The DEP convened a stakeholders group, again, to evaluate the possibility of allowing a de minimus concentration exemption that would apply when determining whether the facility stores threshold quantities of hazardous substances that would make that facility a “major facility.” This exemption would be beneficial because only “major facilities” must bear the cost and expense of preparing, updating, and complying with Discharge Prevention, Containment and Countermeasure Plans/Discharge Cleanup and Removal Plans (DPCC/DCR Plans). Currently, if there is any concentration of a hazardous substance in a stored mixture, the entire capacity of the container holding the mixture must be aggregated to determine if a facility is a “major facility”. Thus, a 1 percent concentration of hazardous waste in a 10,000-gallon tank requires that the entire contents of the tank be considered hazardous.
The DEP is considering establishing an exemption that would require the Department to categorize its list of hazardous substances and assign a de minimus exemption for each category. The exemption may exclude mixtures where the range of the hazardous substance is only <0.1 to 1 percent of the mixture, depending on the category. This concept is being reviewed by DEP management and the Attorney General’s office to determine if discussions should continue on this basis.