Mercury Work Group
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APPENDIX G

MASSACHUSETTS WATER RESOURCES AUTHORITY
Charlestown Navy Yard
100 First Avenue
Boston, Massachusetts 02129

TO: Sewer Users with an MWRA Sewer Use Discharge Permit

FROM: Kevin McManus, Director, Toxic Reduction and Control Department

DATE: March 6, 1997

RE: MWRA Enforcement of Mercury Discharge Prohibition (the safe harbor from escalated enforcement for mercury violations)

This memorandum sets forth how the Massachusetts Water Resources Authority (MWRA) will exercise its enforcement discretion regarding mercury discharges, effective July 1, 1997.

The MWRA will create an enforcement "safe harbor" in which it will not take escalated enforcement action, such as the imposition of financial penalties, for sewer users with mercury discharge violations who take the steps required by this memorandum to reduce and eliminate their discharges of mercury.

The enforcement safe harbor will be as follows:

! Mercury prohibition. Mercury is prohibited from being discharged to the MWRA sewer system (360 C.M.R. ' 10.024(1)). To take into account the method detection limit for mercury and test method variability, the MWRA uses an enforceable limit of 0.001 mg/l for mercury. Discharges at or below 0.001 mg/l for mercury are not considered violations of the mercury prohibition.

! Enforcement for mercury violations. The MWRA may issue a Notice of Violation for a first time mercury discharge above 0.001 mg/l and an escalated enforcement document, such as a Notice of Noncompliance (NON), for repeat or serious mercury discharge violations.

! Escalated enforcement safe harbor. For sewer users who are actively attempting to correct their mercury discharge problems as required by this memorandum, the MWRA will not escalate enforcement beyond the NON and enforcement order level for mercury violations and will grant extensions of mercury compliance dates in NONs, other enforcement documents, and settlement agreements for sewer users in Groups 1 and 2, as follows:

! Group 1 defined. Group 1 consists of sewer users with mercury discharge results consistently at 0.004 mg/l or less at all their sample locations, except for a rare excursion above 0.004 mg/l.

! Group 2 defined. Group 2 consists of sewer users with mercury discharge results above 0.004 mg/l at a sample location, unless those results are a rare excursion.

! Initial placement in a group. In July 1997, the MWRA will inform each mercury discharger of which group it is in, based on sample data from July 1996 through June 1997, on a sample location by sample location basis.

A sewer user that has its first mercury violation after January 1, 1997, at a sample location will be placed in Group 1 for up to six months to give it an opportunity to reduce and eliminate its mercury discharge without pretreatment. If the first three months of data show that the sewer user is making progress in reducing its discharge of mercury but still has discharge results above 0.004 mg/l, the MWRA may elect to keep the discharger in Group 1 for an additional three months.

! More than one sample location. Group placement is on a sample location basis. A sewer user with more than one sample location may be in Group 1 for some of its sample locations and Group 2 for other sample locations, based on the discharge history of each sample location.

! Change in group placement. A sewer user placed in Group 1 that then discharges mercury above 0.004 mg/l at a sample location, except for a rare excursion, will be moved to Group 2 for that sample location.

! Rare excursion. For purposes of this memorandum, a rare excursion is one mercury result above 0.004 mg/l in a six month period. Three mercury results above 0.004 mg/l in a six month period is not a rare excursion. If two mercury results in a six month period are above 0.004 mg/l, the MWRA will review the discharger's mercury results over a longer period of time and the magnitude of the results above 0.004 mg/l. It is not a rare excursion if there is an emerging pattern of more than one mercury result above 0.004 mg/l in successive six month periods, or there are two results above 0.006 mg/l in a six month period.

! Mercury compliance. Each sewer user, regardless of group, will be required to work actively toward having no greater than 0.001 mg/l of mercury in its discharges.

