EnviroNotes

FEBRUARY 2006

U.S. EPA Grants Extension of Feb. '06 Deadline for Spill Prevention, Control and Countermeasure Plans
U.S. EPA Approves IDEM’s Streamlined Mercury Variance
IDEM Seeks Comments on E-Waste Rule

U.S. EPA Grants Extension of February 2006 Deadline for Spill Prevention, Control and Countermeasure Plans

By Andy Bowman, Chair, Environmental Law Group, Bingham McHale LLP

The United States Environmental Protection Agency (EPA) published amendments to the Spill Prevention, Control and Countermeasure (SPCC) rule on July 17, 2002 (67 Federal Register 47042). The new rule became effective August 16, 2002. The rule requires covered facilities to prepare and implement a SPCC plan. Covered facilities under the new rule include anyone drilling, producing, gathering, storing, processing, refining, transferring, distributing, using or consuming oil and oil products where due to location may reasonably be expected to discharge to navigable waters of the United States, including wetlands, with aggregate aboveground oil storage capacity of more than 1,320 gallons, or underground oil storage capacity of more than 45,000 gallons. The former threshold requiring a plan if any single container had a capacity of greater than 660 gallons has been eliminated. Oil includes petroleum, sludge, fuel oil, vegetable oils, and oils, fats and greases from animal or fish origin. Containers of 55 gallons or more must be counted toward the aboveground capacity threshold of 1,320 gallons.

The July 17, 2002 Federal Register notice includes a table comparing the former rule with the revised rule to help identify new requirements (67 Federal Register 47042). Generally, the new rule reduces paperwork requirements, but does include new periodic integrity testing requirements as well as other changes. Existing covered facilities originally were required to amend their SPCC plans by February 17, 2003, and implement the changes by August 18, 2003. Since 2002 the EPA has announced three extensions of the deadlines for SPCC plan amendments. The fourth and latest extension moves the current deadline for existing facilities to amend their SPCC plans to comply with the new rules from February 17, 2006 to October 31, 2007. Amended SPCC Plans must be implemented by October 17, 2007. 71 Federal Register 8462 (February 7, 2006).

EPA published a notice in the December 12, 2005 Federal Register (70 Federal Register 73518) announcing a proposal to allow facilities with a maximum oil storage capacity of 10,000 gallons or less and no reportable oil discharges in the prior ten years or since becoming subject to the SPCC rule the option of self-certifying their SPCC plans in lieu of using a professional engineer. The proposed rule also eliminates the requirement for an equipment specific secondary containment impracticability determination for certain oil-filled operational equipment. The EPA has proposed exempting motive power containers, such as fuel tanks and onboard hydraulics and lubrication systems from the SPCC rule. EPA’s extension of the deadline to amend and implement SPCC Plans is intended to give EPA time to finalize the proposed amendments.

U.S. EPA Approves IDEM’s Streamlined Mercury Variance

By Stacey Pfeffer, Environmental Policy Analyst, Bingham McHale LLP

A final rule establishing a streamlined process for obtaining a variance from a water-quality based effluent limitation (WQBEL) for mercury was published in the May 1, 2005 Indiana Register and became effective on May 6, 2005. U.S. EPA approved the rule, with the exception of 327 IAC 5-3.5-4(b)(1) and 327 IAC 5-3.5-10 in a December 21, 2005 letter to IDEM. The Streamlined Mercury Variance (SMV) rule is available to industrial dischargers and publicly owned treatment works (POTWs) that have an NPDES permit and do not consistently achieve compliance with the mercury limitations, with the following exceptions: (1) new or recommencing Great Lake system dischargers, except for ones provided under 327 IAC 2-1.5-17(a)(3); (2) discharges directly to the Ohio River; and (3) dischargers that have an average concentration of mercury that exceeds 30 parts per trillion. The streamlined process was developed because the IDEM recognizes there is a lack of economically viable, end-of-pipe treatment options available.

The SMV application should be submitted in conjunction with a new, renewal, or modified NPDES permit application. The SMV application must include all the information required by the rule, including a Pollutant Minimization Program Plan (PMPP). The application has five parts. Part One consists of general information such as the name of the facility and the NPDES permit number. Part Two covers PMPP, which is the plan for developing and implementing the Pollutant Minimization Program (PMP). The PMP is developed by the applicant to identify and minimize the discharge of mercury into the environment. Part Three of the application addresses the PMPP planned activities that will be conducted to eliminate or minimize mercury from the sources identified in Part Two. Part Four of the application requires facilities to provide all mercury monitoring data accumulated during the past two year period. The last section of the application, Part Five, addresses the additional requirements of the SMV, including a requirement for the applicant to publish a public notice of the draft PMPP and submit received comments and responses as part of the SMV application. Part Five also requires the applicant to provide a schedule for submission of annual reports.

The PMPP is the main component of the SMV application process. An application is not considered complete unless it contains all of the PMPP requirements described in 327 IAC 5-3.5-9. These requirements include a list of all potential and known sources of mercury. The PMPP must list the activities necessary to eliminate or minimize the release of mercury to the water. If mercury monitoring is required by the NPDES permit, then the applicant is required to submit the past two years of data. Also, The applicant must identify resources and staff necessary for implementation of the PMPP. POTW applicants, in addition to the requirements listed above, must include possible mercury sources in the facility’s influent and a plan for reducing or eliminating those sources of mercury. The PMPP for a POTW must also contain an education program for employees and the public within the service area of the facility.

Upon approval of the SMV, an interim discharge limit for mercury will be incorporated into the permit in lieu of the mercury WQBEL. The interim discharge limit will be based on the representative data that has been analyzed using Analytical Method 1631 or another method approved by the IDEM. The highest daily value becomes the annual average effluent limitation during the period of the variance, not to exceed 30 parts per trillion. If an interim discharge limit exceeds a required technology-based limit, such as a federal effluent guideline, than the technology-based limit will be the interim discharge limit for the effective period of the variance.

Approval of the SMV will include a 30-day public comment period. In addition, The SMV will be incorporated as a condition of the NPDES permit through the issuance, renewal, or modification of the NPDES permit. The permit will include the requirements of the PMPP and any applicable interim discharge limits. The IDEM will send U.S. EPA documentation demonstrating compliance with the SMV rule with regard to the application and incorporation of the SMV into the NPDES permit. The U.S. EPA may, at its discretion, review the NPDES permit and object to permits that it believes are inconsistent with the SMV rule. The SMV remains in effect until the NPDES permit expires, at such time, the SMV may be renewed.

The SMV Rule for can be viewed at here.

IDEM Seeks Comments on E-Waste Rule

By Andy Bowman, Chair, Environmental Law Group, Bingham McHale LLP

The IDEM is seeking comments on a proposed rulemaking to regulate electronic waste (e-waste), such as computer hardware, cellular and cordless telephones, printers, DVD players, VCRs, computer monitors, televisions and other cathode ray tubes (CRT), as a universal waste. Universal wastes are subjected to reduced management requirements in order to promote recycling. The IDEM states that Federal law excludes CRTs from hazardous waste regulations if certain standards are met. The IDEM’s proposal would be broader in scope covering other e-wastes in addition to CRTs.

Comments must be submitted by March 3, 2006 and should be addressed to: #05-181 (SWMB) [E-Waste Rule], Marjorie Samuel, Rules, Outreach and Planning Section, Office of Land Quality, Indiana Department of Environmental Management, 100 N. Senate Avenue, Indianapolis, Indiana 46204.

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