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EPA Extends Comment Period for Proposed RCRA Rules

EPA announced on October 22 an extensions of the comment period for both the Management Standards for Hazardous Waste Pharmaceuticals Proposed Rule and the Hazardous Waste Generators Improvements Proposed Rule until December 24, 2015. These proposed rules were published on September 25, 2015.

The extension notices can be found here and  here.

 

 

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Next Generation Compliance Initiative on Display in New Rule

While USEPA’s Next Generation Compliance initiative is not new, the regulated community is beginning to see these ideas incorporated into new rulemaking. Next Generation Compliance consists of five interconnected components: regulations and permits that are easier to implement, advanced emissions/pollutant detection technology, electronic reporting, public transparency, and innovative enforcement approaches.

Next Generation Compliance Components

Next Generation Compliance Components

According to USEPA, Next Generation Compliance consists of five interconnected components, each designed to improve the effectiveness of its compliance program:

  • Design regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes.
  • Use and promote advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see pollutant discharges, environmental conditions, and noncompliance.
  • Shift toward electronic reporting to help make environmental reporting more accurate, complete, and efficient while helping EPA and co-regulators better manage information, improve effectiveness and transparency.
  • Expand transparency by making information more accessible to the public.
  • Develop and use innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance.

Jacob Hollinger with McDermott Will & Emery has written an excellent piece highlighting the incorporation of the next generation compliance strategy into USEPA’s new refinery hazardous emissions rule at http://bit.ly/1jEqg1s. First, the rule requires fence line monitoring of benzene concentrations and corrective action if necessary.  This is the first time USEPA has required fenceline monitoring on such a scale. Second, the rule requires electronic reporting of the fenceline monitoring data. Third, the rule does not excuse compliance during periods of equipment malfunction.

Hollinger asserts that industrial facilities should watch how the rule is implemented since the rule’s implementation will likely shed light on how well EPA’s next generation ideas function in practice.

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FLASH: EPA Inspector General Orders New Ethanol Emissions Study

On October 15, USEPA announced plans to begin preliminary research on lifecycle impacts of its renewable fuel standard. The objectives of the study are to determine whether USEPA: 1) complied with the reporting requirements of laws authorizing the Renewable Fuel Standard (RFS); and 2) updated the lifecycle analysis supporting the RFS with findings from the statutorily mandated National Academy of Sciences 2011 study on biofuels, the EPA’s 2011 Report to Congress on the Environmental Impacts of Biofuels, as well as any subsequent reports or relevant research on lifecycle impacts of biofuels.

 

The anticipated benefits of this project are to ensure public health and the environment are protected by verifying USEPA is complying with reporting requirements, and is considering statutorily mandated studies when promulgating the RFS.

For more information, visit http://1.usa.gov/1jErGJf.

 

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USEPA Updates its 1998 SEP Policy

Most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. As part of a settlement, an alleged violator may voluntarily agree to undertake an environmentally beneficial project related to the violation in exchange for mitigation of the penalty to be paid. These Supplement Environmental Projects (SEP) are intended to enhance public health and the environment and are often a mutually beneficial option for the alleged violator and the community.

EPA recently updated its SEP Policy. The 2015 Updated SEP Policy revises and supersedes the February 1991 Policy on the Use of Supplemental Environmental Projects (SEPs) in EPA Settlements, the May 1995 Interim Revised SEP Policy, and the May 1998 EPA SEP Policy.

The complete SEP Policy can be found here.

Characteristics of SEPs

Because SEPs are part of an enforcement settlement, they must meet certain legal requirements.

  • There must be a relationship between the underlying violation and the human health or environmental benefits that will result from the SEP.
  • A SEP must improve, protect, or reduce risks to public health or the environment, although in some cases a SEP may, as a secondary matter, also provide the violator with certain benefits.
  • The SEP must be undertaken in settlement of an enforcement action as a project that the violator is not otherwise legally required to perform.

SEP Guidelines

In addition, there are several guidelines that a SEP must meet.

  • A project cannot be inconsistent with any provision of the underlying statute(s).
  • A SEP must advance at least one of the objectives of the environmental statute that is the basis of the enforcement action.
  • EPA must not play any role in managing or controlling funds used to perform a SEP.
  • The type and scope of each project should be defined in the settlement document.

