Curious about Pennsylvania Air Quality – PADEP RACT III Rulemaking Process Update

It has been about a year in the regulatory rulemaking process since ALL4’s previous article on Pennsylvania’s plan for the third iteration of their Reasonably Available Control Technology (RACT) rule (i.e., the RACT III Rule).  An evaluation of RACT is required for emissions units that emit NO_X and/or VOC above certain thresholds, are operated at major sources of those ozone precursor pollutants, and are located within specific geographic areas that have not attained the ozone National Ambient Air Quality Standard (NAAQS) (i.e., nonattainment areas).  In this particular case, the RACT III Rule is the result of the 2015 revision to the Ozone NAAQS and Pennsylvania’s inclusion in the northeast Ozone Transport Region (OTR).  Pennsylvania is in the northeast OTR, a nonattainment area with regard to the 2015 ozone NAAQS, thus a state requirement to address RACT is necessary, and voila, we have the Pennsylvania RACT III Rule. An update on where things stand is provided below:

• PADEP had a draft proposed RACT III Rule available for the May 2020 air quality technical advisory committee (AQTAC) meeting.
• AQTAC voted to advance the proposed rulemaking to the environmental quality board (EQB) for review and approval.
• The Third Circuit Court of Appeals issued its Opinion in Sierra Club v. U.S. EPA on August 27, 2020. Sierra Club challenged U.S. EPA’s approval of Pennsylvania’s 2016 RACT II regulation. The Court vacated three aspects pertaining to coal-fired power plants with selective catalytic reduction (SCR) controls and remanded the rule to the agency for revision.
• The rulemaking process was paused temporarily and PADEP will need to consider the Third Circuit Court of Appeals’ decision and its impact on the RACT III proposed rulemaking before moving forward.
• A revised proposed RACT III rulemaking is targeted for submission to the EQB in the second quarter of 2021.

Based on the latest draft version of the RACT III Rule, Pennsylvania’s approach is very similar to RACT II.  We’ll have to wait for the final version of the rule to understand the nuanced differences.  However, there are a few noteworthy items in the draft RACT III Rule.  The draft RACT III Rule contains presumptive requirements (e.g., emissions limits and work practice standards) for some affected sources, as well as an alternative case-by-case mechanism in certain situations.  The proposed compliance date is January 1, 2023, which would allow an 18-month compliance timeline if the rule is finalized by the end of the second quarter 2021.

Stay tuned for additional updates as the RACT III rulemaking process unfolds.  If you have any questions or wish to discuss what RACT in Pennsylvania means for your facility, please reach out to me at nleone@all4inc.com or 610-933-5246 x121.

RACT III Resources

New Particulate Matter Emissions Requirements in New York State: Could They Affect Your Facility?

Effective February 25, 2021, the New York State Department of Environmental Conservation (NYSDEC) finalized proposed revisions to the particulate matter (PM) emissions limits in Title 6, Part 227-1 of the New York Codes, Rules, and Regulations (6 NYCRR 227-1) for stationary combustion installations.  The revisions are intended to help maintain the National Ambient Air Quality Standards (NAAQS) for PM.  However, the rule’s requirements could trigger significant operating, and potentially, capital costs.

KEY CHANGES TO THE RULE

1. Reduced PM Emissions Limit. The PM limits in the prior version of the rule varied by the heat input of the stationary combustion installation.  For example, the PM limit for a biomass boiler with a rated heat input of 30 million British Thermal Units of heat input per hour (MMBtu/hr) is 0.42 pounds of PM per MMBtu of heat input (lb/MMBtu) and the PM limit for a biomass boiler rated at 10 MMBtu/hr was 0.60 lb/MMBtu of heat input.  The new rule revised these heat input-based emissions limits downward to 0.10 lb/MMBtu of heat input for stationary combustion installations with a maximum heat input capacity equal to or greater than:
   • 1 MMBtu/hr firing any amount of solid fuel (such as biomass); or
   • 50 MMBtu/hr firing oil or oil in combination with other liquid or gaseous fuels.

