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Environmental News Briefs – Spring 2020

May 6, 2020

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

NATIONAL NEWS

EPA, USACE Publish New WOTUS Definition

On April 21, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) published a final rule that clarifies the definition for “waters of the United States” (WOTUS) under the Clean Water Act. The Navigable Waters Protection Rule establishes four categories of waters that are considered WOTUS. This is the second step in a two-step process to revise the definition of WOTUS consistent with the Executive Order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” signed on February 28, 2017. The Rule takes effect on June 22, 2020 and will replace the rule published on October 22, 2019.

Contact: Duane Peters
(717) 942-1205
duane.peters@powereng.com

EPA Releases Guidance on Enforcement Discretion Due to COVID-19

On March 26, EPA released a memorandum documenting the “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” with a range of enforcement discretion they expect to provide for noncompliance resulting from the COVID-19 pandemic. The relief is temporary and applies retroactively from March 13, 2020 until rescinded. In general, entities must continue to make every effort to meet their environmental obligations. If compliance is not reasonably practicable, the memo provides the minimum documentation needed to claim enforcement discretion.

Contact: Thomas Sullivan, P.E.
(512) 879-6632
thomas.sullivan@powereng.com

EPA Proposes 2020 Multi-Sector General Permit for Industrial Stormwater Discharges

On March 2, EPA requested public comment on the draft 2020 National Pollutant Discharge Elimination System Multi-Sector General Permit (MSGP). The proposed permit will replace the existing 2015 MSGP on June 4, 2020 and includes numerous technical changes and requests for comment from the affected community. The proposed changes include, but are not limited to: requiring universal benchmark monitoring for pH, TSS, and COD across all sectors; updates to sector-specific benchmark monitoring requirements; significant changes to procedures for addressing benchmark exceedances; an inspection-only option for “low-risk” facilities; a requirement to post notice of permit coverage and changes to the wait period when obtaining permit coverage. Any changes adopted in the issued EPA MSGP will impact state permitting programs during their next renewal cycles. Comments are due May 31.

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

EPA Releases New Interpretation of “Begin Actual Construction” Under NSR

On March 25, EPA released draft guidance titled, “Interpretation of ‘Begin Actual Construction’ Under the New Source Review Preconstruction Permitting Regulations,” which would significantly expand the project construction activities allowed before final major New Source Review (NSR) permit issuance. The current guidance limits these activities to planning, site clearing, grading, etc., and prohibits the construction of anything permanent and associated with the project (e.g., structures and concrete foundations). The new draft guidance narrows the pre-permit prohibition for construction activities, specifically on newly permitted emissions unit(s) prior to permit issuance. Construction of other project items, including foundations, structures and piping is allowed. Comments on the draft guidance are due May 11.

Contact: Brian Petermann, P.E.
(913) 402-4217
brian.petermann@powereng.com

TSCA Chemical Reporting Rules Signed

On March 17, EPA signed two final rules associated with the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR)—one for revisions and one to extend the submission period for CDR from September 30, 2020 until November 30, 2020. The CDR is required every four years and the submission period begins June 1, 2020 for the calendar years 2016 through 2019. Facilities who manufactured (including imported) substances on the Master TSCA Inventory in quantities of 25,000 pounds or more in any year are required to report. Most facilities required to report are from chemical, petroleum and coal product manufacturing and includes manufacturers of byproducts, such as utilities, paper, cement, primary metal and semiconductor, and other electronic component manufacturing. Revisions affect confidentiality claims, processing and use codes, reporting NAICS for the site of manufacture, adding exemptions and clarifying regulatory text.

Contact: Bonnie Blam, CSP
(512) 579-3817
bonnie.blam@powereng.com

EPA Relaxes Refrigerant Management Requirements for HFCs

In March 2020, EPA published a final rule rescinding the part of the Obama Administration’s November 2016 rule on revised refrigerant management requirements that extended leak repair provisions to equipment using substitute refrigerants, including hydrofluorocarbons (HFCs). As a result, equipment containing 50 or more pounds of substitute refrigerants will no longer be required to: 1) repair equipment that leaks above a certain level and conduct verification tests on repairs; 2) periodically inspect equipment for leaks; 3) report chronically leaking equipment to the EPA; 4) retrofit or retire appliances that are not repaired; and 5) maintain related records. EPA did not rescind the applicability of other provisions of the November 2016 rule that had been extended to substitute refrigerants (e.g., technician certification requirements).

