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Our Insights

Environmental News Briefs – Winter 2020

February 12, 2020

News briefs were originally published in Currents, POWER’s quarterly Environmental newsletter.

NATIONAL NEWS

EPA Offers New Self-Audit Program for Existing Oil & Gas Owners

On December 19, the U.S. Environmental Protection Agency (EPA) expanded an existing self-audit and disclosure program to now include “existing” owners of upstream oil and natural gas exploration and production facilities (well sites, associated storage tanks and pollution control equipment). This expanded self-audit program provides the opportunity for “existing” owners to identify and self-disclose Clean Air Act violations. The program requires a review of the storage tank battery vapor control system design and is available for a limited time of 12 months.

Contact: Jeff Blackmore
(281) 668-7358
jeff.blackmore@powereng.com

Congress Considers Migratory Bird Protection Act of 2020 Regarding Incidental Take

On January 30, the U.S. Fish and Wildlife Service (USFWS) proposed a rule that provides regulatory clarity of the scope of the Migratory Bird Treaty Act (MBTA) regarding “intentional take” of migratory birds. In 2017, the Department of Interior Solicitor’s Office completed an in-depth analysis of the MBTA to determine the act only covers intentionally injured bird species as a result of commercial activities. Subsequently, the Migratory Bird Protection Act of 2020 (H.R. 5552) was presented to Congress initially on January 8, and the bill would prohibit any “incidental take” (i.e., injure, capture, or kill) of migratory birds unless commercial activities are authorized under a permit issued by the USFWS. The bill has been published in the Federal Register and will be solicited for public input until March 19, 2020.

Contact: Melinda Stevens
(702) 277-2986
melinda.stevens@powereng.com

CEQ Proposes Significant NEPA Revisions

On January 9, President Trump announced that the Council on Environmental Quality (CEQ), a division of the Executive Office of the President, has issued a proposed new rule that would make significant changes to its regulations implementing the National Environmental Policy Act (NEPA). The purpose of these revisions is to modernize the 50-year-old regulations; make the federal permitting process more efficient and impose time limitations; clarify agency responsibility as well as definitions and terminology; reinforce page limits for NEPA documents; outline what content will be required in Environmental Impact Statements; allow applicants and contractors to contribute to the preparation of environmental documents; and omit the “direct and indirect effects” and “cumulative effects” terms, as they are not required under NEPA. Public comments are due March 10, 2020. CEQ will also host two public hearings on the proposed rule in Denver, Colorado, and Washington, D.C.

Contact: Ashley Taylor
(281) 765-5512
ashley.taylor@powereng.com

USACE, EPA Announce Proposed Changes to WOTUS Rule 

On January 23, EPA and USACE announced the Navigable Waters Protection Rule (Rule), which re-establishes federal regulatory authority under the Clean Water Act (CWA) for waters of the U.S. (WOTUS). Under the new Rule, the agencies identify four categories of waters that are federally regulated under the CWA: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters. The Rule also details 12 categories of exclusions, features that are not WOTUS, such as: features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems. The final rule will become effective 60 days after publication in the Federal Register.
Contact: Ryan Bayer
(210) 951-6422
ryan.bayer@powereng.com

EPA Releases Interim Recommendations for PFAS Contaminated Groundwater

On December 19, EPA issued interim recommendations for addressing Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonate (PFOS) groundwater contamination under federal cleanup programs, including corrective action programs under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), and under the Resource Conservation and Recovery Act. Issuance of these recommendations is a priority under EPA’s February 2019 per- and polyfluoroalkyl substances (PFAS) Action Plan. The interim recommendations include using a screening level of 40 parts per trillion (ppt) to determine if PFOA and/or PFOS is present and may warrant further attention, and using 70 ppt for PFOA and PFOS as the preliminary remediation goal for groundwater that is a current or potential source of drinking water. Although these interim recommendations provide guidance for federal clean-up programs, it must be noted that some states have established much lower advisory levels and/or enforceable drinking water standards for specific PFAS chemicals.
Contact:  Dennis Schucker, Ph.D., P.G.
(513) 326-1549
dennis.schucker@powereng.com

