DOT Says It’s Okay to Follow 2017 ICAO and IMDG Rules

March 13, 2017

The DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA), recently issued a statement indicating that the agency will not take enforcement action against shippers of hazardous materials that are following the requirements of the recently adopted 2017–2018 ICAO Technical Instructions for the Safe Transportation of Dangerous Goods and Amendment 38-16 of the International Maritime Dangerous Goods Code.

PHMSA will permit use of the 2015–2016 or the newer standards until the agency decides whether or not to adopt the new standards. This should be good news to U.S. shippers who could find themselves out of compliance with the international regulations for exports that were shipped in accordance with the older PHMSA regulations.

New Hazardous Waste Regulations in Illinois

Illinois EPA recently received approval from the Federal EPA to revise its rules to incorporate recent changes in the federal regulations. Although most of the Federal regulations were adopted, the following state rules are more stringent:

  • An annual (rather than biennial) report is required
  • All liquids and certain hazardous wastes are prohibited from disposal in landfills
  • Mixtures of solid waste and characteristic waste do not qualify for exemptions to the derived-from rule
  • A written report to IEPA within 15 days of implementing the hazardous waste contingency plan
  • Additional requirements related to the content of TSDF contingent corrective measures plans.

The revisions went into effect on March 10, 2017.

Massachusetts to Implement NPDES Permits in State

Massachusetts Governor Charlie Baker recently filed An Act to Enable the Commonwealth’s Administration of the Massachusetts Pollutant Discharge Elimination System. The legislation will allow the Massachusetts Department of Environmental Protection (MassDEP) to join forty-six other states in administering the EPA’s National Pollutant Discharge Elimination System (NPDES) for federal water quality protection. Additionally, the proposal will allow the Commonwealth greater oversight of water quality monitoring, assessment, and water quality standards programs as well as increased data availability to ensure development of scientifically based permits that protect Massachusetts’ waterbodies. Governor Baker’s Fiscal Year 2018 budget proposal includes a $1.4 million commitment as an initial investment in NPDES to support program development and build robust water quality monitoring and analysis programs.

“Massachusetts has a proud history of working to protect and improve water quality, and this legislation will provide greater certainty for the Commonwealth once federal authority for this program is placed into the hands of our state experts,” said Governor Baker. “By joining 46 other states with the federal delegation, the Commonwealth will be able to implement a strong, science-based program focused on protecting our natural resources. With its comprehensive knowledge of the Commonwealth’s waterbodies and communities, MassDEP is uniquely suited to write permits that will protect our state’s waters.”

“The Commonwealth has a proven-track record of implementing federally delegated programs, and this legislation will align water quality efforts with priority programs,” said Lieutenant Governor Karyn Polito. “National Pollutant Discharge Elimination System delegation will empower state government to work even more cooperatively with our cities and towns to preserve and protect our environmental resources.”

Under the federal Clean Water Act, EPA administers numerous water quality programs across the United States, including efforts like NPDES, which regulates public and private discharges of wastewater and stormwater. As states have the option of applying to the EPA for authorization to administer the program at the state level, subject to federal oversight, the legislation filed by the Baker-Polito Administration will make changes to the Commonwealth’s Clean Waters Act, which is needed for MassDEP to make an application to the EPA.

Massachusetts, through MassDEP, has a decades-long history of effectively and successfully administering other federal environmental programs in areas of drinking water, hazardous waste, and clean air, as well as other state water programs such as Title 5, wetlands, and water management. In seeking authorization from EPA to administer the NPDES program, MassDEP will continue to promote the use of science-based water monitoring information during permitting decisions and will provide ongoing effective technical assistance to permittees, while ensuring compliance with permit requirements.

MassDEP will also embrace the concept of integrated planning and will work closely with local partners to establish a program that takes a holistic view of clean water requirements and implementation schedules.

