, 30.222(1), 30.222(4)(b) and 30.223(3)

Clarification that shipments sent off the site of generation must go DIRECTLY to the appropriate authorized facility

Shipments and transportation of Class A Regulated Recyclable Materials (RRMs)

Signage requirements for accumulation areas

Removed references to NFPA Code for signage

Proposed MassDEP Haz Waste Regs – December 2008

Clarification off-spec used oil fuel cannot be shipped to a

B(3) facility that is only permitted to accept specification used oil fuel

a marketer may ship to another marketer or to a burner

a generator of specification used oil fuel shipped using a marketer/transporter does not need a Class A permit

U.S. EPA & NH DES Hazardous/Universal Waste

Rule Amendments

EPA Proposed Amendment to the Universal Waste Rule – Addition of Pharmaceuticals

Proposed Dec. 2, 2008

Comment period extended until March 4, 2009

Defines “pharmaceutical”

Waste determination: P-listed U-listed Characteristic

Could affect: Pharmacies Hospitals Physician’s offices Other healthcare

practitioners Outpatient care centers Ambulatory health care

services Residential care facilities Veterinary clinics Reverse distributors

EPA Proposed Amendment to the Universal Waste Rule – Addition of Pharmaceuticals

Exceptions Syringes containing residue of a P- or U- listed drug hazardous

waste only if the residue exhibits a hazardous waste characteristic

Epinephrine salts Medicinal nitroglycerin

Accumulation time limit

Small and large quantity handlers

Storage and labeling

Tracking shipments

Employee training

NH DES – Hazardous Waste Rule Amendments

Env-Hw 401.03 Exemptions (b)(24)Nitroglycerine listed as PO81

Used for medicinal purposes Does not exhibit a hazardous waste characteristic

Effective Jan. 28, 2009

U.S. EPA – “Lab Rule” Adoption

EPA “Lab Rule”

Dec. 1, 2008 – Part 262 Subpart K

Alters and relieves several traditional RCRA standards for labs in “eligible academic entities”

Colleges and universities, teaching hospitals, or non-profit research institutions with formal affiliation agreement with a college or university

Only applicable in laboratory areas

Based on Laboratories XL Project (Boston College, UMV, UMass)

EPA “Lab Rule”

Example provisions Accumulation of unwanted chemicals/chemical waste for

up to 6 months Excludes annual lab clean-outs from hazardous waste

generator status determination Flexible container labeling and accumulation start date

marking standards Delegation of hazardous waste determination

responsibilities form lab personnel to trained individuals

Optional standard - requires written Laboratory Management Plan

EPA “Lab Rule”

State Regulatory Agency

Lab Rule Promulgation Forecast

Likely to Adopt by 2010

Not Likely to Adopt

Haven’t Decided

Northeast Region

Massachusetts Department of Environmental Protection

Maine Department of Environmental Protection √

Vermont Department of Environmental Conservation √

New Hampshire Department of Environmental Services √

Connecticut Department of Environmental Protection √

Rhode Island Department of Environmental Management √

New York Department of Environmental Conservation √

New Jersey Department of Environmental Protection √

Federal Oil SPCC Regulations

Oil SPCC – 2008 Amendments

Amends the facility security requirements

Amends integrity testing for bulk storage containers for greater flexibility

Sector-specific changes for agriculture and oil production facilities

Amends integrity testing requirements for certain types of animal fat or vegetable oil

Oil SPCC – Dec. 2008 Amendments

UPDATE: Effective date extended to JANUARY 14, 2010; comment period ends May 1, 2009Streamlining and additional flexibility

Tier I Qualified Facilities <10,000 gallon AST and largest tank no greater than 5000 gallons may use EPA Plan Template and Self-Certify

Amends the definition of “facility” Amends the facility diagram requirement Defines “loading/unloading rack” Amends the general secondary containment requirement Exempts non-transportation-related tank trucks from sized

secondary containment requirements

Wastewater and Storm Water Updates – State and Federal

NPDES Non-Contact Cooling Water (NCCW) General Permit – MA and NH

Effective July 31, 2008; 5 year termReplaces General Permits expired on April 25, 2005Covers direct dischargers up to 1 MGD (with exceptions)Establishes permit eligibility, NOI requirements, effluent limits, standards, prohibitions and management practicesNOI must be submitted to both EPA and State AgencyIndividual permit may be required

NPDES NCCW General Permit Conditions

Monitoring, weekly Flow Discharge temperature Water body temperature pH

Monitoring, monthly Total Residual Chlorine

(water-quality based limit based on dilution ratio)

Acute Toxicity (LC50 & C-NOEC,%) – at request of agency

Best Technology Available (BAT)

Monitor and management program for impinged fish

NOI must include a facility-specific BTA

Recordkeeping and reporting

Monthly DMRs

MassDEP Sewer User Regulatory Requirements – revised 2007

MassDEP Permits for Industrial Sewer Users (applications were due in Jan. 2008)

Mercury prohibition: 1 ppb (effective May 2009)

Performance standard: pH limits narrowed to 5 – 10 su

Reporting on toxic pollutants forthcoming

Who Does the Mercury Prohibition Rule Apply to?