Categories of Acceptable SEPs

EPA has set out eight categories of projects that can be acceptable SEPs. To qualify, a SEP must fit into at least one of the following categories:

  • Public Health: SEPs may include examining residents in a community to determine if anyone has experienced any health problems because of the company’s violations.
  • Pollution Prevention: These SEPs involve changes so that the company no longer generates some form of pollution. For example, a company may make its operation more efficient so that it avoids making a hazardous waste along with its product.
  • Pollution Reduction: These SEPs reduce the amount and/or danger presented by some form of pollution, often by providing better treatment and disposal of the pollutant.
  • Environmental Restoration and Protection: These SEPs improve the condition of the land, air or water in the area damaged by the violation. For example, by purchasing land or developing conservation programs for the land, a company could protect a source of drinking water.
  • Emergency Planning and Preparedness: These projects provide assistance to a responsible state or local emergency response or planning entity to enable these organizations to fulfill their obligations under the Emergency Planning and Community Right-to-Know Act (EPCRA.) Such assistance may include the purchase of computers and/or software, communication systems, chemical emission detection and inactivation equipment, HAZMAT equipment, or training. Cash donations to local or state emergency response organizations are not acceptable SEPs.
  • Assessments and Audits: A violating company may agree to examine its operations to determine if it is causing any other pollution problems or can run its operations better to avoid violations in the future. These audits go well beyond standard business practice.
  • Environmental Compliance Promotion: These are SEPs in which an alleged a violator provides training or technical support to other members of the regulated community to achieve, or go beyond, compliance with applicable environmental requirements. For example, the violator may train other companies on how to comply with the law.
  • Other Types of Projects: Other acceptable SEPs would be those that have environment merit but do not fit within the categories listed above. These types of projects must be fully consistent with all other provisions of the SEP Policy and be approved by EPA.

The 2015 Update supersedes the 1998 Policy, and is effective immediately.

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EPA Sets Stricter Ozone Standard

USEPA set a new national ambient air quality standard for ozone on Thursday that, while significantly lower than the previous standard, is at the high end of the range discussed during the regulatory development process.

USEPA set the new limit of 70 parts per billion for ground-level ozone, down from the current level of 75 parts per billion. In a draft released in 2014, the agency proposed a standard between 65 and 70 parts per billion.

Ozone is created by emissions of nitrogen oxides and volatile organic compounds. Exposure to ground-level ozone can exacerbate respiratory problems, particularly for at-risk groups including children, older adults, and people of all ages who have lung diseases such as asthma.

USEPA projects that most U.S. counties will meet the standards by 2025 with federal and state programs now in place or underway.

In announcing the new standard, USEPA Administrator Gina McCarthy said that clinical data show that 72 parts per billion “is the lowest ozone exposure that causes adverse health effects in healthy, exercising adults.”

From there, she decided to add in a “margin of safety” to protect at-risk populations, including children, the elderly and those suffering from heart and lung diseases. Setting the level at 70 parts per billion “will essentially eliminate exposures to the levels that clinical studies clearly show are harmful,” McCarthy said.

McCarthy said the final judgment was hers, and she aimed to set a standard that was “not too high and not too low. It’s very challenging. There’s no bright line.”

Over 90% of counties with ozone monitors are meeting the current 75-parts-per-billion limit, according to an EPA spokeswoman. USEPA expects that by 2025 only 14 counties of 3,000 in the US will not meet the new standard.

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MDEQ to Hold NetDMR Workshops

MDEQ recently announced a series of instructional workshops to be held around the state to educate the regulated community on the use of NetDMR, MDEQ’s new online reporting tool for submitting Discharge Monitoring Reports (DMRs) electronically using a secure website.

According to MDEQ, the NetDMR system will reduce the paperwork burden, improve the quality of data, and improve timeliness of DMR submittals. Any Mississippi permitee with DMR submittal requirements in their NPDES, Pretreatment, or General Permit, is eligible to submit electronic DMRs.