The proposed $1.4 million in seed funding will enable MassDEP to hire 12 new staffers to phase-in NPDES program development, and conduct associated technical assistance and water quality analysis. This appropriation will increase in Fiscal Year 2019, as the program is fully implemented.

An Act to Enable the Commonwealth’s Administration of the Massachusetts Pollutant Discharge Elimination System, if passed, will be part of a submission made by MassDEP to EPA’s New England Regional Office in Boston. As part of its application, MassDEP will be required to demonstrate that it has developed an effective plan for managing the NPDES program, that its legal authorities are sufficient to meet federal requirements and that a plan for funding is in place. While the formal submission cannot be made until the Baker-Polito Administration’s proposal receives legislative approval, MassDEP is continuing to consult with EPA on delegation requirements and will develop other elements of the plan for submittal.

Climate Change Resolution Adopted in California

The California State Water Resources Control Board recently adopted a resolution requiring a proactive approach to climate change in all Board actions, including drinking water regulation, water quality protection, and financial assistance.

“Today’s Board action is part of California’s continuing leadership on climate change,” said State Water Board Vice-Chair Fran Spivy-Weber, and co-chair of the Brown administration’s water-energy team of the Climate Action Team (WET-CAT). “As our dramatic swing from severe drought to record-setting precipitation shows, we are already experiencing the impacts of more extreme weather, and face significant challenges to improve the resiliency of our water systems, from our dams to our groundwater basins.”

“The Water Boards have a critical role to play because our programs range across water conservation, recycling, stormwater management, groundwater management, and surface water allocation. We can reduce greenhouse gas emissions, protect our infrastructure and our ecosystems,” said Spivy-Weber.

This action builds on a resolution adopted by the Board in 2007, which set forth initial actions it should take to respond to climate change and support the implementation of Assembly Bill (AB) 32, the landmark climate change law that was adopted in 2006. Since that time, the Brown administration developed the California Water Action Plan, a blueprint for achieving more sustainable water management by improving water supply reliability, restoring important wildlife and habitat, and making the state’s water systems and environment more resilient.

Since 2007, the State and Regional Water Boards have taken a variety of actions to respond to climate change impacts. Examples include funding the expansion of recycled water to increase drought resilience, adopting regulations to increase the collection of urban stormwater, and reducing flood risk and enhancing water supply.

In addition, the Water Boards are implementing legislative mandates to strengthen climate change resilience, including the Sustainable Groundwater Management Act, which will bring depleted groundwater basins into balance to provide a buffer against future droughts. The Los Angeles Regional Board has been active as well. To learn more, visit their climate change portal.

The directives called for in the recent resolution include tracking and reporting on actions to reduce greenhouse gases, coordination with internal and external stakeholders to account for climate change, and development of recommendations for specific, enforceable actions over time. One of the directives requires collaboration with the California Air Resources Board and other agencies to reduce methane emissions from landfills, feedlots, and wastewater treatment plants, as part of the state’s goal of reducing short-lived climate pollutants.

The resolution also requires State Water Board staff to use current models and data to inform Board actions. State regulators can no longer rely solely on historical data to guide decisions under climate change. To increase regulatory consistency, the resolution also requires staff to use climate change policy guidance from other agencies. For example, for decisions relating to coastal infrastructure protection, staff must use guidance from the California Coastal Commission and Ocean Protection Council.

Additional Climate Change and Drought Resources

For more information on the state’s effort to combat and adapt to climate change, visit the climate change portal here. To follow the state and regional water board efforts on this, visit the climate change page here.

To learn about all the actions the state has taken to manage our water system and cope with the impacts of the drought, visit Drought.CA.Gov.

Gallo Glass to Pay $2 Million for Hazardous Waste Violations

Gallo Glass Co., which operates a glass bottle manufacturing plant in Modesto, will pay $2 million to settle alleged violations of California’s hazardous waste laws, the Department of Toxic Substances Control (DTSC) announced recently.