! Specific requirements for Group 1 sewer users. Each Group 1 sewer user must have a written agreement with the MWRA or be under an MWRA enforcement order that includes: a description of the sewer user's approach to correct its mercury discharge problems; a timetable for actions to be taken; the requirement to implement and operate mercury source control and reduction strategies (including product substitution and wastestream segregation) and facility maintenance plans; and the requirement to evaluate the feasibility of mercury treatment options. A sewer user in Group 1 may install mercury pretreatment if it chooses.

! Specific requirements for Group 2 sewer users. Each Group 2 sewer user must have a written agreement with the MWRA or be under an MWRA enforcement order that, in addition to the requirements of Group 1, includes the requirement to evaluate, design, install, and operate a full-scale end-of-pipe pretreatment system for mercury within six months of notice from the MWRA that it is in Group 2 unless the MWRA and the sewer user agree upon a different schedule or a modification of the schedule. The MWRA will provide an extension of the six month time limit to evaluate and install pretreatment if the sewer user's initial evaluation of a promising pretreatment technology shows that the technology would have little mercury removal efficiency. If a sewer user has achieved a consistent mercury discharge of 0.004 mg/l. or less, except for a rare excursion, when it has completed pilot testing, it will not be required to install pretreatment unless it again exceeds 0.004 mg/l. for mercury, taking into account the allowance for a rare excursion as defined in this memorandum.

! Mercury pretreatment. To implement the pretreatment requirement, a sewer user shall, at a minimum, perform a wastestream characterization study, do side-stream and full-scale pilot testing, and modify and upgrade system components to achieve optimum performance. If the results of pilot testing show that the system can most likely reduce mercury concentrations to 0.001 mg/l. or less, the sewer user shall install and run the system on a full-scale basis, unless it has achieved compliance without use of the system. If the results of pilot testing show that the system can reduce mercury concentrations, but most likely not to 0.001 mg/l. or less, the sewer user will be required to install the system, operate the system, and then refine the system to achieve 0.001 mg/l. or less in its discharge, unless at the time of installation the sewer user demonstrates that it can achieve equal or more effective mercury removal results with another pretreatment system, which it then must implement and refine.

! Interim mercury limit. The MWRA cannot provide a system-wide or industry type interim limit for mercury as part of an enforcement safe harbor. The mercury discharge prohibition is a regulation that may be changed only through the local limit review, MEPA, and regulations revision processes. The MWRA anticipates undertaking a review of its local limits within the next eighteen months. A facility that enters into a settlement agreement with the MWRA in which it agrees to install an end-of-pipe pretreatment system will be given an interim mercury discharge limit for nine months at the sample location where pretreatment will be installed. The MWRA will base the interim limit on an average concentration of the sampling data at the location over the previous twelve months (or longer if there are fewer than twelve sample results), removing high results that appear to be atypical for the location from the calculation of the average. If the sewer user does not install pretreatment, the interim limit will be considered forfeited by the sewer user and never in effect.

! Sampling requirements. All mercury dischargers will be required take at least one representative sample per month at each designated sample location where mercury may be present, have the sample analyzed for mercury, and report the result to the MWRA each month. The MWRA may require more frequent sampling as it deems appropriate. As required by EPA, 40 C.F.R. 403.8(f)(2)(vii), the MWRA will use all sampling data from representative sample locations to determine compliance status and whether a sewer user is in Significant Noncompliance.

The results of sampling for mercury at permit sampling locations, done by a Group 1 or 2 sewer user or the MWRA during the duration of the safe harbor, will not be used by the MWRA to assess monetary penalties, unless the violations are not within the safe harbor because they resulted from intentional or grossly negligent actions or were in contravention of an MWRA agreement or enforcement order. See the section below on mercury violations not within the safe harbor.

! Compliance reports. Sewer users in Group 1 will be required to submit quarterly compliance reports to the MWRA, discussing the actions they took each quarter to reduce and eliminate the mercury in their discharges. Sewer users in Group 2 will be required to submit monthly compliance reports to the MWRA, showing their progress toward implementation of pretreatment and discussing the other actions they took to reduce and eliminate mercury in their discharges.