The NetDMR classroom training sessions will provide an overview of NetDMR, including registration, data entry, and importing data. Each class will include a hands-on training exercise that will allow permittees to register and submit a DMR to the training environment. Classes are limited to 25 people, and registration is required. To register, please contact Annette Brocks at 601-961-5252 or by email at Annette_Brocks@deq.state.ms.us. In your email, please include your name, phone number, and the class you wish to attend. If more than one person is attending from a company, each person must register separately.

The classes will be held at the following locations:

Class #1 – October 7 – Hinds Community College-Raymond – CLASS IS FULL
Class #2 – October 7 – Hinds Community College-Raymond – CLASS IS FULL
Class #3 – October 12 – Hinds Community College-Raymond – CLASS IS FULL
Class #4 – October 12 – Hinds Community College-Raymond – CLASS IS FULL
Class #5 – November 3 – USM Gulf Park Campus, Long Beach – CLASS IS FULL
Class #6 – November 3 – USM Gulf Park Campus., Long Beach
Class #7 – November 4 – USM Gulf Park Campus, Long Beach – CLASS IS FULL
Class #8 – November 4 – USM Gulf Park Campus, Long Beach
Class #9 – November 16 – MSU, Starkville – CLASS IS FULL
Class #10 – November 16 – MSU, Starkville
Class #11 – November 17 – MSU, Starkville
Class #12 – November 17 – MSU, Starkville
Class #13 – December 2 – Hinds Community College-Raymond
Class #14 – December 2 – Hinds Community College-Raymond

If you can’t attend a live training session, web-based training is available at http://www.deq.state.ms.us/MDEQ.nsf/page/NetDMR_NetDMRClassroomTraining?OpenDocument

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EPA Finalizes Rule to Modernize Clean Water Act Reporting

On September 24, USEPA finalized a rule to modernize Clean Water Act reporting for municipalities, industries, and other facilities. The final rule will require regulated entities and state and federal regulators to use existing, available information technology to electronically report data required by the National Pollutant Discharge Elimination System (NPDES) program instead of filing written paper reports.

USEPA estimates that, once the rule is fully implemented, the 46 states and the Virgin Islands Territory that are authorized to administer the NPDES program will collectively save approximately $22.6 million each year as a result of switching from paper to electronic reporting. The final rule will make facility-specific information, such as inspection and enforcement history, pollutant monitoring results, and other data required by NPDES permits accessible to the public through EPA’s website.

“Electronic reporting will give the public full transparency into water pollution sources, save millions of dollars, and lead to better water quality in American communities,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “This rule will significantly reduce the burden and costs of paperwork, freeing up limited resources for states and other regulatory authorities to focus on the most serious water quality problems. After more than two years of working closely with states and a range of stakeholders, today we take a critical step to bring clean water protection into the modern age.”

The Clean Water Act requires that municipal, industrial or commercial facilities that discharge wastewater directly into waters of the United States obtain a permit. The NPDES program requires that permitted facilities monitor and report data on pollutant discharges and take other actions to ensure discharges do not affect human health or the environment. Currently, some facilities subject to these reporting requirements submit data in paper form to states and other regulatory authorities, where the information must be manually entered into data systems. Through the e-reporting rule, these facilities will electronically report data directly to the appropriate regulatory authority.

This rule making is part of USEPA’s Next Generation Compliance strategy, as well as the E-Enterprise for the Environment strategy with states and tribes, to take advantage of new tools and innovative approaches to increase compliance and reduce pollution.

USEPA expects to publish the final rule in the Federal Register in October, 2015. The final rule will be effective 60 days following this publication.

View the final rule at:
http://www2.epa.gov/compliance/final-national-pollutant-discharge-elimination-system-npdes-electronic-reporting-rule

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FLASH: DC Circuit Court Denies States’ Motion to Stay CPP Deadlines

On September 9, 2015, the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency petition filed by 15 states seeking a stay of certain deadlines in EPA’s new Clean Power Plan (CPP) Rule.

The CPP Rule establishes limits on carbon emissions from existing fossil-fuel, electric generating units under Section 111(d) of the Clean Air Act. The states’ petition sought an immediate stay of the deadlines in the CPP for states to submit compliance plans detailing how they would achieve the rule’s emission limit requirements. The states argued that they would suffer irreparable harm, including “significant unrecoverable costs and disruption to sovereign priorities,” if these deadlines were not immediately stayed.

