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GEC Newsletter—Spring 2005


In this Issue...

Homeowner Heating Oil Spills

GEC has been contacted by two homeowners in the past few weeks to address fuel oil releases in their basements. These releases remind us that the storage of fuel oil is not without risk and releases can cause tremendous environmental and health damage as well as financial hardship. The Licensed Site Professionals Association (LSPA) estimates that 350 to 400 oil releases occur in homes every year. The costs of cleanup depend upon the extent of the release, but typically exceed $20,000 and may go significantly higher.

As a preventative measure, GEC recommends regular inspection and maintenance of the fuel oil tank and lines. Many releases are caused by deterioration of feed lines, inoperable vent lines causing tanks to burst, and corrosion of fittings. GEC also recommends contacting your fuel oil distributor or service company to determine the feasibility of installing secondary containment and replacing underground lines with aboveground contained lines. Finally, GEC recommends that if you have converted from fuel to gas that you remove the unused storage tank, all associated piping and any residual fuel oil.

GEC also recommends that if a release occurs that you contact you insurance company as well as an attorney specializing in this sort of problem. It is our experience that many homeowner's insurance policies will deny coverage until it is demonstrated that a third party has been impacted. As such, the homeowner might be tempted to delay response actions until contamination has migrated away from the source. Sometimes legal counsel can assist in securing insurance coverage for immediate remedial work prior to fuel oil migration.

Changes are in the works however. In March 2005, state legislation was proposed that would help provide funding and insurance for residential fuel oil releases. The legislature is currently deliberating this bill.

EPA Targets New England Hospitals: Voluntary Audit Program

The EPA, Region I, introduced a voluntary audit program in 2004, targeting environmental compliance at New England Hospitals. The program, modeled after a similar and successful program implemented previously in Region II (NY/NJ), followed findings that compliance at healthcare facilities was slipping. More and more hospitals in New England are choosing to volunteer for the program, perform facility audits and self-disclose. Hospitals who voluntarily decide to participate in the program, agree to complete audits of their facilities, self-disclose compliance-related violations to the EPA, and then implement corrective actions within 60 days to achieve full compliance. In exchange, the EPA has been showing signs of leniency toward these facilities when it comes to writing violations and imposing financial penalties, provided the company completes corrective actions and fully discloses their audit findings. Violations that are deemed serious threats must be corrected immediately, and the self-audit program does not cover criminal or violations that harm public health or the environment.

This approach has been used with success for other compliance programs in the past. The EPA's approach leads companies toward resources, answers and compliance, while ensuring that the corrective actions, workload and buy-in remain with companies that volunteer to participate, thus ensuring improved compliance in the future.

Mercury has long been one targeted chemical commonly found in many hospitals. It appears in reagents, thermometers and various other instruments and devices, and unfortunately also shows up in the hospitals' wastewater and hazardous waste streams. The EPA realized that the quality and longevity of results were significantly improved by partnering with cooperating participants, using a reward system, rather than the traditional corporal punishment approach. This partnering approach has led to better buy-in of compliance objectives, improved long-term compliance, greener hospitals and lower overall enforcement costs. It is a win-win situation.

Other hospitals' findings have included violations of the Resource Conservation and Recovery Act and the Clean Water Act, namely hazardous waste management practices and wastewater discharges.

Hospitals who are considering entering into the partnership arrangement can get more information on the program and EPA's audit policy at: http://www.epa.gov/NE/healthcare/. More information on environmental compliance in the healthcare industry can be found at: http://www.epa.gov/ne/healthcare.

DEP Updates Wetlands Regulations

The Massachusetts Department of Environmental Protection (MADEP) recently revised the Massachusetts Wetlands Regulations (310 CMR 10.00) to simplify the permitting of projects located no closer than 50 feet from a wetland resource, Simplified Review Projects. The stated reason for this revision is to encourage development further from resource areas and to reduce MADEPs' permitting workload in order to enable MADEP to focus more effort on compliance and enforcement.

Simplified Review Projects apply only to inland resources. It cannot be conducted in areas with slopes of 15% or more and cannot result in impermeable surface on more than 40% of the outer 50 feet of the buffer zone.

Simplified Review Project must meet all of the following six (6) eligibility requirements:

With the exception of approving the resource boundaries, the applicant self-certifies that the project meets all requirement for a Simplified Review Project. No plans are required if the stormwater policy is not triggered, but if triggered, plans need only demonstrate compliance with the Stormwater Policy and show slopes, proposed and existing impervious surfaces and erosion controls. When the local Conservation Commission approves the ANRAD and agrees that the project meets the six eligibility requirements, it issues an Order of Resource Area Delineation (ORAD), which still requires recording at a registry of deeds. An approved Simplified Review Project prevents any work within the inner 50 feet of the buffer zone for the life of the ORAD, 3 years.

With the exception of the resource delineation, there is no appeal process with Simplified Review Projects, but pre-construction notification to the local commission is required.

GEC believes that the revisions will meet the goal of reducing MADEP oversight for these small projects, but applicants are reminded that local bylaws and regulations must also be addressed in the process.

Other regulatory changes include doubling of filing fees, determination of coastal river mouth locations by DEP issued maps and tightening of standards for adjudicatory appeals.

Regulatory Reminders:

[March 2005]