! Removal from the safe harbor. A sewer user who fails to do the required work, take the required samples, or submit the required reports, will be considered outside the safe harbor and will be subject to further enforcement, including the imposition of monetary penalties for noncompliance with the mercury prohibition.

! Other violations. If a sewer user has compliance issues in addition to mercury, the MWRA will treat those issues separately and require the sewer user to resolve those issues as soon as possible, given the nature of the problems.

! Other sampling and reporting. In addition to the sampling and reporting required under this mercury enforcement discretion memorandum, sewer users must sample and report according to their MWRA permits, orders, and agreements, subject to the sewer user's right to appeal a permit or order and the MWRA's right to amend the requirements. All results of samples taken at representative sample locations following EPA protocol are required to be sent to the MWRA, even if the sample results are in addition to those required by a permit or order. Results of samples taken at non-representative sample locations need not be submitted to the MWRA.

! Mercury violations not within the safe harbor. The MWRA recognizes that time, resources, and strong commitment are necessary to attain mercury compliance and that an escalated enforcement safe harbor is appropriate for sewer users who are doing the necessary work with the necessary commitment to achieve mercury compliance. There are, however, mercury violations that are not within the safe harbor because they result from intentional or grossly negligent actions that could have been prevented or were done in contravention of an MWRA enforcement order, agreement, or regulations. Those violations include new processes or discharges not covered by an existing permit, intentional bypasses of pretreatment systems, mercury dumping, and dilution to meet the mercury limit. Violations of 360 C.M.R. ' 10.021 are also not covered by the safe harbor. The MWRA may take enforcement action, including the imposition of monetary penalties, for violations not within the safe harbor.

This memorandum is not intended to create any legal rights for any sewer user. The MWRA may change or end the safe harbor if it experiences an increase in the amount or concentration of mercury in the influent to, or effluent from, its treatment plants or in the fertilizer pellets it produces from its treatment plant residuals. The MWRA may change or end the mercury safe harbor as other circumstances require, in the sole discretion of the MWRA. The MWRA does not anticipate extending the safe harbor or any specific provisions of this memorandum beyond its next local limits study, when it will review whether it should change its mercury discharge prohibition. TO:

TO: Sewer Users with an MWRA Sewer Use Discharge Permit

FROM: Kevin McManus, Director, Toxic Reduction and Control Department

DATE: March 6, 1997

RE: MWRA Enforcement of Mercury Discharge Prohibition (the safe harbor from escalated enforcement for mercury violations)

This memorandum sets forth how the Massachusetts Water Resources Authority (MWRA) will exercise its enforcement discretion regarding mercury discharges, effective July 1, 1997.

The MWRA will create an enforcement "safe harbor" in which it will not take escalated enforcement action, such as the imposition of financial penalties, for sewer users with mercury discharge violations who take the steps required by this memorandum to reduce and eliminate their discharges of mercury.

The enforcement safe harbor will be as follows:

! Mercury prohibition. Mercury is prohibited from being discharged to the MWRA sewer system (360 C.M.R. ' 10.024(1)). To take into account the method detection limit for mercury and test method variability, the MWRA uses an enforceable limit of 0.001 mg/l for mercury. Discharges at or below 0.001 mg/l for mercury are not considered violations of the mercury prohibition.

! Enforcement for mercury violations. The MWRA may issue a Notice of Violation for a first time mercury discharge above 0.001 mg/l and an escalated enforcement document, such as a Notice of Noncompliance (NON), for repeat or serious mercury discharge violations.

! Escalated enforcement safe harbor. For sewer users who are actively attempting to correct their mercury discharge problems as required by this memorandum, the MWRA will not escalate enforcement beyond the NON and enforcement order level for mercury violations and will grant extensions of mercury compliance dates in NONs, other enforcement documents, and settlement agreements for sewer users in Groups 1 and 2, as follows:

! Group 1 defined. Group 1 consists of sewer users with mercury discharge results consistently at 0.004 mg/l or less at all their sample locations, except for a rare excursion above 0.004 mg/l.

