By Mary Ellen Ternes
EPA 2011-2013 Enforcement Initiatives
Head’s up! The United States Environmental Protection Agency (EPA) is actively pursuing enforcement consistent with its 2011-2013 Enforcement Initiatives:
With EPA’s enforcement initiatives, EPA conveys its intent to focus enforcement efforts with respect to particular pollutants, media and industry sectors.
Regarding sewage and stormwater, EPA is focusing on operation of publicly owned treatment works and combined sewer overflows (CSOs), sanitary sewer overflows (SSOs) and municipal separate storm sewer systems (MS4s), and seeks increased use of green infrastructure and other innovative approaches to reducing these discharges. Regarding toxic emissions, EPA is focusing on excess emissions caused by facilities’ failure to comply with EPA’s leak detection and repair requirements and restrictions on flaring, and to address excess emissions during start-up, shutdown and malfunction events, focusing on local communities that are disproportionately impacted by pollution from multiple sources. With respect to the large air pollution emission sources, despite EPA’s previous enforcement focus on large refineries, coal-fired power plants, cement manufacturing facilities, sulfuric and nitric acid manufacturing facilities and glass manufacturing facilities, EPA says there’s more work to do, so those of us working in these industries, the pressure is definitely not off. With respect to mineral processing operations, EPA wants to reduce pollution from an industry which EPA says generates more toxic and hazardous waste than any other industrial sector based on EPA’s Toxic Release Inventory. Finally, within the energy extraction sector, EPA is focusing on air, surface water and ground water impacts from new energy extraction techniques and accelerated development.
- Reducing Discharges of Raw Sewage and Contaminated Stormwater into Surface Waters
- Preventing Animal Waste from Contaminating Surface and Ground Waters
- Cutting Toxic Air Pollution that Affects Communities’ Health
- Reducing Air Pollution from Largest Sources, especially Coal-Fired Utilities, Cement, Glass and Acid Sectors
- Reducing Pollution from Mineral Processing Operations
- Improving Environmental Compliance Within Energy Extraction Sector
What this means to chemical engineers in the environmental field is that we have seen, and should expect more, EPA oversight of regulated activities, including inspections, cease and desist orders and requests for industry information to inform EPA in its implementation of its enforcement initiatives. Any of us who have received and been required to respond to EPA Requests for Information pursuant to the Clean Air Act (CAA) Section 114, Clean Water Act (CWA) Section 308, Resource Conservation and Recovery Act (RCRA), Section 3007, or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or “Superfund”) Section 104, know the burden imposed by these requests. Pursuant to the CAA and CWA statutory sections, EPA is authorized to require those subject to these statutes to furnish information, conduct monitoring, provide entry to the Administrator or authorized representatives and make reports as may be necessary to carry out the objectives of the statutes. Pursuant to the RCRA statutory section, EPA is authorized to request information regarding handling of hazardous wastes, and pursuant to the CERCLA statutory section, EPA is authorized to request information regarding actual and/or threatened “releases” of hazardous substances, pollutants or contaminants as defined by CERCLA. Failures to respond, or inadequate responses are subject to enforcement, and EPA can use the information provided in responses for administrative, civil or criminal enforcement actions.
Federal Common Law is Displaced by EPA’s Regulation of Greenhouse Gas Emissions
While chemical engineers have been working on GHG reporting pursuant to EPA’s Mandatory Greenhouse Gas Reporting Rule, and calculating potential to emit GHG emissions in Clean Air Act permitting where required pursuant to EPA’s “Tailoring Rule,” the United States Supreme Court reviewed whether EPA’s regulation of GHG emissions pursuant to the CAA preempts law suits filed under “common law,” in this case the claim of public nuisance as argued by several states including Connecticut in their lawsuit against AEP and other fossil-fuel fired power plant entities for their GHG emissions. Industry argued essentially that EPA’s regulation of GHG emissions under the CAA preempted any further challenge relying upon a federal common law claim of public nuisance. The lawsuit had been filed initially before EPA began regulating GHG emissions, and the defense that EPA’s CAA regulations preempted the common law public nuisance suit was not available at that time.