The California Attorney General’s Office filed the settlement on behalf of DTSC in Alameda County Superior Court. Gallo agreed to pay $2 million in penalties for alleged violations discovered during multiple inspections.

The settlement stemmed from a complaint filed in February 2015 and an amended complaint filed April 12, 2015, that alleged the company violated various provisions of the hazardous waste control law, including illegal management and disposal of dust containing lead, arsenic, cadmium, and selenium at its facility. The contaminated dust was collected from air pollution control equipment used to capture regulated pollutants that are emitted from the glass-making furnaces. The pollutants would otherwise be released into the environment. The dust must be properly managed and disposed of under California law.

DTSC also alleged that Gallo:

  • Illegally stored, treated and disposed of hazardous waste at various areas in the facility
  • Failed to minimize releases of hazardous waste to the environment
  • Inadequately trained staff to handle hazardous waste at the facility
  • Failed to notify DTSC of various fires that occurred at its facility between 2006 and 2011

“Compliance with hazardous waste laws is fundamental to protecting the health of the community, workers and the environment,” said Keith Kihara, chief of DTSC’s enforcement division. “We are encouraged that Gallo is working with us to ensure that it complies with California’s hazardous waste laws.”

As a condition of the settlement, Gallo will take a number of steps designed to prevent future violations, including better labeling and tracking of hazardous waste and maintaining best practices to manage hazardous waste and used oil.

The majority of the penalty will go into DTSC’s Orphan Site Fund. The account funds cleanup of sites that are not on the National Priorities List, but where hazardous substances still pose an environmental or public health threat and the parties responsible for the contamination are unknown, or unwilling or unable to pay for the cleanup.

Court documents related to the settlement are available here.

Northern Metals Settled Air Violations for $2.5 Million

A north Minneapolis metal recycler that the Minnesota Pollution Control Agency (MPCA) alleged was contributing to poor air quality has agreed in a settlement to move its metal shredder to a non-metro location, pay a large penalty, reimburse the state’s costs, and provide funding to the city of Minneapolis for community health projects.

The settlement has been submitted to the Ramsey County District Court for final approval. The settlement document (Consent Decree) is available on the MPCA’s North Minneapolis Air Monitoring Project webpage.

Under the settlement, Northern Metals Recycling will move the shredder to a new, non-metro location by August 2019 and pay $2.5 million in costs and penalties, including:

  • A $1 million civil penalty
  • Payment for three years of continued air monitoring near the facility
  • Reimbursement to the state for past monitoring costs, court costs, and legal fees
  • $600,000 to the city of Minneapolis for community heath projects to benefit nearby communities

“This settlement is a welcome start to addressing a problem for residents in North Minneapolis who are already overburdened with health and pollution issues,” said MPCA Commissioner John Linc Stine. “The company recognized the serious nature of its violations, and they’ve chosen to take the right steps.”

“We know that North Minneapolis residents are concerned about allowing the shredder to continue operating for up to two-and-a-half years in that location,” Stine said. “The company has made the improvements and passed the emissions testing we wanted them to complete, and they are complying with their permit. They’ve committed to doing a better job, and we will be closely watching over their operation.”

Stine said that while pollutant levels in the area have been reduced since the partial shutdown and improvements made by Northern Metals, they’re still higher than the agency would like. “We’ve got more work to do in that area,” he added.

The settlement is one of the largest ever negotiated by the MPCA. The community funding provision settles claims by the city, which joined as a party to settlement negotiations last fall. The city held two public meetings to get public input on the community health funding.

Minneapolis Mayor Betsy Hodges said in a statement, “This settlement provides a measure of environmental justice for the people of North Minneapolis. We will be using the settlement to do what the residents of North Minneapolis told us they wanted us to do with it: address and mitigate asthma and lead poisoning in the neighborhoods that have some of the highest child lead-poisoning rates in our city and the highest asthma hospitalization rate in our state.”