! Group 2 defined. Group 2 consists of sewer users with mercury discharge results above 0.004 mg/l at a sample location, unless those results are a rare excursion.

! Initial placement in a group. In July 1997, the MWRA will inform each mercury discharger of which group it is in, based on sample data from July 1996 through June 1997, on a sample location by sample location basis.

A sewer user that has its first mercury violation after January 1, 1997, at a sample location will be placed in Group 1 for up to six months to give it an opportunity to reduce and eliminate its mercury discharge without pretreatment. If the first three months of data show that the sewer user is making progress in reducing its discharge of mercury but still has discharge results above 0.004 mg/l, the MWRA may elect to keep the discharger in Group 1 for an additional three months.

! More than one sample location. Group placement is on a sample location basis. A sewer user with more than one sample location may be in Group 1 for some of its sample locations and Group 2 for other sample locations, based on the discharge history of each sample location.

! Change in group placement. A sewer user placed in Group 1 that then discharges mercury above 0.004 mg/l at a sample location, except for a rare excursion, will be moved to Group 2 for that sample location.

! Rare excursion. For purposes of this memorandum, a rare excursion is one mercury result above 0.004 mg/l in a six month period. Three mercury results above 0.004 mg/l in a six month period is not a rare excursion. If two mercury results in a six month period are above 0.004 mg/l, the MWRA will review the discharger's mercury results over a longer period of time and the magnitude of the results above 0.004 mg/l. It is not a rare excursion if there is an emerging pattern of more than one mercury result above 0.004 mg/l in successive six month periods, or there are two results above 0.006 mg/l in a six month period.

! Mercury compliance. Each sewer user, regardless of group, will be required to work actively toward having no greater than 0.001 mg/l of mercury in its discharges.

! Specific requirements for Group 1 sewer users. Each Group 1 sewer user must have a written agreement with the MWRA or be under an MWRA enforcement order that includes: a description of the sewer user's approach to correct its mercury discharge problems; a timetable for actions to be taken; the requirement to implement and operate mercury source control and reduction strategies (including product substitution and wastestream segregation) and facility maintenance plans; and the requirement to evaluate the feasibility of mercury treatment options. A sewer user in Group 1 may install mercury pretreatment if it chooses.

! Specific requirements for Group 2 sewer users. Each Group 2 sewer user must have a written agreement with the MWRA or be under an MWRA enforcement order that, in addition to the requirements of Group 1, includes the requirement to evaluate, design, install, and operate a full-scale end-of-pipe pretreatment system for mercury within six months of notice from the MWRA that it is in Group 2 unless the MWRA and the sewer user agree upon a different schedule or a modification of the schedule. The MWRA will provide an extension of the six month time limit to evaluate and install pretreatment if the sewer user's initial evaluation of a promising pretreatment technology shows that the technology would have little mercury removal efficiency. If a sewer user has achieved a consistent mercury discharge of 0.004 mg/l. or less, except for a rare excursion, when it has completed pilot testing, it will not be required to install pretreatment unless it again exceeds 0.004 mg/l. for mercury, taking into account the allowance for a rare excursion as defined in this memorandum.

! Mercury pretreatment. To implement the pretreatment requirement, a sewer user shall, at a minimum, perform a wastestream characterization study, do side-stream and full-scale pilot testing, and modify and upgrade system components to achieve optimum performance. If the results of pilot testing show that the system can most likely reduce mercury concentrations to 0.001 mg/l. or less, the sewer user shall install and run the system on a full-scale basis, unless it has achieved compliance without use of the system. If the results of pilot testing show that the system can reduce mercury concentrations, but most likely not to 0.001 mg/l. or less, the sewer user will be required to install the system, operate the system, and then refine the system to achieve 0.001 mg/l. or less in its discharge, unless at the time of installation the sewer user demonstrates that it can achieve equal or more effective mercury removal results with another pretreatment system, which it then must implement and refine.

