Our Insights

Environmental News Briefs – Summer 2018

August 1, 2018

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


EPA Proposes Cost-Benefit Analysis Reform

On June 13, EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public comment on whether and how to increase consistency and transparency in considering costs and benefits in the rulemaking process. EPA promulgates regulations under federal environmental statutes such as the Clean Air Act (CAA) and Clean Water Act (CWA). These statues typically allow considerations for the financial costs when setting pollution standards, but in past rulemaking proceedings these cost analyses have been perceived as inconsistent. EPA is requesting comments regarding these perceived inconsistencies in the rulemaking process, and on how to create a regulatory approach to fix these issues. Public comments were due July 13.

Contact: Steven Babler
(913) 402-4215

New Rules and Alternative Standards Proposed for Addressing Coal Combustion Residuals

Earlier this year, EPA proposed Phase I revisions to the Coal Combustion Residual (CCR) rules (40 CFR Part 257). The three main goals of the proposed revisions are to address items repealed by the D.C. Circuit regarding: non-groundwater releases of CCR requiring remediation; allowing the use of CCR in constructing final covers for CCR units; and allowing participating states and EPA to allow alternative performance standards to address releases to groundwater from CCR units. EPA anticipates taking action on the proposed rule changes in June 2019. Other potential revisions, should the EPA act on them, will be proposed in a Phase II rulemaking by September 2018 and finalized by December 2019.

Contact: Betty Moore, P.G.
(512) 879-6622

Additional Air Quality Designations for the 2015 Ozone NAAQS Completed

EPA completed additional 2015 ozone national ambient air quality standards (NAAQS) area designations on April 30, 2018. Approximately 85 percent of the country had previously been designated (as attainment/unclassifiable or unclassifiable) on November 6, 2017. Initial air quality designations have now been completed for most of the United States. The final rule does not include eight counties in the San Antonio, Texas, metropolitan area. EPA will complete the designations for these counties by July 17, 2018. The initial designations are summarized in 40 CFR Part 81 for each state.

Contact: David Castro
(512) 579-3820

EPA Issues New Policy on “Common Control” for NSR and Title V Permitting

In a letter dated April 30 to the Pennsylvania Department of Environmental Protection (PADEP), EPA outlined its new policy on determining which facilities or entities should be considered part of the same source for the purposes of New Source Review (NSR) and Title V permits. One of the criteria in the NSR rules stipulates that entities may be considered part of the same source if they are under common control. EPA clarified that the “common control” criteria should be based on the power or authority of one entity to dictate decisions of the other that could affect the applicability of, or compliance with, relevant air regulatory requirements. Control is established only when an entity has the power to make decisions regarding air emissions-generating activities.

Contact: Lou Corio
(410) 312-7912

New SNURs Requirements Considered for Asbestos Regulation

On June 11, EPA published proposed requirements under the Toxic Substances Control Act’s (TSCA) Significant New Use Rule (SNUR) regulating manufacturing (including importing) or processing asbestos for certain uses that the EPA has identified as no longer “ongoing.” This proposed SNUR would require entities that intend to manufacture or process any form of asbestos to notify EPA at least 90 days before commencing such manufacturing (including importing) or processing and obtain approval for such activities. The proposed rule will allow EPA to receive advanced notice of any future manufacturing or processing that may produce changes in human and environmental exposures, and to ensure that an appropriate determination has been issued prior to the commencement of such activities. Comments on the proposed rulemaking are due on August 10, 2018.

Contact: Michele Foss, REM
(281) 668-7342

NGOs Challenge DOI’s New Interpretation of “Incidental Take” Migratory Bird Treaty Act

On May 24, multiple environmental organizations collectively filed two complaints in the U. S. District Court for the Southern District of New York seeking to overturn recent legal and policy guidance issued by the U.S. Department of the Interior (DOI) and U.S. Fish and Wildlife Service (USFWS). On December 22, 2017, the DOI issued a Memorandum regarding the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings” of migratory birds that could occur during the development, construction, or operation of otherwise lawful activities. The Memorandum establishes that criminal liability under the MBTA should not be applicable to incidental takes but only apply to actions whose primary purpose is the taking or killing of migratory birds, their nests, or their eggs.

