EPA Brings Enforcement Actions Against Five New England Marina and Boatyard Facilities

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1 EPA Brings Enforcement Actions Against Five New England Marina and Boatyard Facilities (Boston, Mass. - July 2006) - EPA is announcing five recent enforcement actions against marina and boatyard facilities in New England for environmental violations. The actions include the filing of a recent administrative complaint against a RI marina and boatyard and four settlements with facilities in Rhode Island and Connecticut. The actions come after EPA New England promoted a five-year initiative that focused on assistance to the marina sector on compliance and pollution prevention techniques. "For years EPA New England has recognized that the boatyard and marina sectors play an important role in maintaining the health of our coastal waters and beaches, so we went out and worked with many in the marina industry - teaching best management practices and proper pollution prevention techniques," stated Robert W. Varney, EPA New England's regional administrator. "It is now time to check in and see how this sector is doing - and when we did, we found that some facilities are still falling short, despite our targeted compliance assistance efforts, and EPA's commitment to continue this work." The recent enforcement actions involve the following: * EPA filed an Administrative complaint seeking penalties against Conanicut Marine Services (CMS), which operates five marine-related facilities in Jamestown, RI. CMS facilities include a marina, boat repair and maintenance yards, and a paint and glass shop. EPA based its claims on information that it found during three inspections over three years, where the Agency found that the facility: failed to make adequate hazardous waste determinations and properly maintain and operate one of its facilities in a way that minimizes the possibility of a release of hazardous wastes; failed to have an adequate hazardous waste training program; transported hazardous waste without a permit; and discharged storm water without a permit. EPA samples around the paint and glass shop also showed elevated levels of barium, chromium and cadmium as well as hazardous levels of lead. The Complaint did not specify a penalty amount, but cited EPA's authority to penalize CMS up to the statutory maximum allowed under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) (up to $32,500 per day for each RCRA violation and a maximum penalty of $157,500 for the CWA violations). *New England Boatworks, Inc., a Portsmouth R.I. marina and boatyard has agreed to pay a $52,300 fine to settle EPA claims that it violated regulations governing the storage and handling of hazardous materials, storm water discharges and oil pollution prevention requirements. The violations were discovered during two inspections in 2003, when EPA inspectors found that the facility violated hazardous waste disposal rules when they failed to identify some containers of waste as hazardous. Further, soil samples taken by EPA at the facility revealed a release of high concentrations of lead. The case also involved Clean Water Act (CWA) violations for the facility's failure to develop and implement a Stormwater Pollution Prevention Plan and a Spill Prevention Control and Countermeasure Plan (SPCC). The facility is located on Narragansett Bay and stores over 13,500 gallons of gasoline and diesel fuel in its above-ground tanks,

2 triggering requirements to maintain oil spill prevention plans. The facility's location on Narragansett Bay poses a serious threat of environmental damage to the Bay, if a spill were to occur at the facility. EPA settled three penalty actions against boat builders in New England for failing to prepare and implement required oil spill prevention plans. The settlements were reached with: Promet Marine Services in Providence, RI; Derecktor Shipyard in Bridgewater, Conn.; and Alden Yachts in Portsmouth, RI. Each facility agreed to pay a penalty of $3000 to resolve EPA's action. Under the CWA, facilities storing significant amounts of oil are required to create a SPCC plan to minimize environmental risks from oil spills from onsite tanks (due to tank failures or spills during filling). Because marina, boat and ship work facilities are generally located on waterways, the risks from oil spills are particularly high. Since it commenced its marina initiative in 2001, EPA New England has been involved in a number of strategic assistance projects for marinas. These efforts have involved: more than 30 training and demonstration workshops; over 150 marina on-site visits; establishment of a regional marina website and guidance materials on best management practices; fact sheets covering topics such as hazardous waste and storm water management; and an Environmental Management Plan Workbook to help marinas plan and track their environmental responsibilities. Many of these activities were done in partnership with state environmental agencies and state marine trades associations. EPA plans to conduct additional compliance assistance workshops for the marina and boatyard sector this year. EPA New England's marina website can found at: Managing Reprinted with permission of the author, Edward N. Sailer, CHMM, LEP With rare exception, marinas and boatyards generate hazardous waste in the normal course of their operations. Hazardous waste is generated during fueling, repair activities, fiberglass work, painting and dozens of other tasks conducted by the Marina. It is also generated, and often left behind, by boat owners who have no idea how to deal with it. Thus, most marinas and boatyards are confronted with the daunting task of managing not only their own hazardous wastes but also dealing with the wastes generated and left by their customers. So how does a marina or boat yard go about managing these wastes? The Regulations Since November 18, 1980 hazardous waste has been regulated by the federal Environmental Protection Agency (EPA) under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The ever expanding set of RCRA regulations themselves