2. There is an Exemption. The rule does not apply if a more stringent Federal emissions limit applies.  This is regardless of whether the stationary combustion installation is located at a Major Source or Area Source of Hazardous Air Pollutant (HAP) emissions.  Consider a new biomass boiler having a heat input equal to or greater than 10 MMBtu/hr and less than 30 MMBtu/hr, located at an Area Source of HAP emissions, and subject to the requirements for a new boiler 40 CFR Part 63, Subpart JJJJJJ (National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers Area Sources).  The new boiler would be required by Subpart JJJJJJ to meet a filterable PM limit of 0.07 lb/MMBtu and would therefore have to meet the lower and more stringent, Federal limit instead of the state limit.

3. Performance Testing. Facilities must perform an initial compliance test to measure filterable PM via U.S. EPA Test Method 5 within six months of commencing operation of a new affected stationary combustion installation and within four years of the promulgation date of the rule change (February 25, 2021) for an existing affected stationary combustion installation.

4. Monitor Visible Emissions. Facilities must demonstrate compliance with opacity standards using a Continuous Opacity Monitoring System (COMS), U.S. EPA Test Method 9 visible emissions observations, or “testing with any other credible evidence.”  The rule does not further define “testing with any other credible evidence,” but according to personal communication between ALL4 and NYSDEC, it can be addressed with NYSDEC on a case-by-case basis.

5. Annual Tune-Up. All Facilities must perform a tune-up annually per manufacturer’s recommended procedure or per an approved specialist on their affected stationary combustion installations. 

6. Aggregation of Combustion Sources. Facilities must aggregate the heat input of stationary combustion installations that share the same stack unless there is an air permit requirement prohibiting simultaneous operation of the stationary combustion installations.  For example, the PM limit of 0.10 lb/MMBtu would apply if a facility was currently operating or planning to install and operate two identical biomass boilers rated at 0.5 MMBtu/hour (heat input) each that operated simultaneously and shared the same stack.

WHY IS THIS IMPORTANT?

While the proposed revisions will presumably reduce PM emissions released into the atmosphere, they could trigger significant additional compliance costs for existing and proposed stationary combustion installations.  For example, existing biomass boilers equipped with cyclone technology for PM control may have to install more effective PM control equipment such as an Electrostatic Precipitator (ESP) to meet the proposed emissions limit of 0.10 lb/MMBtu.  ESP capital costs could range from $150,000 to $350,000 for the institutional and commercial facilities in New York, and the rule does not include provisions for evaluating the economic feasibility of pollution control equipment.  In addition, facilities will incur the cost of performance testing which could range from $5,000 to $10,000 for a Method 5 test for one stationary combustion installation.

WHAT SHOULD I DO?

There is no better time than the present to start planning!  Here are a few things you can do:

1. Determine if your stationary combustion installation is exempt from the rule.
2. If your existing or planned stationary combustion installation is not exempt, evaluate whether it will meet the PM emissions limit without additional pollution control such as an ESP.
3. If your existing or planned stationary combustion installation will not meet the emissions limit without a pollution control device, obtain quotes from pollution control equipment vendors and begin evaluating the cost and technical feasibility of installing pollution control equipment.
4. Obtain vendor quotes for PM emissions testing, emissions monitoring, and tune-ups. Consider sponsoring in-house training for monitoring and tune-ups (oftentimes, this work does not need to be outsourced).

If you have any questions about Part 227-1 changes, please reach out to John Hinckley at jhinckley@all4inc.com or by phone at (802) 359-7294.

What’s New with Vermont Air Emissions Registration?

Air Emissions Registration (Registration) is a process where owners or operators of a facility that is a source of ambient air pollutant emissions (air emissions) will estimate its calendar year air emissions and report them to their respective air pollution control agency.  Registration is regulated in Vermont by Subchapter VIII of the Vermont Air Pollution Control Regulations (APCR).  Vermont facility owners or operators are required to estimate, register, and pay a fee for their air emissions with the Vermont Air Quality & Climate Division (AQCD) annually.