Contact: Lance Gillaspie
(281) 668-7343

EPA Proposes to Rescind RMP Provisions Amended Under Obama Administration

On May 30, EPA announced that it is proposing to rescind several key Risk Management Program (RMP) amendments previously adopted on January 13, 2017, as well as modifying provisions related to local emergency coordination and emergency exercises. Most of the provisions the EPA is proposing to rescind with this rulemaking focus on requirements for third-party compliance audits, technology and alternatives analyses for Program 3 processes, and scopes of hazard reviews. Other modifications to the rule under consideration involve adding flexibility for facilities to meet exercise requirements and enhancing security measures. Facilities will be required to provide local response organization(s) with their emergency plan and contact information, and to request an opportunity to meet with the response organization to discuss these materials. Comments on the proposed rule are due on or before July 30.

Contact: Natasha Halageri
(281) 668-7345

Aerosol Cans Proposed for Universal Waste Regulations

In March, EPA proposed adding hazardous waste aerosol cans to the universal waste program. Universal waste is regulated under the Resource Conservation and Recovery Act (RCRA). If the proposal is finalized, managing spent and discarded aerosol cans will be much simpler for all industries, including the retail sector. The collection and recycling of aerosol cans will be encouraged, similar to fluorescent bulbs, mercury vapor bulbs, and batteries that are currently covered under the universal waste program. The universal waste program eases the regulatory burden of managing certain hazardous wastes to reduce the quantity of these wastes going to municipal solid waste landfills.

Contact: Bonnie Blam, CSP
(512) 579-3817

OSHA Delays Enforcement of Parts of Beryllium Standard

On May 9, the Occupational Safety and Health Administration (OSHA) confirmed they will begin enforcing certain requirements of the final rule on occupational exposure to beryllium in general industry, construction, and shipyards. Specifically, enforcement has begun for the permissible exposure limits in the general industry, construction, and shipyard standards; and for general industry only, the exposure assessment, respiratory protection, medical surveillance, and medical removal provisions. However, OSHA will not enforce any other ancillary provisions of the beryllium standards for general industry (29 CFR 1910.1024) until June 25, which OSHA plans to extend to December 12, 2018. Note that OSHA previously proposed removing the ancillary requirements from the beryllium standards for the construction and shipyard industries.

Contact: Molly McKenna
(512) 579-3837

EPA Announces $15.7M in Supplement Funds for Contaminated Brownfield Site Cleanups Across the U.S.

On June 7, EPA announced the selection of 33 high-performing Revolving Loan Fund (RLF) grantees located in 20 different states. These states will receive approximately $15.7 million in supplemental funding to help their communities continue the work to carry out cleanup and redevelopment projects on contaminated brownfield properties. States receiving the highest funding are Maine, Connecticut, New York, Georgia, and Wisconsin. RLF grant recipients cannot be parties that are potentially liable for the contamination at a brownfield site.

Contact: Dave Sorrells, P.E.
(512) 879-6626

U.S. Fish and Wildlife Service Delisting the Black-Capped Vireo

The USFWS is removing the black-capped vireo from the Federal List of Endangered and Threatened Wildlife because it has recovered and no longer meets the definition of endangered under the Endangered Species Act. The black-capped vireo was listed endangered by USFWS in 1987 due to habitat loss and nest parasitism. At the time it was listed, there were only an estimated 350 adult birds reported within the known breeding range located within Texas, Oklahoma, and Mexico. Through conservation efforts by state and federal agencies alongside private landowners, the black-capped vireo has made a full recovery with a healthy population and provided habitat.