3 can be found in the Code of Federal Regulations (CFRs) at 40 CFR 260 through 40 CFR 280. These regulations set the minimum requirements for managing hazardous waste nationwide. If you find them mind boggling, you're not alone. In and of themselves, they are some of the most arcane and convoluted regulations ever created. So much so that Forbes Magazine has quoted one federal judge as saying "The people who wrote this ought to go to jail. They ought not to be indicted, that's not enough." But wait, it gets worse! Every state has the option to write its own hazardous waste regulations, and most have. While state regulations must be as stringent as, and not inconsistent with, the RCRA regulations, they can be more stringent than the RCRA regulations. Regardless of what the RCRA regulations say, you must ensure that your state agrees, and is not enforcing a more stringent requirement. In many cases, states are authorized to enforce only a portion of the RCRA program. So both state and federal regulations apply. Collectively, the federal RCRA and your state regulations define what a hazardous waste is and how you must manage it from the time that it is generated until it is finally disposed of, a concept known of as "cradle to grave." Failure to comply with the regulations can result in fines of up to $50,000 per day per violation. Criminal enforcement actions are taken in more serious cases. What is a? First and foremost, for something to be a hazardous waste, it must be a "solid waste". In general it is a material that is no longer useful and is to be discarded. But don't be fooled by the word "solid." A "solid waste" can be a solid, a liquid or a contained gas. (Wonder why judges get annoyed?) Solid waste includes your trash and any other material that you dispose of. It does not include virgin products (unless you decide to dispose of them) or materials that you legitimately use. "They are some of the most arcane and convoluted regulations ever created by a government agency." Once you have identified a "solid waste" you must determine and document whether it is a hazardous waste either by testing it or by using your knowledge of what is in the waste, if you know. There are two ways that a solid waste is determined to be a hazardous waste: It is a waste that is on a list of hazardous wastes - a "listed hazardous waste", and/or It exhibits one of four characteristics of a hazardous waste (Ignitibility, corrosivity, reactivity or toxicity) a "characteristic hazardous waste" Wastes found in marinas and boat yards that are typically hazardous wastes include waste paints and paint thinners, waste acetone and un-reacted fiberglass resins, degreasing and cleaning fluids (parts washer fluid, carburetor cleaners, brake cleaners), lead-acid batteries and unwanted flares. Other wastes that may be hazardous wastes include, unwanted or stale gasoline, bottom paint sanding dust, rags

4 that are used with certain solvents, sandblasting grit, caustic paint strippers and partially used aerosol cans. Used oil that has not been mixed with other wastes is not a hazardous waste under the federal RCRA regulations if it is recycled. Most states also regulate it as non hazardous. However, if it is mixed with other wastes (particularly solvents) it can become a listed hazardous waste. Waste oil recyclers routinely test for these solvents and will reject your oil or charge you to handle it as a hazardous waste if fails the test. Similarly, unwanted or stale gasoline that is sent for use as a fuel or blended as a fuel by your waste hauler is not a hazardous waste under the federal RCRA regulations because it is being used for its originally intended use as a fuel. However, some states have a different opinion and may regulate it as a hazardous waste. Check with your state environmental agency. How Must I Manage My? Once you know what wastes are hazardous, the next step is to determine how to manage and dispose of them. To do this you need to know how much hazardous waste you generate in a month to determine which type of generator you are. There are three categories of hazardous waste generator: Conditionally Exempt Small Quantity Generators (CESQG): facilities generating less than 220 pounds (about 26 gallons) per month and accumulating no more than 2,200 pounds of hazardous waste on-site at anyone time and that generate less than 2.2 pounds per month of acutely hazardous waste. * Small Quantity Generators (SQG): facilities generating between 220 to 2,200 pounds (about 26 to 260 gallons) per month and accumulating no more than 2,200 pounds on-site of hazardous waste at any one time and that generate less than 2.2 pounds per month of acutely hazardous waste. * Large Quantity Generators (LQG): facilities generating more than 2,200 pounds per month or accumulating more than 2,200 pounds on-site at anyone time of hazardous waste, or that generate more than 2.2 pounds per month of acutely hazardous waste. * * Acutely hazardous wastes are a subset of hazardous wastes that are particularly hazardous, and are therefore regulated in much smaller amounts than regular hazardous wastes. Typically, the wastes generated by marinas will not fall into this category, although certain wastes may (for example, certain pesticides which are "P" listed wastes). Depending on which category your facility falls into, you can determine what requirements you must follow to comply with the regulations. The requirements for CESQGs and SQGs are far less onerous than those for LQGs. In our experience, most marinas and boatyards are either CESQGs or SQGs. A matrix of the federal RCRA requirements for each category is shown below. But remember that your state may

