compliance

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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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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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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EPA to Offer Streamlined System for Self-disclosure and Penalty Mitigation

This fall, EPA will unveil eDisclosure, a web-based system to more efficiently receive and process compliance violations self-disclosed under its 2000 Audit Policy and Small Business Compliance Policy.

These policies offer penalty mitigation and other incentives for companies that discover, promptly disclose, and quickly correct environmental compliance violations and take steps to prevent future violations. While the new system will make reporting easier and speed the resolution process, the requirements of the audit policies will remain unchanged.

In general, to take advantage of the penalty mitigation under the audit policy, the following conditions must be met:

  1. Systematic Discovery (discovery of the violations through an environmental compliance audit or through an environmental management system review) – required for 100% penalty mitigation, otherwise only 75% mitigation
  2. Voluntary Discovery
  3. Prompt Disclosure – within 21 days of discovery
  4. Discovery, Disclosure Independent of Government/Third Party Plaintiff
  5. Correction and Remediation – within 60 days after discovery unless written agreement/order
  6. Prevent Recurrence
  7. No Repeat Violations – can’t have same or closely related violation at same facility within past 3 years
  8. Other Violations Excluded (serious actual harm, imminent and substantial endangerment)
  9. Cooperation

The portal will accept new disclosures involving almost all types of civil violations. Pre-existing unresolved EPCRA disclosures can be resubmitted through the eDisclosure system within 90 days after launch of the portal, but preexisting disclosures that are subject to audit agreements will be resolved outside the eDisclosure system through a Notice of Determination (NOD), Consent Agreement and Final Order (CAFO), or Consent Decree (CD).

To use the eDisclosure portal, reporters must: (1) register with the system; (2) promptly disclose their violations online within 21 days of discovery; and (3) submit an online Compliance Report certifying that any noncompliance was timely corrected. The Compliance Report is usually due within 60 days of submitting an initial online Audit Policy disclosure (or within 90 days for Small Business Compliance Policy disclosures), but limited reporting deadline extensions will be available in certain circumstances.

Compliance violation disclosures resolved through the portal will be resolved either as a “Tier 1” or “Tier 2” disclosure.

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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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FLASH: Judge Clarifies WOTUS Injunction Limited to 13 States

A federal judge in North Dakota has clarified that his injunction blocking a new USEPA definition of “waters of the United States” in the language of the Clean Water Act applies only to the 13 states that sued to block the rule and is not applicable nationwide.

The ruling by U.S. District Judge Ralph Erickson clarified the temporary injunction he issued on August 27 at the request of North Dakota and 12 other states. The states sought to stop USEPA and the Army Corps of Engineers from regulating some small streams, tributaries and wetlands under the Clean Water Act.

“Because there are competing sovereign interests and competing judicial rulings, the court declines to extend the preliminary injunction at issue beyond the entities actually before it,” Erickson wrote.

 The states involved in the lawsuit with North Dakota are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.

This week, Mississippi and Alabama joined 16 other states in filing a separate motion to block the rule.

via US News and World Report

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Part III: 5 Environmental Programs that Apply to You: Spill Prevention

One of the toughest tasks in 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.

This is the third in a five part series. In part one, we examined the requirements of the Emergency Planning and Community Right to Know Act (EPCRA). In part two, we looked at the Clean Water Act’s Stormwater Permtting Program.

In this third article of a five part series, we will briefly touch on the requirements of the Clean Water Act’s Spill Prevention, Control, and Countermeasures (SPCC) rule.

EPA regulations require certain facilities that use, store, or process oil to develop written plans to prevent, mitigate, and respond to spills. The Facility Response Plan (FRP) rule and the Spill Prevention, Control, and Countermeasures (SPCC) rule were implemented in response to a catastrophic 1988 spill in Jefferson Hills, Pennsylvania, where nearly 1 million gallons of diesel fuel was spilled into the Monongahela River. The accident was determined to be the result of an improperly reassembled storage tank.

The SPCC rule requires facilities to install secondary containment and other structures to prevent a spill from migrating offsite, to develop a written response plan, to conduct routine training, and to perform periodic inspections of storage tanks and piping.

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Part II: 5 Environmental Programs that Apply to You: Stormwater

One of the toughest tasks in 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.

This is the third in a five part series. In part one, we examined the requirements of the Emergency Planning and Community Right to Know Act (EPCRA). In part three, we looked at the Clean Water Act’s Spill Prevention Rule.

In this second article of a five part series, we will briefly touch on the requirements of the Clean Water Act’s Stormwater Permitting program.

Stormwater Permitting

Stormwater includes rainfall and snow melt that leaves your facility either through a concentrated discharge such as a ditch or culvert or overland as a sheet flow. An industrial facility is required to obtain a permit and develop a plan to prevent stormwater contamination if it has a stormwater discharge associated with an industrial or commercial activity either directly to waters of the United States or to a municipal separate storm sewer system and it engages in one or more of the industrial or commercial activities identified by USEPA in the regulation.

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FLASH: EPA Proposes Methane Standards for Oil & Gas Industry

USEPA proposed new methane emissions standards on Tuesday for the oil and gas industry.

As part of the proposal, the agency is updating the 2012 New Source Performance Standards (NSPS) to address methane as well as VOC emissions for sources covered in that rule. EPA’s proposal would also require that industry reduce VOC and methane emissions from hydraulically fractured and refractured oil wells. The proposal is also intended to reduce methane and VOC  emissions downstream from wells and production sites, covering equipment in the natural gas transmission segment of the industry that was not regulated in the agency’s 2012 oil and natural gas rules. Additionally, the agency proposes to clarify and streamline Clean Air Act permitting requirements in states and Indian country.

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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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