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GEC Newsletter— Winter 2004


In this Issue...


2004 Regulatory Calendar

Don’t let an important deadline slip past you this year! Use this listing and your previous years’ submittals to keep track of what you need to tackle now and what is due later in the year. GEC wishes you a safe, happy – and fine-free – 2004!

TURA Reminder
For companies using listed chemicals above certain threshold quantities, now is the time to update your Toxic Use Reduction (TUR) Plan. Employees are required to be part of the planning process and are a good source of ideas for reducing toxic chemical use. TUR Plan Update Summaries are due to the MADEP in even numbered years (including 2004!) by July 1st, and the employee notices must be posted at least six months ahead of the due date.

Semi-Annual Wastewater Samples
Companies requiring semi-annual sampling of their wastewater discharges to POTW usually have to collect samples and submit sampling reports documenting permit compliance in December and June – check your permit conditions! GEC can assist in collecting grab or 24-hr. composite samples, arranging analysis, and completing reports.

Air Quality Reports
If you have permitted air emission sources (boilers, coaters, paint booths, etc.), this is a great time to collect the 2003 chemical use information and records, while the information is still fresh, and complete your annual Source Registration and Emission Statements. This process also gives you the opportunity to report certain changes in process or equipment. You should have received your notices from MADEP in January.

Form R & S Reports
This is also an ideal time to think about pulling 2003 chemical data together for threshold determinations to determine whether your company needs to file Form R and/or Form S reports. If you do, the deadline for submittal is July 1, 2004 (same as your TUR Plan deadline!). Remember, the thresholds are lower now for several chemicals – including persistent bioaccumulative toxics (PBTs) and polycyclic aromatic compounds (PACs) – so fuel-burning sources, like boilers, may now need to be considered.

Tier II Reports
For companies storing hazardous or extremely hazardous materials in quantities exceeding certain thresholds, March 1, 2004 is the annual deadline for filing the Tier II reports.

SPCC Plans
Spill Pollution Control and Countermeasure (SPCC) Plans may need to be revised – with a Professional Engineer (PE) certification – by August 17, 2004.

Form 300A Summary Posting
Summary Reports for 2003 work-related injuries and illnesses should be posted between February 1 and April 30 each year.

DOT Hazmat Security Plan
The recent legislation from the U.S. Department of Transportation, in conjunction with the Office of Homeland Security, regarding hazardous materials transportation should have made many of you develop and implement plans by September 25, 2003 to address security concerns. If you ship loads requiring placards your plan should already be in place. If you have not yet implemented or prepared your plan now is the time!

Snow and Ice Removal and Disposal
Given the December snowstorm many are already faced with snow and ice disposal problems. Remember that the MADEP has developed guidance for proper disposal to assure that there is not impact to water supplies or wetland resource areas. If you are in the position of overseeing snow and ice removal and disposal, you may want to review the policy on line at (http://www.state.ma.us/dep/brp/files/snowdisp.htm) to assure that you do not inadvertently run into problems with regulators.

Please contact Neil Inglis, Environmental, Health and Safety Manager at GEC, if you have any questions or would like additional assistance with any of these required submittals or deadlines.

Will “All Appropriate Inquiry” Change Site Assessments?

The Environmental Protection Agency (EPA) is moving forward with development of a proposed rule that may change due diligence investigations in the future. The rulemaking changes are a product of the need to conduct “All Appropriate Inquiry” in order to qualify for one of the Landowner Liability Protections established under the Small Business Liability Relief and Brownfields Revitalization Act. Many are concerned that the All Appropriate Inquiry (AAI) standard will change how site assessments are conducted and will significantly increase the costs associated with due diligence.

For the vast majority of the site assessments conducted by GEC and other consulting firms, due diligence investigations comport to the standards established by the American Society for Testing and Materials (ASTM) for either the Transaction Screen (ASTM E-1528-00) or the Phase I Site Assessment (ASTM E-1527-00). These standards outline activities to be conducted to determine if there is evidence of Recognized Environmental Conditions (RECs). RECs are defined generally as the presence or likely presence of oil or hazardous material that indicate an existing release, past release, or threat of a release – de minimus releases excepted. However, the proposed rules deliberately avoid the term REC in favor of the AAI standard that is intended to identify conditions “indicative of releases or threatened releases.” In GEC’s opinion, one of two things will happen: either ASTM will redefine REC to fall more in line with the AAI standard or lenders and other users of site assessments will be forced to decide which standard they require for their site assessments. GEC anticipates that the ASTM standard will redefine RECs, thereby obviating the need for institutions to select one standard or the other.

Another area of discussion is the qualification criteria for the Environmental Professionals (EP’s) tasked with conducting AAI. Some committee members are lobbying for Professional Engineer (PE) and Professional Geologist (PG) certification to qualify as EP certification. However, others object to this; paraphrasing one committee member, “Just because you can identify a rock in Maine does not mean you can evaluate environmental conditions.” Currently, the ASTM standards accept sufficient training and experience as qualifications for activities such as the evaluation of RECs. GEC expects that revised ASTM standards will likely include PE and PG designations as qualifications for EP certification. In GEC’s experience, most lenders expect that a Licensed Site Professional (LSP) in Massachusetts or Licensed Environmental Professional (LEP) in Connecticut will either complete the site assessment or at least review the work conducted. In addition, most lenders expect to see the letters LSP/LEP after one of the signatures on the final report. GEC has yet to be asked by lenders to provide certification that our staff includes licensed engineers or geologists as qualification for completing a site assessment (though we do have both a PE and PGs).

Together with defining EP certification standards, there are other requirements associated with meeting criteria for AAI. These requirements include a new evaluation of data gaps, explicit statements regarding report shelf life and the disclosure of relevant information by the current owner and user for environmental evaluations. Based on GEC’s review of the ASTM standard and the Proposed Final Rule, many of these differences are subtle and will not significantly alter how site assessments are conducted.

So the question is whether new AAI standards will change the way site assessments are conducted, and, as importantly, increase associated costs. In GEC’s opinion, the level of effort to complete a site assessment in accordance with the proposed AAI criteria is only marginally greater than that required for the current ASTM Phase I standard. GEC anticipates that ASTM will modify the Phase I Site Assessment standard slightly so that it comports with the AAI criteria, enabling lenders and users who have become comfortable with the current definition of RECs to comply with both standards at once.

At this time, what happens to the ASTM Transaction Screen (ASTM E-1528-00) is unclear. Traditionally the Transaction Screen has been used to identify RECs at relatively low risk properties such as retail space or multifamily residential properties. However, the level of effort for the ASTM Transaction Screen is significantly less than that necessary for AAI. If lenders seek to demonstrate AAI, the Transaction Screen will no longer be suitable. Users will be faced with having to determine whether a particular site rises to the level of a Phase I or whether a Transaction Screen – which may provide no liability relief – is suitable.

Final rule revisions are still in the works. Similarly, the Phase I ASTM standard will be revised as well. In the mean time lenders, institutions, property owners and other users of site assessment will need to evaluate whether AAI is right for them.

For more information regarding the proposed AAI changes, ASTM site assessments, or GEC’s professional abilities, please contact Samuel Butcher, LSP/LEP/PG ,GEC’s Vice President of Operations.

To set up a site assessment with GEC, please contact Carla Wesley , GEC’s Site Assessment Manager.

For a summary of GEC’s site assessment qualifications, visit http://www.goldmanenvironmental.com/site.html#site;

for more detailed qualification info, visit http://www.goldmanenvironmental.com/quals/QualsSiteAssessments.pdf (you must have Adobe Reader to view pdf files to see this latter page).

[(February 2004]