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

Fish and Wildlife Service Announces Draft Recovery Plan for Eastern Massasauga

On March 27, the U.S. Fish and Wildlife Service completed the public comment period on a Draft Recovery Plan for the Eastern Massasauga Rattlesnake. The species range is divided into three individual conservation units: Minnesota, Wisconsin, Illinois, Iowa and Missouri; Michigan, Indiana and Ohio; and Pennsylvania, New York and Ontario. The recovery plan is accompanied by a Species Status Assessment and a separate working document called a Recovery Implementation Strategy, which describes specific steps to help protect the species. Species-specific recovery criteria described in the Draft Recovery Plan include increases to the probability of continued persistence in the three conservation units, ensuring an adequate quantity and configuration of lands managed for the species and reducing potential threats from climate change.

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

EPA Revises Supplemental Findings of MATS Rule

On April 16, in response to the U.S. Supreme Court, EPA completed and released a reconsideration of analysis conducted for the Mercury and Air Toxics Standards (MATS) rule which regulates hazardous air pollutant emissions (HAPS) from utilities. In 2015, the Supreme Court concluded that the EPA failed to correctly consider the cost-benefit analysis of the MATS rule. This EPA release concludes that the previous administration included the control of non-HAP pollutants (e.g., particle matter) in the cost-benefit analysis for the rule. EPA has determined that only control of HAPS emissions should be used in the cost-benefit analysis. EPA states that the annual cost of compliance for MATS ($7.4 to $9.6 billion) is much greater than the HAP control benefit of $4 to $6 million, and therefore has determined it is not “appropriate and necessary” to regulate HAPS emitted by utilities. The MATS rule will stay in place despite this conclusion.

Contact: Steven Babler
(913) 402-4215
steven.babler@powereng.com

EPA Revises Proposal to Limit Science Used in Rulemaking

In March 2020, EPA published revisions to a proposed rule, first published in April 2018, that would restrict the type of research that can be used by EPA to draft environmental and public health regulations. The initial proposed version of the rule, “Strengthening Transparency in Regulatory Science,” was intended to limit the promulgation of environmental rules based on findings concluded from research data that was not made publicly available. This included data not publicly available due to protection through privacy laws or confidentiality agreements. The March 2020 revision relaxes restrictions in the April 2018 proposed rule that prevented the promulgation of environmental rules not based on publicly available data, now giving preference to studies for which the underlying data is publicly available. This revision also removes applicability to past regulatory actions.

Contact: Pete Stevenson
(512) 579-3805
peter.stevenson@powereng.com

FERC Announces New Commissioner and Acting General Counsel

On March 31, the Federal Energy Regulatory Commission (FERC) announced James Danly as the new FERC Commissioner. Danly, who has served as the Commission’s General Counsel since September 2017, will serve his Commission term through June 30, 2023. FERC Chairman Neil Chatterjee also named David Morenoff as FERC’s Acting General Counsel. Formerly the Deputy General Counsel under Danly, Morenoff has served in several senior positions within FERC’s Office of the General Counsel.

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

EPA Concludes Risk and Technology Review for Stationary Combustion Turbines

On March 9, EPA published a final action following a required residual risk review for the source category of Stationary Combustion Turbines regulated under National Emission Standards for Hazardous Air Pollutants (NESHAP). EPA determined that the risks from stationary combustion turbines due to emissions of air toxics are acceptable and that no new cost-effective controls under the technology review would achieve further emissions reductions. EPA also eliminated the exemption for periods of startup, shutdown and malfunction (SSM) in 40 CFR Part 63, subpart YYYY and established operational standards in lieu of a numeric emission limit during SSM. New SSM operational standards limit simple-cycle startups to one hour and combined-cycle startups to three hours. EPA added electronic reporting requirements for performance tests and periodic compliance reports. An administrative stay of the standards for new lean premix and diffusion flame gas-fired turbines remains in effect.

Contact: Erik Hendrickson
(512) 579-3808
erik.hendrickson@powereng.com

EPA Proposes Revisions to CCR Liner and Closure Requirements 

On March 3, EPA proposed allowing facilities generating coal combustion residuals (CCR) to request approval to operate CCR surface impoundments with an alternative liner. Additionally, EPA proposes new requirements for annual closure progress reports as well as allowing an additional closure option for CCR units being closed, including those closed by removal of CCR.