Contact: Bob Fisher
(281) 668-7349

EPA Proposes Petroleum Refinery Rule Changes

On April 10, EPA proposed amendments to Refinery MACT 1 and 2 and NSPS Subpart Ja for petroleum refineries. The amendments to Refinery MACT 1 included new requirements for maintenance vents, pressure relief devices (PRDs), delayed coking units (DCUs), fence line monitoring, and flares. The amendments to Refinery MACT 2 addressed continuous compliance alternatives for catalytic cracking units and startup and shutdown provisions for catalytic cracking units and sulfur recovery plants. The NSPS Ja amendments included corrections and clarifications to provisions for sulfur recovery plants, performance testing, and control device operating parameters. Comments were due on May 25.

Contact: Tiffany Dillow, REM
(410) 312-7903


CDPHE Working with Industry to Reduce Hydrocarbon Emissions in Colorado

In June, discussions began on developing statewide emission reduction strategies in an effort led by the Colorado Department of Public Health and Environment (CDPHE). The CDPHE is seeking to reduce hydrocarbon emissions in the Denver Metropolitan, Northern Front Range Ozone Non-Attainment Area (DMNFR) to avoid it being reclassified from “moderate” to “serious,” which would drastically reduce major source and major modification permitting thresholds. The resulting CDPHE-driven “Statewide Hydrocarbon Emission Reduction” or “SHER” team has members joining forces from the oil and gas industry, NGOs, and local governments with a goal to develop statewide emission reduction strategies, including potential additional controls in the DMNFR. The SHER team will provide a progress update in January 2019 and present its final recommendations in January 2020.

Contact: Pete Stevenson
(512) 579-3805

Ozone Designation for San Antonio Expected July 2018

On April 30, EPA completed the 2015 ozone NAAQS area designations for most of the United States. The final rule does not designate eight counties in the San Antonio, Texas metropolitan area. In the EPA’s March 19 response to Texas’ designation recommendations, EPA stated their intent to designate the San Antonio area counties of Atascosa, Bandera, Comal, Guadalupe, Kendall, Medina and Wilson as attainment/unclassifiable. Additionally, EPA intends to designate all or portions of Bexar County as, at best, unclassifiable. EPA will consider any additional information submitted by Texas before completing the designations for this area. As required by a March 12 District Court order, the eight San Antonio area counties are to be designated by July 17.

Contact: David Castro
(512) 579-3820

Maryland to Join the U.S. Climate Alliance

In April, the Maryland General Assembly passed a bill requiring Maryland to join the U.S. Climate Alliance. At the start of this year’s legislative session, Governor Larry Hogan had expressed interest in having Maryland join the Alliance, so he is expected to sign the bill into law this summer. Maryland will join 14 other states and Puerto Rico as Alliance members, agreeing to implement policies that advance the goals of the 2015 Paris Climate Change Agreement. Maryland, on track to meet its own goal of reducing greenhouse gas emissions 20 percent by 2020, is in a strong position to meet the Alliance’s goal of a 26 to 28 percent reduction (below 2005 emission levels) by 2025.

Contact: Lou Corio
(410) 312-7912

PADEP Issues New and Modified General Air Permits for Oil & Gas Facilities

On June 9, PADEP published a notice of issuance in the Pennsylvania Bulletin for the modified GP-5 for Natural Gas Compression Stations, Processing Plants, and Transmission Stations and the new GP- 5A for Unconventional Natural Gas Well Site Operations and Remote Pigging Stations. The effective date for both permits is August 8, 2018. Modifications to the GP-5 include electronic submission of certain notifications, reporting requirements for blowdown and venting events, and revised emission limits for stationary natural gasfired internal combustion engines. The new GP-5A applies to well site facilities that are newly installed or modified after the effective date, and the PADEP Exemption Category No. 38 for such facilities is revised to include a more restrictive site-wide volatile organic compound (VOC) emission limit and a new individual source methane emission limit. The modified GP-5 and new GP-5A permits and supporting documents are available on PADEP’s website.

Contact: John Schmelzle
(717) 942-1203