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Regulatory Updates and Initiatives

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  • 1. Regulatory Updates and Initiatives Triumvirate Environmental April 9, 2009
  • 2. Today’s Speakers
    • Sandra J. Perry, Triumvirate Environmental
      • Consulting Services and Treatment Technologies Manager / Principal Consultant
    • Rick 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
  • 3. 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
  • 4. 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
  • 5. Emergency Planning & Community Right-to-Know Act and MassDEP Toxics Use Reduction
  • 6. 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
  • 7. 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)
  • 8. Massachusetts Toxic 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 
  • 9. 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
  • 10. 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.
  • 11. Air Emissions Greenhouse Gas Initiatives
  • 12. 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
  • 13. 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
  • 14. Ten States Involved with RGGI
    • Connecticut
    • Delaware
    • Maine
    • Maryland
    • Massachusetts
    • New Hampshire
    • New Jersey
    • New York
    • Rhode Island
    • Vermont
    • The first mandatory cap-and-trade program in the United States to reduce global warming gas emissions.
  • 15. Cap-and-Trade System
    • Market-based cap and trade
      • Set amount of allowances for CO 2 emissions are issued through auctions
      • 1 allowance= X tons of CO 2 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
  • 16. Greenhouse Gases – States
  • 17. New England States
    • VT – Proposed CO2 Budget Trading Program (to establish the Vermont component of the RGGI
    • NH – 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 2008
    • ME – 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 Distribution
    • MA - Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008
  • 18.
    • Applicability 
      • 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
    MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008
  • 19. 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. 2008
  • 20. MassDEP – Implementation Deadlines
    • 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. 2008
  • 21. 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 2010
    • Added 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. 2008
  • 22. 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 30 th
    MassDEP Mandatory Greenhouse Gas Reporting Emergency Regulation – Dec. 2008
  • 23. Greenhouse Gases - EPA
  • 24. Proposed EPA Greenhouse Gas Initiative
    • Reporting 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 gases
    • First report due in 2011 for calendar year 2010, except for vehicle and engine manufacturers which would begin reporting for model year 2011
    • Estimated 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
  • 25. MassDEP Regulation Amendments - VOCs
  • 26. 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
  • 27. 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
  • 28. 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))
  • 29. MassDEP Proposed Air Permit Streamlining Regulations
  • 30. 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
  • 31. MassDEP – Proposed Revisions to Hazardous Waste Regulations
  • 32. 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
    • Revised definition of oil and used waste oil (310 CMR 30.010)
    • Crime of moral turpitude defined (310 CMR 30.813(3))
    • Manifest definition – correction
  • 33. Proposed MassDEP Haz Waste Regs – December 2008
    • Adoption 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
  • 34. 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
  • 35. 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
  • 36. U.S. EPA & NH DES Hazardous/Universal Waste Rule Amendments
  • 37. 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
  • 38. 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
  • 39. 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
  • 40. U.S. EPA – “Lab Rule” Adoption
  • 41. 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)
  • 42. 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
  • 43. EPA “Lab Rule” √ Department of Environmental Protection New Jersey √ Department of Environmental Conservation New York √ Department of Environmental Management Rhode Island √ Department of Environmental Protection Connecticut √ Department of Environmental Services New Hampshire √ Department of Environmental Conservation Vermont √ Department of Environmental Protection Maine Department of Environmental Protection Massachusetts Northeast Region Haven’t Decided Not Likely to Adopt Likely to Adopt by 2010 Lab Rule Promulgation Forecast Regulatory Agency State
  • 44. Federal Oil SPCC Regulations
  • 45. 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
  • 46. Oil SPCC – Dec. 2008 Amendments
    • UPDATE: Effective date extended to JANUARY 14, 2010; comment period ends May 1, 2009
    • Streamlining 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
  • 47. Wastewater and Storm Water Updates – State and Federal
  • 48. NPDES Non-Contact Cooling Water (NCCW) General Permit – MA and NH
    • Effective July 31, 2008; 5 year term
    • Replaces General Permits expired on April 25, 2005
    • Covers direct dischargers up to 1 MGD (with exceptions)
    • Establishes permit eligibility, NOI requirements, effluent limits, standards, prohibitions and management practices
    • NOI must be submitted to both EPA and State Agency
    • Individual permit may be required
  • 49. 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
  • 50. 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
  • 51. Who Does the Mercury Prohibition Rule Apply to?
    • All industrial wastewater dischargers located outside the Massachusetts Water Resources Authority (MWRA) sewer service area
  • 52. 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
  • 53. 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
  • 54. Reminder…
    • This is a Massachusetts DEP regulation…you must also comply with local sewer use ordinances and permits issued by the local POTW!
  • 55. 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
  • 56. 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
  • 57. 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
  • 58. 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
  • 59. EPA Interim Approach to Applying the Audit Policy to New Owners
  • 60. 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
  • 61. EPA Audit Policy – Interim Approach (8/1/08)
    • New owners – incentive to address environmental noncompliance that began prior to acquisition
    • Incentives include penalty mitigation beyond what the Audit Policy provides
    • New owners remain eligible for the Interim approach up to nine months after the transaction closing date
    • Upfront 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
  • 62. 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
  • 63. 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
  • 64. Interim Approach – Audit Policy: Nine Criteria
    • Systematic Discovery Condition
    • Voluntary Discovery Condition
    • Prompt Disclosure Condition
    • Discovery and Disclosure Independent of Government of 3 rd Party
    • Correction and Remediation Condition
    • Prevent Recurrence
    • No Repeat Violations Condition
    • Other Violations Excluded Condition
    • Cooperation
  • 65. Interim Approach – Audit Policy: Economic Benefit
    • No penalties assessed against new owner for the period before the acquisition date
    • Penalties will be assessed for economic benefit associated with avoided operation and maintenance costs
    • Penalties 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
  • 66. 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
  • 67. Questions?
    • Sandra J. Perry
    • Consulting Services Manager
    • 617.686.7713
    • [email_address]
    • Rick Foote
    • Senior Environmental Compliance Advisor
    • 617.686.6184
    • [email_address]