On June 20, 2011, the United States Supreme Court held that the CAA and the EPA action authorized by the CAA displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Specifically, the Court stated the displacement test as simply "whether the statute speaks directly to the question at issue," and that in this case, Massachusetts v. EPA had made clear that emissions of carbon dioxide qualify as air pollution subject to the CAA. The Court found that the CAA Section 111 (NSPS) direction to EPA to establish emission standards for categories of stationary sources, and EPA's listing of the fossil-fuel fired power plant category, is enough to create carbon dioxide emission limits, leaving "no room for a parallel track" via federal common law. The Court rejected the argument that federal common law is not displaced until EPA actually exercises its regulatory authority in adopting standards, citing the Milwaukee II displacement test, "whether the field has been occupied, not whether it has been occupied in a particular manner."
New EPA Air Regulations Proposed for Oil and Natural Gas Industry
On July 28, 2011, EPA proposed new regulations governing the oil and natural gas production industry sector (to be codified at 40 CFR Parts 60 and 63; as of this writing, not yet published in Federal Register). With this, EPA proposes four air regulations for the oil and natural gas industry: a new source performance standard (NSPS) for VOCs; a NSPS for sulfur dioxide; an air toxics (NESHAPs) standard for oil and natural gas production; and a NESHAPs for natural gas transmission and storage. EPA is also proposing to add to the source category list any oil and gas operation not covered by the current listing and not previously subject to federal regulation.
The new NSPS source category listing includes well completions at new hydraulically fractured natural gas wells and at existing wells that are fractured or “re-fractured.” EPA is proposing to minimize VOC emissions from well completions by requiring “green completions,” also called “reduced emissions completions,” where special equipment separates gas and liquid hydrocarbons from the flowback that comes from the well as it is being prepared for production, currently utilized through EPA’s Natural Gas STAR program (not including exploratory or delineation wells). Also, EPA proposes to require dry seal systems for centrifugal compressors and VOC emission limits for pneumatic controllers. EPA proposes VOC emission reductions for condensate and crude oil storage tanks with a throughput of at least 1 barrel per day of condensate or 20 barrels per day of crude oil (equivalent to about 6 tons of VOC emissions per year) must reduce VOC emissions by 95 percent and new NSPS leak detection and repair requirements for natural gas processing plants.
Regarding air toxics, for oil and natural gas production, EPA is proposing to remove the 1 ton per year benzene compliance option for large glycol dehydrators and require these units to reduce their air toxics emissions by 95 percent. In addition, EPA is proposing to: (1) establish emission limits for small glycol dehydrators at major sources; (2) require all crude oil and condensate tanks at major sources to control their air toxics by at least 95 percent; (3) tighten the definition of a leak for valves at natural gas processing plants. For natural gas transmission and storage, EPA proposes to remove the 1 ton per year benzene compliance alternative for large glycol dehydrators and establish emission limits for small glycol dehydrators at major sources.
Definition of Waters of the US: Draft Guidance
By Heidi S. Brasher
Released for public comment on April 27, 2011, with comments accepted until July 31, 2011 (76 Fed. Reg. 24479 (May 2, 2011)), the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers are in the final stages of updating their Draft Guidance on Identifying Waters Protected by the Clean Water Act (“draft Guidance”). This Guidance was last updated in 2008, prior to the landmark U.S. Supreme Court decision, Rapanos v. United States, 547 U.S. 715 (2006) which revealed the difficulties in classifying waters when the Justices of the U.S. Supreme Court could not even agree.
This Guidance contains several helpful sections illustrating application of the definition, which can be used in developing approaches to permitting, siting and compliance, including: traditional navigable waters classification; interstate waters classification; “significant nexus” standard, as described by Justice Kennedy in the Rapanos decision; tributary jurisdictional issues; “adjacent wetlands” jurisdiction; “other waters” classification; examples of waters generally not considered “waters of the U.S.”; and necessary documentation to support decisions regarding whether waters are protected. Note, while the Guidance contains much information and insight, it is not regulation, but serves as general notice of Agency interpretation. Keep an eye out for the final version which will supersede the previous 2008 version.