Contact: Betty Moore, P.G.
(512) 879-6622
betty.moore@powereng.com

Integrated Iron and Steel, Miscellaneous Organic NESHAP MACT Amendments Pushed Back 

On February 19, the court granted EPA additional time to finalize the Integrated Iron and Steel Manufacturing (Integrated Iron and Steel) and miscellaneous organic chemical manufacturing NESHAP (MON) MACT Risk & Technology Review (RTR) amendments. The deadlines for the final rules are extended from March 13, 2020 to May 5, 2020 for Integrated Iron and Steel and from March 13, 2020 to May 29, 2020 for the MON to allow stakeholders time to review and comment on the proposed RTRs. Regarding Integrated Iron and Steel, EPA proposed a new mercury standard, and solicited comment on unmeasured fugitive and intermittent emissions as well as the cost and effectiveness of potential work practices that could be implemented to control such emissions. For the MON RTR, extensive comments were submitted to EPA concerning regulatory use of the 2016 IRIS unit risk value for ethylene oxide in setting the new standard.

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

STATE NEWS

EPA Approves Revisions to HGB Ozone NAAQS

Approved revisions to the Texas State Implementation Program for the Houston-Galveston-Brazoria (HGB) area became effective on March 16. EPA determined that the area continues to meet the previous ozone National Ambient Air Quality Standards (NAAQS) (1979 1-hour and 1997 8-hour) and meets the criteria for redesignation; therefore, all anti-backsliding obligations were terminated. In addition, the state’s proposal to revise the Failure to Attain Fee, commonly referred to as Section 185 Fees, was incorporated into the rule. The revision removes the requirement for stationary sources in the HGB nonattainment area to calculate and pay a fee based on the annual emission.

Contact: Kevin Ellis
(512) 879-6647
kevin.ellis@powereng.com

PADEP Provides Update on RACT III Rulemaking

On February 13, the Pennsylvania Department of Environmental Protection (PADEP) provided an update on the draft proposed Reasonably Available Control Technology III (RACT III) rulemaking. The RACT III rule would apply to major sources of nitrogen oxides or volatile organic compounds (VOC) that commenced construction on or before August 3, 2018. The PADEP is proposing that case-by-case determinations made for RACT II would satisfy the case-by-case requirements for RACT III, except in instances where RACT III presumptive requirements are more restrictive. The PADEP is proposing other, more restrictive presumptive requirements for combustion units, turbines and engines; and for certain industry-specific sources. For oil and gas facilities, the rule proposes that fugitive sources of VOC be aggregated with an associated stationary source to determine applicability. The PADEP is also proposing notification requirements for all RACT III facilities within six months and compliance with one year after final rule publication. The PADEP must implement RACT III by January 1, 2023.

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

NYSDEC Proposes Updates to Air Dispersion Modeling Guidelines

Earlier this year, the New York State Department of Environmental Conservation (NYSDEC) published proposed updates to Policy DAR-10: NYSDEC Guidelines on Dispersion Modeling Procedures for Air Quality Impact Analysis. Policy DAR-10, last updated in 2006, provides specific requirements and guidelines for conducting dispersion modeling analyses in New York State, and summarizes many of the approved modeling methodologies outlined in EPA’s Guideline on Air Quality Models (GAQM), also known as Appendix W to 40 CFR Part 51. Policy DAR-10 was reorganized to incorporate the latest guidance and compliance methodologies from EPA’s GAQM and contains specific sections on issues such as 1-hour nitrogen dioxide, 1-hour sulfur dioxide, PM2.5 modeling and other state-specific modeling issues. The policy is expected to be finalized later in 2020.

Contact: Tom Rolfson, P.E.
(207) 869-1418
tom.rolfson@powereng.com

Virginia Moves to Join RGGI

In February 2020, Virginia lawmakers approved legislation to make Virginia a full participant in the Regional Greenhouse Gas Initiative (RGGI) starting in 2021. The RGGI is a carbon dioxide cap-and-trade program with 10 member states in the Mid-Atlantic and New England regions. Governor Ralph Northam is expected to sign the legislation in the coming months. Under the legislation, about half the revenue will go towards assisting Virginia localities affected by recurrent flooding and sea level rise, while the other half will go to a state-administered account to support energy efficiency programs for low-income residents.

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

PADEP Proposes Change to Land Recycling Program Requirements

On February 15, PADEP published proposed revisions to Land Recycling Program regulations. The proposed regulations include new standards for three per- and polyfluoroalkyl substances (PFAS) and revisions to existing soil and groundwater standards (a majority will be lowered). Other proposed revisions relate to public involvement plans, practical quantitation limits, requirements for professional seals and report submittal requirements. Separately, PADEP is releasing a draft guidance document for public comment in spring 2020 regarding the use of caps as engineering controls and expects to update the program’s technical guidance manual in 2021.

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