EPA Updates CEDRI

In December 2019, EPA finalized the 2020 updates to the Compliance and Emissions Data Reporting Interface (CEDRI). Although primarily cosmetic, some changes were made to the reporting system. CEDRI is used for electronic reporting under many MACT and NSPS regulations, including 63 DDDDD (Industrial Boiler MACT), 63 LLL (Portland Cement MACT) and 63 ZZZZ (Engine MACT). As part of this update, EPA has discontinued the use of web forms for these regulations. Web forms may continue to be used until September 30, 2020, at which time the submittals will switch to the EPA’s Excel workbook templates. Allocating additional time to complete the forms and updating the facility’s NAICS code in CEDRI is recommended due to reported submittal issues with the new system.
Contact: Steven Babler
(913) 681-2881
steven.babler@powereng.com

USFWS Drafts Plan to Recover Rusty Patched Bumble Bee 

On January 24, the USFWS published a Draft Recovery Plan for the rusty patched bumble bee (Bombus affinis). Recovery plans describe the necessary criteria a species must attain to be downlisted or de-listed from the federal Endangered Species Act, as well as potential tools and goals to accomplish those criteria. The rusty patched bumble bee previously occupied tall grass and mixed grass prairie habitat in numerous counties across the Great Lakes region, New England and south to North Carolina. However, recent extreme population declines due to disease, habitat loss and pesticide use have reduced their occupied range by 87%. Recovery criteria spelled out in the draft recovery plan largely focus on increased populations objectives. Recovery actions to attain these criteria include the management and protection of habitat. The USFWS is accepting comments on the draft recovery plan until February 24, 2020.
Contact: Ben Bainbridge
(208) 788-0391
ben.bainbridge@powereng.com

EPA Proposes CCR and Effluent Limitations Guideline Changes

In November 2019, EPA proposed changes to coal combustion residual (CCR) regulations that affect unlined surface impoundments. A new deadline (August 31, 2020) is proposed for facilities to stop placing CCR wastes into these impoundments. The proposal specifies that all unlined impoundments must be retrofitted or closed, not just those where groundwater impacts have been detected. Perhaps more significantly, the proposed rule redefines clay-lined surface impoundments as “unlined,” which would require them to be retrofitted or closed. EPA also proposed revisions to steam electric power plant effluent limitation guidelines (ELGs), which apply to flue gas desulfurization wastewater and bottom ash transport water. Among other changes, the proposal changes the technology basis for treatment of these wastewater sources and proposes new dates for compliance. EPA is currently reviewing and evaluating public comments.
Contact: Eric Riekert
(513) 326-1549
eric.riekert@powereng.com

EPA Issues RMP Reconsideration Final Rule

In December 2019, EPA published the final Risk Management Program (RMP) Reconsideration Rule. Through this rule, EPA finalized the changes to the RMP Amendments Rule issued in January 2017—changes driven primarily by objections highlighted in three petitions for reconsideration. EPA stated that the changes finalized in the Reconsideration Rule address potential security risks associated with the new information disclosure requirements introduced in the Amendments Rule. Other changes include reducing unnecessary and ineffective regulatory burdens on facilities and emergency responders and better harmonized RMP requirements with the Occupational Safety and Health Administration Process Safety Management standard.
Contact: Lou Corio
(410) 312-7912
lou.corio@powereng.com

Federal Agencies Share Rulemaking Activities Through Fall 2020

On December 26, the Office of Management and Budget published its semi-annual agenda of upcoming regulatory activities for various departments and executive agencies for the next 12 months. The Trump administration is targeting regulatory reform to eliminate ineffective, duplicative or obsolete regulations. EPA has approximately 100 agenda items along with many relevant updates from the Departments of Labor, Defense, Transportation, Energy and the Interior. To gain insight into the regulatory targets and view the full agenda for the various departments and agencies, visit reginfo.gov.
Contact: Jennifer Nietz
(614) 902-4002
jennifer.nietz@powereng.com

EPA Issues MACT Rule Changes Pursuant to Court Ordered Deadlines  

EPA is under court-mandated deadlines in 2020 to finalize Risk and Technology Review (RTR) rulemakings for many Maximum Achievable Control Technology (MACT) source categories. These deadlines are in two “bins”: March 13 and June 30. Twenty RTR rules must be issued in March, including these source categories: metal can, metal coil, plastic parts, HCl production, ethylene production, asphalt processing and roofing, reinforced plastics and composites production, paper and other web integrated iron and steel, stationary combustion, solvent extraction for vegetable oil, site remediation, municipal solid waste landfills, and miscellaneous organic National Emission Standards for Hazardous Air Pollutants (NESHAP), or MON. Key revisions common to some of the rules include removing Startup, Shutdown and Malfunction (SSM) exemptions in accordance with the 2008 Sierra Club vs. EPA court case; enhancement of flare requirements, and incorporation of the El Paso heat exchange system monitoring method.
Contact: Tiffany Dillow, REM
(410) 312-7903
tiffany.dillow@powereng.com

