News

EPA Denies Petition to Remove EGBE from TRI Chemical List

EPA has denied a petition to remove ethylene glycol monobutyl ether (EGBE) from the category Certain Glycol Ethers under the list of chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 and section 6607 of the Pollution Prevention Act (PPA) of 1990. EPA reviewed the available data EGBE and determined that EGBE does not meet the deletion criterion of EPCRA section 313(d)(3). Specifically, EPA denied the petition because EPA’s review of the petition and available information resulted in the conclusion that EGBE meets the listing criterion of EPCRA section 313(d)(2)(B) due to its potential to cause serious or irreversible chronic health effects in humans, specifically, liver toxicity and concerns for hematological effects. EPA denied the petition on September 24, 2015.

 

Section 313 of EPCRA, 42 U.S.C. 11023, requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of the PPA, 42 U.S.C. 13106. Congress established an initial list of toxic chemicals that comprised more than 300 chemicals and 20 chemical categories. EPCRA section 313(d) authorizes EPA to add or delete chemicals from the list and sets criteria for these actions. EPCRA section 313(d)(2) states that EPA may add a chemical to the list if any of the listing criteria in Section 313(d)(2) are met. Therefore, to add a chemical, EPA must demonstrate that at least one criterion is met, but need not determine whether any other criterion is met. EPCRA section 313(d)(3) states that a chemical may be deleted if the Administrator determines there is not sufficient evidence to establish any of the criteria described in EPCRA section 313(d)(2)(A)-(C).

 

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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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USEPA Proposes 2017-2019 National Enforcement Initiatives

USEPA published on September 15 a request for public comments and recommendations on its proposed national enforcement initiatives (NEI) for fiscal years 2017–2019. USEPA selects these initiatives every three years in order to focus federal resources on what it believes are the most important environmental problems where noncompliance is a significant contributing factor and where it believes that federal enforcement attention can make a difference.

FY 2017–2019 Potential NEIs Currently Under Consideration

In addition to evaluating the current NEIs to determine which should continue and potentially be expanded and which can return to the standard enforcement program, USEPA also proposed three new initiatives for FY 2017–2019 consideration:

Toxic Air Emissions

USEPA is currently implementing an air toxics NEI and is considering expanding the initiative to include emissions from additional sources and industries. USEPA is seeking public comment on whether to significantly increase its commitment to this initiative by expanding into one or both of the following two areas: organic liquid storage tank emissions and hazardous waste air emissions.

NPDES Industrial Wastewater Discharges

This potential NEI would focus on the wastewater discharges of the industrial sectors with the highest number of violations: mining, chemical manufacturing, food processing and primary metals manufacturing. USEPA’s goal with this initiative would be to allow for a national approach for those companies that operate in more than one state and to support a consistent national strategy to achieve compliance across industry sectors.

Emergency Chemical Releases

Approximately 2,000 facilities housing hazardous chemicals are currently considered ‘‘high-risk’’ by USEPA because of their proximity to densely populated areas, the quantity and number of extremely hazardous substances they use, or their history of significant accidents. This potential NEI would be a targeted focus on the facilities and the chemicals that pose the greatest risks, with a goal of increasing industry attention to preventing accidents through training, equipment maintenance, and routine inspections.

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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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Senators Introduce Bill to Delay Stricter Ozone Rule

Senators Orrin Hatch, R-Utah, and Claire McCaskill, D-Mo., introduced a bill on Thursday under which state, local, and tribal governments may develop Early Action Compact (EAC) plans to achieve and maintain the National Ambient Air Quality Standards (NAAQS) for ozone.

“I’m concerned that the EPA will simply set an air quality standard for ozone that is unattainable for many Western states,” Hatch said. “This bipartisan legislation directs the EPA to implement a program that allows local communities to enter into voluntary cooperative agreements with the EPA to utilize locally crafted solutions to improve air quality so that they can comply with federal standards.”

The Senate Environment and Public Works Committee next week plans to hold a hearing on the Obama administration’s air agenda that will spotlight ozone.

In the House, Science, Space and Technology Chairman Lamar Smith (R-Texas) yesterday requested documents from the Obama administration related to review of the standard.

Background

On November 26, 2014, the Environmental Protection Agency (EPA) announced proposed revisions to the National Ambient Air Quality Standards (NAAQS) for ground-level ozone. If finalized, the proposal would set more stringent standards, lowering both the primary (health-based) and secondary (welfare-based) standards from the current 75 parts per billion (ppb) to somewhere in a range of 65 to 70 ppb. EPA faces an October 1 court-ordered deadline to finalize a new standard. EPA’s final limit is currently under review by the White House Office of Management and Budget.

Regardless of a change to the standard, many areas throughout the country are at risk of being designated as areas that are in “non-attainment” under the NAAQS.

In 2002, EPA initiated a program called the Early Action Compact (EAC) Program to make available an option that allowed for these areas to enter into a voluntary cooperative agreement with EPA to take early action to prevent a non-attainment designation and provide for cleaner air sooner than might have occurred by otherwise following the timelines in the Clean Air Act.

Thirteen of  the 14 areas that voluntarily opted into this program were successful in improving air quality and avoiding a non-attainment designation entirely. However, courts later found that EPA was outside its authority under the Clean Air Act to implement such a program and after that first wave from 2002-2007, EPA was not able to continue the program.

This legislation, without amending the Clean Air Act, would give clear authorization and direct the EPA to implement a similar program to the EAC so that other areas throughout the country can again have the option of taking early action to improve air quality and avoid a non-attainment designation.

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