5 have different requirements. How Do I Comply With All of This? Most importantly, you need to monitor and control each waste stream that your facility generates. For example you need to ensure that all of your waste paints and thinners are properly collected, classified and disposed and not intermixed with your used oil. You also need to make sure that your facilities hazardous waste containers are controlled so that you know what is in each container. This is particularly important at a marina where customers may have access to your waste oil tank or other waste management containers. One mistake by an unwitting customer or an uneducated employee can leave you with a major and very expensive headache. What About the Waste that My Customers Generate? Almost unique to marinas is the problem of assisting boat owners with the disposal of their wastes. These wastes typically include used oil, waste paint and thinners, bottom sanding dust and sometimes used solvents. Many marinas accept these wastes as a customer service because the boat owner really doesn't want to put it is his or her luxury car and take it elsewhere. While it is a welcomed service, it can create real problems for the marina. Should you choose to provide this type of service, be very careful to know exactly what wastes your customers are generating so that you can properly manage them. Getting Help EPA and many states are offering courses in RCRA compliance to small businesses and some marine trades associations are offering courses specifically tailored to and marinas and boat yards. These courses are your opportunity to identify potential problems in your hazardous waste management program and address them prior to being faced with a formal inspection and the possibility of fines. Environmental consultants are also available to help you identify short comings in your program and help you develop appropriate solutions.

6 Overview of Federal Based on Generator Capacity Generation Rate (per calendar month) Max Amount of On Site Maximum Storage Time Waste Determination Required? Generator EPA ID Number Required? Manifest Required For Shipment Offsite? Permitted Transporter Required? Allowed Disposal Facilities Storage Emergency Procedures/Plans Inspection Personnel Training Recordkeeping Large Quantity Generators [LQG] More than 2,200 # of OR more than 2.2 # of Acute Small Quantity Generators [SQG] More than 220 # but less than 2,200 # of AND less than 2.2 # of Acute Hazardous Waste None 2,200 # 2,200 # 90 Days 180 Days No Limit Yes Yes Yes Yes Yes No Yes Yes No Yes Yes Yes Permitted treatment, storage or disposal facilities Permitted Hazardous Waste treatment, storage or disposal facilities Yes. See Regulation Yes. See Regulation No Full written contingency plan Written inspection schedule and log Written training plan and formal classroom training Must retain manifests, biennial reports, waste determination (with test results), inspection logs, and records of incidents requiring implementation of the contingency plan. Emergency Coordinator and post information near on site telephone Written inspection schedule and log Employees must be familiar with waste handling and emergency procedures Must retian manifests, wate determinations (with rest results), and inspection logs. Biennial Report? Yes No No Conditionally Exempt Small Quantity Generators [CE DQG] Less than 220 # of AND Less than 2.2 # of Acute Permitted Hazardous Waste treatment, storage or disposal facilities; authorized household Hazardous Waste Collection Facilities None None None Records of waste determinations (with test results).

7 The above article was written by Edward N. Sailer, CHMM, LEP of Sailer Environmental., Inc., for Marina Business Today magazine in Edward Ted Sailer is the current President of the Connecticut Marine Trades Association.