! Interim mercury limit. The MWRA cannot provide a system-wide or industry type interim limit for mercury as part of an enforcement safe harbor. The mercury discharge prohibition is a regulation that may be changed only through the local limit review, MEPA, and regulations revision processes. The MWRA anticipates undertaking a review of its local limits within the next eighteen months. A facility that enters into a settlement agreement with the MWRA in which it agrees to install an end-of-pipe pretreatment system will be given an interim mercury discharge limit for nine months at the sample location where pretreatment will be installed. The MWRA will base the interim limit on an average concentration of the sampling data at the location over the previous twelve months (or longer if there are fewer than twelve sample results), removing high results that appear to be atypical for the location from the calculation of the average. If the sewer user does not install pretreatment, the interim limit will be considered forfeited by the sewer user and never in effect.

! Sampling requirements. All mercury dischargers will be required take at least one representative sample per month at each designated sample location where mercury may be present, have the sample analyzed for mercury, and report the result to the MWRA each month. The MWRA may require more frequent sampling as it deems appropriate. As required by EPA, 40 C.F.R. 403.8(f)(2)(vii), the MWRA will use all sampling data from representative sample locations to determine compliance status and whether a sewer user is in Significant Noncompliance.

The results of sampling for mercury at permit sampling locations, done by a Group 1 or 2 sewer user or the MWRA during the duration of the safe harbor, will not be used by the MWRA to assess monetary penalties, unless the violations are not within the safe harbor because they resulted from intentional or grossly negligent actions or were in contravention of an MWRA agreement or enforcement order. See the section below on mercury violations not within the safe harbor.

! Compliance reports. Sewer users in Group 1 will be required to submit quarterly compliance reports to the MWRA, discussing the actions they took each quarter to reduce and eliminate the mercury in their discharges. Sewer users in Group 2 will be required to submit monthly compliance reports to the MWRA, showing their progress toward implementation of pretreatment and discussing the other actions they took to reduce and eliminate mercury in their discharges.

! Removal from the safe harbor. A sewer user who fails to do the required work, take the required samples, or submit the required reports, will be considered outside the safe harbor and will be subject to further enforcement, including the imposition of monetary penalties for noncompliance with the mercury prohibition.

! Other violations. If a sewer user has compliance issues in addition to mercury, the MWRA will treat those issues separately and require the sewer user to resolve those issues as soon as possible, given the nature of the problems.

! Other sampling and reporting. In addition to the sampling and reporting required under this mercury enforcement discretion memorandum, sewer users must sample and report according to their MWRA permits, orders, and agreements, subject to the sewer user's right to appeal a permit or order and the MWRA's right to amend the requirements. All results of samples taken at representative sample locations following EPA protocol are required to be sent to the MWRA, even if the sample results are in addition to those required by a permit or order. Results of samples taken at non-representative sample locations need not be submitted to the MWRA.

! Mercury violations not within the safe harbor. The MWRA recognizes that time, resources, and strong commitment are necessary to attain mercury compliance and that an escalated enforcement safe harbor is appropriate for sewer users who are doing the necessary work with the necessary commitment to achieve mercury compliance. There are, however, mercury violations that are not within the safe harbor because they result from intentional or grossly negligent actions that could have been prevented or were done in contravention of an MWRA enforcement order, agreement, or regulations. Those violations include new processes or discharges not covered by an existing permit, intentional bypasses of pretreatment systems, mercury dumping, and dilution to meet the mercury limit. Violations of 360 C.M.R. ' 10.021 are also not covered by the safe harbor. The MWRA may take enforcement action, including the imposition of monetary penalties, for violations not within the safe harbor.

This memorandum is not intended to create any legal rights for any sewer user. The MWRA may change or end the safe harbor if it experiences an increase in the amount or concentration of mercury in the influent to, or effluent from, its treatment plants or in the fertilizer pellets it produces from its treatment plant residuals. The MWRA may change or end the mercury safe harbor as other circumstances require, in the sole discretion of the MWRA. The MWRA does not anticipate extending the safe harbor or any specific provisions of this memorandum beyond its next local limits study, when it will review whether it should change its mercury discharge prohibition.