Cooling-Water Intake Unit Requirements: Proposed rule
By Jessica John Bowman
On April 20, 2011, 76 Fed. Reg. 22174 (to be codified at 40 CFR Parts 122 and 125), EPA proposed a new rule under section 316(b) of the Clean Water Act governing design, construction and use of cooling water intake structures, requiring that the “location, design, construction, and capacity” of such structures “reflect the best technology available for minimizing adverse environmental impact.” The proposed rule is intended to mitigate the impact of cooling water intake structures on fish and wildlife populations, and would apply to existing facilities if: (1) the facility is a point source that uses or proposes to use cooling water from one or more intake structures (whether it does so directly or through an independent supplier that provides cooling water to the facility pursuant to a contract or other arrangement); (2) the total design intake flow of the cooling water intake structure or structures is greater than 2 million gallons per day (MGD); and (3) the cooling water intake structure withdraws cooling water from the waters of the United States and at least twenty-five percent of the water withdrawn is used exclusively for cooling purposes.
With this action, EPA proposes new reporting requirements, new impingement and entrapment control requirements and new entrainment controls. Regarding new reporting requirements, under the proposed rule, those facilities with a design impact flow of more than 2 MGD would be required to submit additional information not currently required under NPDES permitting regulations, including proposed impingement mortality reduction plans, relevant biological survival studies, and the operational status of each water-intake unit. Facilities with an actual intake flow of more than 125 MGD face additional reporting requirements. All existing facilities would be required to meet either a design standard or a performance standard for impingement mortality, while entrainment-mortality controls would be established on a case-by-case basis by the permitting authority. Facilities with a cooling-water intake of greater than 125 MGD AIF would be subject to additional entrainment requirements. New cooling-water intake units at existing facilities would be subject to additional requirements similar to those required at new facilities, specifically, new units will be required to reduce intake flow to a level commensurate with that of a closed-cycle cooling unit.
Proposed Revisions to Definition of Solid Waste, Again
On July 22, 2011, EPA proposed additional revisions to the 2008 revision to the definition of solid waste. 76 Fed. Reg. 44094 (to be codified at 40 CFR Parts 260, 261 and 266). With this revision, EPA intends to introduce new safeguards for recycling hazardous materials, an activity encouraged by the 2008 redefinition, in addition to additional provisions encouraging recycling.
The proposed new safeguards include: (1) replacing the transfer-based exclusion with alternate hazardous recyclable materials standard; (2) adding a regulatory definition of “contained” and additional recordkeeping requirements for generator-controlled exclusion; (3) making all four legitimacy factors (materials must provide a useful contribution to the recycling process or to a product or intermediate; recycling must produce a valuable product or intermediate; materials must be managed as valuable commodities; products of recycling must contain levels of hazardous constituents comparable to those in analogous products) mandatory and requiring documentation; (4) applying the regulatory definition of legitimate recycling to all hazardous waste and hazardous secondary material recycling; (5) possibly (EPA requests comments) application of the contained standard, notification, and recordkeeping for speculative accumulation to existing recycling exclusions.
The proposed additional provisions encouraging recycling include: (1) alternative standard allows generators longer accumulation time (one year) if there is a reclamation plan in place; (2) retaining the generator-controlled exclusion for recycling performed on-site, at the same company, or under certain tolling agreements; (3) providing a petition process for instances where legitimacy factors are not met, but recycling is still legitimate; (4) EPA has requested comment on a targeted exclusion for higher-value hazardous solvents which are re-manufactured into commercial-grade products.
SUSTAINABILITY and EPA
NRC’s Framework for EPA’s Incorporation of Sustainability in Principles and Decision Making
On August 2, 2011, the National Research Council (NRC) issued a report providing a framework for incorporating sustainability into the U.S. Environmental Protection Agency’s principles and decision making. EPA requested the framework to assist it in better assessing the social, environmental, and economic impacts from its decision making process. The NRC committee responsible for developing the framework used the 1969 National Environmental Policy Act’s congressional declaration of national environment policy: “to create and maintain conditions under which humans and nature can exist in productive harmony, that permit fulfilling the social, economic, and other requirements of present and future generations.” The NRC’s recommended approach goes beyond health and environmental risk associated with pollution, to address other issues threatening future generations, including depletion of natural resources, climate change, and loss of biodiversity. NRC recommends the EPA utilize the “three pillars” approach considering environmental, social and economic impacts, including “health” in the “social pillar.” NRC also recommends that EPA articulate its vision for sustainability, develop its own sustainability principles to support its decision making process and consider development of an active program implementing sustainability assessment and management for specific activities and decisions.