The settlement resolves an action that Northern Metals started in Ramsey County District Court in the spring of 2015 to try to shut down MPCA air monitors near the shredder. It also ends a process the MPCA began to revoke Northern Metals’ operating permit after determining the company had not provided accurate information in its permit application or in response to MPCA requests for information.

The MPCA began monitoring air quality near the facility, at 2800 N. Pacific St., in the fall of 2014. The monitor found particulate matter above state standards. To investigate further, the agency added a second monitor to “bookend” the facility. Data from these monitors suggested emissions from Northern Metals were contributing to violations of the standard.

Analysis of a year’s worth of data in the spring of 2016 showed air around the facility also had elevated levels of lead, chromium, cobalt, and nickel. This finding, along with MPCA’s discovery that Northern Metals was operating an unpermitted source of particulates, prompted the agency to ask the court to shut down the facility. The unpermitted source also was a basis of MPCA’s action to revoke the facility’s operating permit.

When calculating penalties, the MPCA takes into account how seriously the violations affected the environment, whether they were first-time or repeat violations, and how promptly the violations were reported to authorities. The agency also attempts to recover the calculated economic benefit gained by failure to comply with environmental laws in a timely manner.

California Growers Assessed Penalties for Failure to Obtain Water Quality Permits

The Central Valley Regional Water Quality Control Board approved penalties for growers in Fresno, Madera, Merced, Stanislaus, and Tulare counties who failed to obtain regulatory coverage, or failed to submit required farm evaluations that identify management practices that prevent pollution into surface and groundwater. Penalties ranged from $8,135 to $34,490.

“Farmers who fail to obtain regulatory coverage or don’t submit required management practice reports undermine our Irrigated Lands Regulatory Program,” said Andrew Altevogt, assistant executive officer for the Central Valley Water Board. “With these penalties, the Board is sending a strong message that growers must obtain the appropriate permit coverage and coalition members must honor their reporting obligations. The number of penalties assessed demonstrates the Board’s commitment to obtaining compliance with Board orders.”

State law requires commercial irrigated lands to acquire water quality permits to ensure pesticides and fertilizers used on cropland do not run off into streams, or enter groundwater. The permits allow growers to join coalitions that conduct monitoring and provide reports to the Board on behalf of the growers. The permits require coalition members to annually submit a farm evaluation that identifies pollution management practices, surface water discharge points, wellhead protection and other information pertinent to water quality protection.

The penalties approved during the February 23 Board meeting were assessed to five growers who failed to obtain permit coverage, and three growers who failed to provide farm evaluations:

  • Baldev & Kamaljit Batth, Fresno County – $35,490
  • Alex V. & Vera A. Kobets, Fresno County – $10,000
  • Gilbert & Enedina Marroquin, Tulare County – $30,030
  • William and Maria Egleston, Merced County – $23,716
  • Brooks & Arlene Rushing, as Individuals and in Their Representative Capacity as Trustees for the Brooks J & Arlene J Rushing Trust, Stanislaus County – $8,135
  • Emma J. Bounds, as an Individual and as Trustee for the Bounds Family Trust, Madera County – $26,520
  • Singh Farms, LLC, Madera County – $35,490
  • Victor Produce, Inc., Merced County – $35,490

Those wishing to learn more about the Irrigated Lands Regulatory Program (ILRP) can visit the Central Valley Water Board’s ILRP website here.

Delaware City Refining Company/PBF Energy Fined $150,000 for Violation of Secretary’s Order and Illegal Shipment of Petroleum

DNREC Secretary David Small issued a $150,000 fine in a Notice of Penalty Assessment and Secretary’s Order to the Delaware City Refining Company and PBF Energy for violating an earlier DNREC Order that allowed the refinery to ship crude oil from Delaware City to only its Paulsboro, New Jersey, facility as a condition of DNREC’s granting an air permit to PBF Energy and DCRC in 2013.