All industrial wastewater dischargers located outside the Massachusetts Water Resources Authority (MWRA) sewer service area

Including but not Limited to…

Hospitals

Colleges and universities

Medical schools/laboratories

Manufacturing facilities

Airports

Industrial laundries

Commercial physical and biological research

Electric and gas production

Maintenance facilities for motor freight transport

Dry-cleaning, carpet, upholstery cleaning

Automotive services

What are the requirements? 314 CMR 7.05 - Section 2.f

July 12, 2007 – Determine possible sources of mercury in the discharge and take all reasonable steps to eliminate the mercury

May 1, 2009 – No industrial user shall introduce into a POTW or its wastewater collection system the following: More than one part per billion

(ppb) mercury

Reminder…

This is a Massachusetts DEP regulation…you must also comply with local sewer use ordinances and permits issued by the local POTW!

Storm Water – Industrial Activities

MA and NH - EPA NPDES MSGP (Sept. 29, 2008)

CT – General Permit Renewal without modifications; effective April 1, 2009 – expires Sept. 30, 2010. (March 21, 2009; comments due April 21, 2009)

New registration and fee of $300 required

ME – General Permit reissued Oct. 11, 2005

VT – General Permit issued Aug. 18, 2006

RI – MSGP effective May 1, 2006

EPA Multi-Sector General Permit – Stormwater from Industrial Activities (Sept. 2008)

Notice of Intent – additional information required

Monitoring and reporting Benchmark monitoring values updated Benchmark monitoring schedule changes Storm event criteria changes Benchmark exceedence corrective action requirements

EPA Multi-Sector General Permit – Stormwater from Industrial Activities (Sept. 2008)

MSGP Corrective Actions Conditions Requiring Review and Revision to Eliminate

Problem Conditions Requiring Review to Determine if

Modifications are Necessary Deadlines

Water-Quality Based Control Measures

Non-Numeric Technology Based Effluent Limits

Storm Water – Construction Activities

MA – Joint NPDES Construction General Permit

CT – Stormwater Construction General Permit 10/1/08

ME – Maine Construction General Permit; expired 1/20/08 – administrative continuance

NH – EPA NPDES Construction General Permit

VT – Construction General Permit; amended Feb. 2008

RI – General Permit for Construction Activities 9/26/08

EPA Interim Approach to Applying the Audit Policy to

New Owners

Interim Approach - Audit Policy

“New Owner” – prior to the transaction the new owner:

was not responsible for environmental compliance, did not cause violations being disclosed, could not have prevented occurrence,

The violation must have originated with the prior owner, and

Prior to transaction , neither buyer or seller had the largest ownership share of the other entity or a common corporate parent

EPA Audit Policy – Interim Approach (8/1/08)

New owners – incentive to address environmental noncompliance that began prior to acquisitionIncentives include penalty mitigation beyond what the Audit Policy providesNew owners remain eligible for the Interim approach up to nine months after the transaction closing dateUpfront Audit Agreement with EPA or Disclosure within 21 days of discovery or within 45 days of the closing (whichever is shorter)Electronic Self-Disclosure available

Interim Approach – Audit Policy: Which new owners should consider it?

May already be auditing and assessing their new facilities

May have funding available to fix problems

Opportunity to manage and reduce risk by addressing and disclosing noncompliance

Interim Approach – Audit Policy: Which new owners may not be interested?

May still have to pay substantial civil penalties, unless economic benefit portion is insignificant

When many/complex new facilities are involved may be difficult to have a reasonable idea of the extent of noncompliance issues

Concerns about how EPA will treat self-disclosures

Interim Approach – Audit Policy: Nine Criteria

1. Systematic Discovery Condition

2. Voluntary Discovery Condition

3. Prompt Disclosure Condition

4. Discovery and Disclosure Independent of Government of 3rd Party

5. Correction and Remediation Condition

6. Prevent Recurrence

7. No Repeat Violations Condition

8. Other Violations Excluded Condition

9. Cooperation

Interim Approach – Audit Policy: Economic Benefit

No penalties assessed against new owner for the period before the acquisition datePenalties will be assessed for economic benefit associated with avoided operation and maintenance costsPenalties will not be assessed against delayed capital expenditures if violations are corrected in accordance with Audit Policy (within 60 days)EPA reserves the right to assess any economic benefit even when all Audit Policy conditions are met

Other

MA New Vapor Intrusion Guidance (groundwater remediation)

Effective: March 27, 2009 Regulation: Link:

http://www.mass.gov/dep/cleanup/laws/policies.htm#vib

Groundwater Discharge regulations Streamlines existing permitting process and reduces the time

it takes an applicant to obtain a groundwater discharge permit

Effective: March 20, 2009 Regulation: 310 CMR 5.00 Link: http://www.mass.gov/dep/water/laws/regulati.htm#gwp

Questions?

Sandra J. Perry

Consulting Services Manager

617.686.7713

sperry@triumvirate.com

Rick Foote

Senior Environmental Compliance Advisor

617.686.6184

rfoote@triumvirate.com