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Environmental News Briefs – Summer 2020

July 28, 2020

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

NATIONAL NEWS

EPA Announces Proposal to Retain Current NAAQS for Ozone

On July 13, the U.S. Environmental Protection Agency (EPA) proposed to retain the current 70 parts per billion (ppb) National Ambient Air Quality Standard (NAAQS) for ozone, set in 2015. They stated that the current scientific information supports the conclusion that the 2015 standard protects public health. The Clean Air Scientific Advisory Committee, independent science advisors, also reviewed the proposal and concurred with retaining the previous 2015 standard. EPA will accept comments on this proposal for a 45-day period after publication in the Federal Register.

Contact: Eric Quiat, P.E.
(512) 579-3823
eric.quiat@powereng.com

U.S. Supreme Court Reinstates NWP-12 for New Oil & Gas Pipeline Projects

On July 6, the U.S. Supreme Court ruled to reinstate and authorize the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP-12) for new oil and gas pipeline projects. The Keystone XL pipeline, however, was excluded as part of the resurrection of this permit authorization. Since the District of Montana Federal Court ruling in April and the subsequent amendment of the ruling in May for failure to properly assess Endangered Species Act (ESA) risks, there have been limited permitting options and increased delays for oil and gas pipeline projects until this ruling.

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

States Pushing Back on EPA’s Temporary Enforcement Discretion Policy

In early June 2020, attorneys general for nine states (New York, California, Maryland, Illinois, Michigan, Minnesota, Vermont, Oregon and Virginia) filed a brief in U.S. District Court asking the court to issue a preliminary injunction to halt EPA’s “enforcement discretion” policy. This policy was outlined in a memorandum released by EPA in late March 2020. News outlets, such as National Public Radio, reported that state regulators have been inundated with requests to relax enforcement of environmental regulations. Meanwhile, in late June 2020, EPA released a memorandum stating that the temporary “enforcement discretion” policy will terminate on August 31, 2020.

Contact: Lou Corio
(410) 312-7912
lou.corio@powereng.com

TRI Reporting Requirements for 172 PFAS Compounds Officially Added

On June 22, EPA published a final rule in the Code of Federal Regulations that will officially implement the Toxics Release Inventory (TRI) reporting requirements for 172 per- and polyfluoroalkyl substances (PFAS) as required under the National Defense Authorization Act (NDAA). Addition of these PFAS compounds to TRI reporting is effective as of January 1, 2020. Facilities in TRI-regulated industries should track and collect data for these 172 PFAS chemicals during 2020. Facilities that are required to report to TRI should evaluate reporting thresholds, supplier notification requirements, possible reporting exemptions (if applicable), de minimis levels, and claims of protection from disclosure, determining their TRI requirements and appropriate actions. TRI reporting forms for the 2020 calendar year are due to EPA by July 1, 2021.

Contact: Dennis Schucker, Ph.D., P.G.
(513) 326-1549
dennis.schucker@powereng.com

EPA Issues No Action Assurance Memo for New Industrial Stormwater Discharges

There is no available permit coverage from EPA for facilities that discharge stormwater associated with industrial activity in locations where EPA is the permitting authority. The 2015 Multi-Sector General Permit (MSGP) expired on June 4, 2020, and the renewed permit is undergoing response to comments prior to reissuance. EPA acknowledges that this poses an undue hardship on industrial facilities that would be required to obtain an individual wastewater discharge permit for stormwater runoff in the absence of an available MSGP. Therefore, EPA issued a “No Action Assurance” memorandum on June 3, 2020 extending “enforcement discretion” to allow new facilities (i.e., those that began after June 4, 2020 and before the renewed permit is issued) to begin discharging stormwater without a permit. Operators must comply with all provisions of the 2015 MSGP, except submittal of the Notice of Intent (NOI). At such time as EPA issues the renewed MSGP, operators have no more than 120 days to comply with the new permit and submit a NOI.

Contact: Julie Morelli, P.G., REM
(210) 951-6424
julie.morelli@powereng.com

FERC Issues Order Limiting Authorizations

On June 9, the Federal Energy Regulatory Commission (FERC) issued Order No. 871, “Limiting Authorizations to Proceed with Construction Activities Pending Rehearing.” The Order constitutes a revision to the FERC regulations and precludes issuance of an authorization to proceed with construction of an approved natural gas project until the Commission acts upon the merits of any request for rehearing, even if the project has received all other certifications and permissions to start construction. These changes follow a pledge made by Chairman Neil Chatterjee to act on landowner-related hearing requests within 30 days to reduce the use of tolling orders in such cases. The Order is one of several initiatives by the Commission to increase public transparency.