DNREC’s investigation found that PBF Energy violated the Order throughout 2014, when it made 17 barge shipments of crude oil over 15 days to locations other than PBF Energy’s Paulsboro refinery. DNREC determined that the Delaware City refinery had violated the order not only by failing to make timely disclosure of those shipments to DNREC, but had also concealed the nature and extent of the shipments, and misrepresented to DNREC the number of shipments that went to other facilities.

The penalty assessment and Secretary’s Order conclude that Delaware City Refining Company/PBF Energy violated the 2013 Secretary’s Order, by shipping crude oil from the Delaware City terminal to three locations other than PBF Energy’s Paulsboro, New Jersey, refinery, on 15 days in 2014, making a total of 17 separate barge shipments containing approximately 35.7 million gallons of crude oil in total. Contrary to terms of the 2013 Order, DCRC did not disclose these shipments to DNREC, and did not seek a status determination regarding the change in operations or a modification of the terms of the Order.

The excerpt below from the 2013 Order reiterates the representations made by DCRC, and that DCRC, upon occurrence of any change in circumstances or operations with respect to the crude oil terminal, was required by DNREC to provide notice and take additional action: “Applicant stated on the record that the proposed use would be consistent with the past use and that the activity would be limited to the transfer of North American-produced crude oil from the Facility’s docks onto barges to be transported up the Delaware River to Applicant’s sister company refinery in Paulsboro, New Jersey, also owned by PBF Energy.”

The order further states: “This determination may be subject to change should the Department determine that the proposed usage has changed or that the information in this record is incorrect or incomplete. ...Applicant should request a Coastal Zone Status Decision if future physical or operational changes are intended or implemented.”

The Delaware City Refining Company and PBF Energy have 30 days to appeal the penalty and Secretary’s Order, which can be found on the DNREC website at

EPA Seeks Public Comment on Draft Permits and Aquifer Exemption for Uranium Mining Project

EPA has issued two draft Underground Injection Control (UIC) Area Permits to Powertech (USA), Inc., for injection activities related to a proposed uranium recovery project in the southern Black Hills region in Custer and Fall River Counties of South Dakota. EPA will conduct information sessions combined with public hearings on April 27th and on May 8 through May 11 at the times and locations detailed below. EPA will accept public comments on the draft permits and a proposed aquifer exemption associated with the project through May 19, 2017.

The draft permits issued recently include a UIC Class III Area Permit for injection wells for the in-situ recovery (ISR) of uranium in the Inyan Kara Group aquifers and a UIC Class V Area Permit for deep injection wells that would be used to dispose of ISR process waste fluids into the Minnelusa Formation below the Inyan Kara after treatment. Under the terms of the draft permits, waste injected under the Class V permit must be treated prior to being injected and must meet all radioactive waste and hazardous waste standards. Monitoring of the underground sources of drinking water surrounding the Class III injection wellfields will take place before, during and after ISR operations to ensure the underground sources of drinking water are protected.

EPA is also proposing an aquifer exemption approval in connection with the draft UIC Class III Area Permit. Specifically, this approval would exempt the uranium-bearing portions of the Inyan Kara Group aquifers from protection under the Safe Drinking Water Act. Such an exemption must be in place before ISR activities within these aquifers can occur.

Under its obligation to comply with the National Historic Preservation Act and under EPA’s Tribal Policy on Consultation and Coordination with Indian Tribes, EPA has been consulting and coordinating with several interested Tribes to identify the potential effects of the proposed project on traditional cultural places, historic and sacred sites. EPA will continue to consult and coordinate with Tribes as necessary throughout the public comment period concerning these proposed permitting actions.

Comments on these draft permits and the aquifer exemption will be accepted until midnight mountain time, May 19, 2017. EPA’s final permit decision will be based on an evaluation of comments received and a determination of whether underground sources of drinking water are protected. The draft permits can be found at the EPA Region 8 UIC Program website:

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