Transportation Climate Initiative Releases Draft MOU

On December 17, the Transportation and Climate Initiative (TCI), a regional collaboration of 12 Northeastern states and the District of Columbia, released a draft Memorandum of Understanding (MOU) that provides details on a proposed cap-and-invest system to facilitate a reduction in greenhouse gas (GHG) emissions from the transportation sector. Approximately 40% of the region’s GHG emissions can be attributed to this sector. Signatory Jurisdictions of the final MOU (expected in Spring 2020) will jointly develop a Model Rule that establishes a cap on GHG emissions from the transportation sector (via caps for on-road diesel and motor gasoline fuels that will decrease over time), and will make a commitment to implement individual cap-and-invest programs. Comments on the draft MOU are due February 28, 2020.
Contact:  Tom Rolfson, P.E.
(207) 869-1418
tom.rolfson@powereng.com

STATE NEWS

KDHE Requires KEIMS for All Submittals

The Kansas Department of Health and Environment (KDHE) has developed and launched the Kansas Environmental Information Management System (KEIMS), an online data management system used to create and manage permit applications, compliance reports and more. This system will serve as a “one-stop-shop” for the Division of Environment and can be used by various parties, including but not limited to: property owners, consultants, tank owners and facility operators. As of January 1, 2020, all air permit applications and compliance reports must be submitted through KEIMS. KDHE will no longer accept paper copies. KEIMS has a variety of tools for facilities, including reminders about upcoming compliance submittals and integrated forms for all air permit applications. KEIMS is currently being used by the Bureau of Remediation and the Bureau of Air, but is expected to expand services and incorporate more of the Division of Environment throughout the year.
Contact: Taylor Naab
(913) 681-2881
taylor.naab@powereng.com

TCEQ Approves Bexar County SIP Revision

On January 15, the Texas Commission on Environmental Quality (TCEQ) approved a §179B Demonstration State Implementation Plan (SIP) Revision proposal for the Bexar County (San Antonio) Ozone Nonattainment Area. The SIP revision demonstrates Bexar County would attain the 2015 Ozone National Ambient Air Quality Standards by its attainment deadline “but for” emissions coming from outside the United States. EPA approval of TCEQ’s proposed §179B demonstration could prevent Bexar County from being reclassified from a marginal to a moderate nonattainment area. If the SIP revision is approved by EPA, marginal ozone nonattainment area requirements would continue to apply until Bexar County is formally redesignated attainment.
Contact: Erik Hendrickson
(512) 579-3808
erik.hendrickson@powereng.com

Ohio Releases Statewide Action Plan for PFAS in Drinking Water

On December 2, the Ohio Department of Health and Ohio EPA released the Ohio PFAS Action Plan for Drinking Water. Developed at the direction of the Governor, the plan is a first step in determining if PFAS chemicals are common in the public water systems in Ohio. Under the plan, Ohio EPA will coordinate the testing of approximately 1,500 public water supply systems within the state during 2020. Where PFAS are detected, analytical results will be evaluated against screening levels for six PFAS compounds. These comparative evaluations will be used to provide guidance to drinking water system operators to mitigate possible health risks and to identify appropriate short-term and long-term measures to reduce exposures.
Contact: Dennis Schucker, Ph.D., P.G.
(513) 326-1549
dennis.schucker@powereng.com

PADEP Finalizes Public Participation Guidance for Development of Regulations

On December 14, the Pennsylvania Department of Environmental Protection (PADEP) published final guidance that outlines the process by which environmental regulations are developed, reviewed and finalized in Pennsylvania. The new guidance better defines the public participation process, including: public comment periods, the roles of advisory committees and the Independent Regulatory Review Council, advance notices of proposed and final rulemaking, and other submissions regarding regulations that the public can submit to PADEP at any time.

Contact: Jim Young, P.G.
(717) 942-1202
james.young@powereng.com