The court concluded that the states’ petition did not satisfy “the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

Denial of the motion likely clears the path for implementation of the rule in the near term.

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5 Environmental Programs that Apply to You: EPCRA

One of the toughest tasks in a compliance audit is telling a well-intentioned client that the environmental program that he has been ignoring does, in fact, apply to his operation. In most instances, it’s not a matter of being unaware of the regulation but instead incorrectly determining that the requirement doesn’t apply. This can result from several sources of false confidence:

  • A program may not be an exact fit.

An emergency response program would seem on the surface not to apply to a facility that doesn’t house any hazardous materials or dispose of hazardous waste.

  • A program may not have been intended for them.

An oil spill prevention program would seem not to apply to a facility that does not store oil.

  • A facility may have had successful agency compliance inspections.

The inspector may have been conducting a media-specific inspection and may not have looked at issues outside that specific medium. Or, as inspectors or human, he may have just missed it—this time.

In this first article of a five part series, we will briefly touch on the requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA was passed by Congress in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. These requirements covered emergency planning and “Community Right-to-Know” reporting on hazardous and toxic chemicals.

Very few facilities have no reporting requirements under EPCRA.

Among the most common EPCRA requirements:

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EPA Moves Ahead on Power Plant Carbon Emissions

On June 25, 2013, President Obama issued a Presidential Memorandum directing the Environmental Protection Agency (EPA) to work expeditiously to complete carbon pollution standards for the power sector.

The agency is using its authority under section 111 of the Clean Air Act to issue standards, regulations or guidelines, as appropriate that address carbon pollution from new power plants and existing power plants, including modifications of power plants. The Presidential Memorandum specifically directs EPA to build on state leadership, provide flexibility and take advantage of a wide range of energy sources and technologies towards building a cleaner power sector.  For newly built power plants, the plan calls for EPA to issue a new proposal by September, 20, 2013, and to issue a final rule in a timely fashion after considering all public comments, as appropriate.  For existing plants, the plan calls for EPA to issue proposed carbon pollution standards, regulations, or guidelines, as appropriate, for modified and existing power plants by no later than June 1, 2014 and issue final standards, regulations, or guidelines, as appropriate, by no later than June 1, 2015.

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EPA Issues Revised Spill Prevention, Control, and Countermeasure (SPCC) Guidance for Regional Inspectors

In August 2013, EPA revised the SPCC Guidance for Regional Inspectors which is intended to assist regional inspectors in reviewing a facility’s implementation of the Spill Prevention, Control, and Countermeasure (SPCC) rule at 40 CFR part 112. This guidance document is also available to owners and operators of facilities that may be subject to the requirements of the SPCC rule, and the general public on how EPA intends the SPCC rule to be implemented. The document is designed to provide a consistent national policy on several SPCC-related issues. In accordance with the Oil Pollution Prevention regulation at 40 CFR part 112, the U.S. Environmental Protection Agency (EPA) requires certain facilities to prepare, amend, and implement Spill Prevention, Control, and Countermeasure (SPCC) Plans. The regulation is largely performance-based, which allows flexibility in meeting the rule requirements to prevent discharges of oil to navigable waters or adjoining shorelines. The SPCC rule was promulgated in 1973, with significant amendments published in 2002. EPA finalized additional revisions in 2006, 2008, 2009, and 2011. EPA developed this guidance to assist regional inspectors in implementing the SPCC program and in understanding its applicability, and to help clarify the role of the inspector in reviewing a facility’s implementation of performance-based flexibility provisions, such as environmental equivalence and impracticability. This document provides guidance to EPA inspectors, to owners and operators of facilities that may be subject to the requirements of the Spill Prevention, Control, and Countermeasure (SPCC) rule (40 CFR Part 112) and to the general public on how EPA intends the SPCC rule to be implemented. The guidance is designed to facilitate nationally-consistent implementation of the SPCC rule. The guidance is available at http://www.epa.gov/osweroe1/content/spcc/spcc_guidance.htm

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