Contact: Stacey Atella
(303) 716-8932
stacey.atella@powereng.com

American Burying Beetle Downlisting Delayed

Last spring, the U.S. Fish and Wildlife Service (USFWS) proposed to reclassify the American burying beetle (ABB) from federally endangered to federally threatened. The USFWS determined that the ABB is not currently at risk of extinction, and therefore does not meet the definition of endangered under the Endangered Species Act. In a recent court ruling, Center for Biological Diversity v. Everson, part of the USFWS Significant Portion of its Range (SPR) policy was vacated. As a result, the USFWS will need to re-assess its SPR analysis in the ABB downlisting proposal, which will delay the final determination until later this summer. Until then, ABB protections are unchanged although new rules proposed along with the reclassification could change regulatory requirements for projects.

Contact: Ben Bainbridge
(208) 788-0391
ben.bainbridge@powereng.com

S. Supreme Court Creates New Clean Water Act “Functional Equivalent” Test

On April 23, the Supreme Court opinion in the County of Maui v. Hawaii Wildlife Fund offered a new boundary on the reach of the Clean Water Act (CWA), leaving the lower courts and EPA to interpret the justices’ “functional equivalent” test. The CWA prohibits the addition of any pollutant from a “point source” to “navigable waters” without the appropriate permit from the EPA. The test was developed by the Supreme Court to help decide whether a permit is needed and weighs several factors, although not all factors may be applicable in each circumstance. The Court conceded that its test is nebulous and would require significant evaluation to determine if a discharge through groundwater is the functional equivalent of a direct discharge.

Contact: Ben Mignery
(513) 326-1513
ben.mignery@powereng.com

EPA Finalizes Miscellaneous Organic NESHAP (MON) Amendments

On May 29, EPA finalized Risk & Technology Review amendments for the Miscellaneous Organic NESHAP (MON) standards. Key revisions to the MON include removal of startup, shutdown and malfunction exemptions, expansion of flare requirements and revision of heat exchange system monitoring. Additionally, equipment defined as “in Ethylene Oxide service” will be subject to more stringent equipment control requirements.

Contact: Tiffany Dillow, REM
(410) 312-7903
tiffany.dillow@powereng.com

EPA Releases Updated Regional Screening Level Tables

On May 21, EPA released updates to the Regional Screening Levels (RSLs) Generic Tables. The RSLs are developed by EPA to be used as guidance for cleanup of Superfund sites to promote constancy nationwide. These risk-based screening levels are also often used during Phase II Environmental Site Assessments to determine if detections of contaminates warrant further investigation. The RSLs include exposure levels for compounds of concern in soil, air, groundwater and tap water for residential and industrial scenarios. The RSLs have been updated to include changes to toxicity values, exposure parameters, chemical-specific parameters, equation formats and other screening level changes for select contaminates.

Contact: Lindsey Branham
(513) 326-1565
lindsey.branham@powereng.com

STATE NEWS

Ohio EPA Plans to Study State’s Largest Rivers

On June 16, Ohio EPA announced they are accepting public comments about the Agency’s plan to study the state’s largest rivers. This is the first year for the study and the results will become a baseline for future studies. The study will assess effects of various land uses, influences from discharges and spills and performance of permitted wastewater treatment plants. It will also include an evaluation of fish and macroinvertebrates, assessing whether the streams are meeting designated criteria for aquatic life and human recreation uses. The findings of the study will be presented as a Total Maximum Daily Load (TMDL) report with recommendations for actions to address any identified water quality issues in the studied rivers.

Contact: Dennis Schucker, Ph.D., P.G.
(513) 326-1549
dennis.schucker@powereng.com

Deadly Bat Fungus Found in Montana

In May, the fungus that causes white-nose syndrome in bats was identified for the first time in three Montana counties. White-nose syndrome is the primary cause of population declines of the federally-threatened northern long-eared bat (Myotis septentrionalis). Driven by concern over northern long-eared bat populations and the fungus, the USFWS has previously created a rule under Section 4d of the ESA to allow northern long-eared bat habitat removal when it occurs within the designated “white-nose zone.” The white-nose zone includes all counties within 150 miles of a confirmed occurrence of the fungus. The new confirmed cases of the fungus in Montana will expand the white-nose zone farther west. For compliance under the ESA within the white-nose zone, all tree clearing must occur outside the northern long-eared bat pup season defined as June 1 to July 31.

Contact: Ben Bainbridge
(208) 788-0391
ben.bainbridge@powereng.com

PADEP Unveils Enhanced Online Permitting Options

On June 22, the Pennsylvania Department of Environmental Protection (PADEP) announced and commenced use of a new online permit application tool called the OnBase-DEP Public Upload Form. The OnBase system allows for more efficient and less costly processing of permit applications for both applicants and the Department. Note that the OnBase system is not applicable to permits and authorizations for which the pre-existing ePermitting process is used, including certain oil and gas program and air quality program permits, and payments are still required to be mailed.

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

TCEQ Releases Draft Air Quality Standard Permit for Marine Loading Operations

On June 1, the Texas Commission on Environmental Quality (TCEQ) released the draft Air Quality Standard Permit for Marine Loading for public review and comment. The new standard permit can authorize a limited number of facilities at a site that conducts marine loading operation activities including marine, truck, and rail loading, storage tanks, fugitives, maintenance, startup and shutdown, among others. The draft permit lists the control and monitoring requirements that must be met as well as a prescribed method for performing impacts reviews. After comments are reviewed, the TCEQ is expected to prepare the final version of the standard permit.

Contact: Eric Quiat, P.E.
(512) 579-3823
eric.quiat@powereng.com

Ohio EPA FInalizes Wetland and New Ephemeral Stream General Permit

On June 25, Ohio EPA finalized the General Permit for Category 1 and Category 2 isolated wetlands and ephemeral streams. The Navigable Waters Protection Rule, effective June 22, 2020, states that ephemeral streams are no longer federally regulated under the CWA. This state-level permit, a combination of an existing and new permit, outlines activities to fill or discharge of dredged material into ephemeral streams. Applicants will be required to submit a Pre-Activity Notice for projects that exceed 300 linear feet of cumulative fill or discharge into these resources.

Contact: Lauren Schirtzinger
(614) 502-3910
lauren.schirtzinger@powereng.com 

Proposed New Rules for Sand Mines in the San Jacinto River Watershed

On June 12 and 19, the Texas Aggregates and Concrete Association (TACA) and the Lake Houston Area Grassroots Flood Prevention Initiative (FPI) submitted separate petitions for rulemaking to the TCEQ in response to the regional need to improve flood storage and sediment capture during large storm events. TACA and FPI advocate for the establishment of new best management practices at commercial sand mines located within designated portions of the San Jacinto watershed below Lake Conroe and within Montgomery, Harris and Liberty counties. Although TACA and FPI provide very similar sample guidance documents in content and intent, one major variance is the FPI requirement for mines to maintain a “performance bond.” The performance bond would theoretically cover costs associated with remediation of breaches in perimeter berms and beneficial reclamation following completion of mining.

Contact: Nathan Collier, CPESC, CESSWI
(210) 951-6425
nathan.collier@powereng.com

PADEP Proposes RACT Rule for Oil & Gas VOC Emissions Control

On May 23, Pennsylvania’s Environmental Quality Board proposed to adopt the PADEP’s proposed rulemaking regarding reasonably available control technology (RACT) requirements and emission limitations for existing oil and natural gas sources of volatile organic compound (VOC) emissions. The affected sources include storage vessels, natural gas-driven pneumatic controllers, natural gas-driven diaphragm pumps, reciprocating and centrifugal compressors and fugitive emissions components. The PADEP estimates that the rule will apply to approximately 89,320 unconventional and conventional oil and natural gas wells, 435 midstream compressor stations, 120 transmission compressor stations and 10 natural gas processing facilities. The level of VOC control in the rule compares favorably to the requirements of 40 CFR Part 60 Subpart OOOOa. In addition to the rule’s emissions limitations, there are associated monitoring, recordkeeping and reporting requirements. The PADEP is expected to establish the RACT requirements by January 21, 2021.

Contact: John Schmelzle
(717) 942-1203
john.schmelzle@powereng.com

THC Accepts Changes to Intensive Terrestrial Surveys Guidelines

In April 2020, the Texas Historical Commission (THC) accepted proposed changes to the Council of Texas Archeologists Standards and Guidelines for Intensive Terrestrial Surveys. These changes, in brief, include increased level of effort on non-linear surveys and an emphasis and codification of deep prospection application/procedures, which will increase scope, schedule and budget of projects involving deep impacts (over three feet) and any element of the Antiquities Code of Texas and/or Section 106 of the National Historic Preservation Act.

Contact: Darren Schubert
(281) 765-5568
darren.schubert@powereng.com