The AQCD launched an online Registration platform earlier this year and is requiring facilities to register their air emissions through the platform.  Historically, Registrations were required to be submitted by February 1^st, but this year an extension was granted given the rollout of the online platform; therefore, facility owners or operators are required to register their 2020 air emissions by April 2^nd and submit payment by May 15^th.

WHO NEEDS TO REGISTER EMISSIONS?

If your facility has Construction or Operating Permits for operations that produce air emissions issued by the AQCD, you must register.  If you are currently registering, you should have received email notification of the new registration procedure.  If you suspect your facility is required to register and you did not receive an email notification, you can email the AQCD at ANR.AirRegistration@vermont.gov.

There are two Registration categories.  If your facility emits less than five tons per calendar year of air emissions, you must complete a “quick registration” and if your facility emits equal to or more than five tons of air emissions, you must complete a “full registration.”

According to 5-802(1) of the APCR, air emissions include “any or all air contaminants,” and an “air contaminant” includes “dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances, or any combination thereof.”  More specifically, an air contaminant would include the U.S. EPA Criteria Pollutants and Hazardous Air Pollutants (HAP), as well as Vermont Hazardous Air Contaminants (HAC).  Examples of commonly estimated air emissions are particulate matter (PM), nitrogen oxides (NOx), sulfur dioxide (SO₂), and carbon monoxide (CO).

HOW DO I GET STARTED?

You can start the Registration process at this web address: https://dec.vermont.gov/air-quality/point-source-registration.  From this location, you can access web pages to create an online account, fill out the forms that are required for your facility, and submit online payment.

If you would like to learn more about how Registration fees are calculated, you can access the Registration fee schedule from this web address: http://dec.vermont.gov/air-quality/permits/permit-fees.  The AQCD is not proposing changes to its fee structure at this time.

If you have any questions about the air emissions Registration changes, please reach out to John Hinckley at jhinckley@all4inc.com or by phone at (802) 359 -7294.

State-specific Considerations for SPCC Plans in Virginia

This blog is part of a series that will cover key state-specific requirements for petroleum containing aboveground storage tanks (ASTs) with respect to Spill Prevention, Control, and Countermeasure (SPCC) compliance with 40 CFR Part 112.7(j).

In this edition, I will walk through key requirements in Virginia (VA).

The Virginia Department of Environmental Quality (VADEQ) has implemented aboveground storage tank (AST) regulations at 9VAC25-91.  An AST containing oil is VADEQ-regulated if it has a capacity of greater than 660 gallons.  However, there are several exclusions from this regulation provided in 9VAC25-91-30.  Three significant exclusions from the AST regulation include:

• ASTs that form an integral part of the equipment or machinery and where the contents of the AST are solely used by the attached equipment or machinery (e.g., fuel belly tank affixed to a generator).
• Oil-filled operational equipment (OFOE) such as hydraulic systems and transformers.
• ASTs used to store nonpetroleum hydrocarbon-based animal and vegetable oils.

Further applicability of the VADEQ AST regulation is dependent on the aggregate aboveground storage capacity at the facility.  Facilities with at least one regulated AST, but have less than 25,000 gallons of regulated aboveground storage capacity are only required to meet registration and closure requirements and not some of the more stringent requirements that would need to be discussed for compliance with 40 CFR Part 112.7(j).

What if my facility has more than 25,000 Gallons of VADEQ-Regulated Storage?

If your facility has greater than 25,000 gallons of regulated aboveground storage, an oil discharge contingency plan (ODCP) must be prepared and submitted to VADEQ for approval prior to placing the regulated tanks into service.  Pollution prevention requirements (PPR) also come into play which require additional recordkeeping, testing, inspection, and training to be completed, beyond what an SPCC plan requires.  Your facility can choose whether to document procedures to demonstrate compliance with the PPR regulations in either your ODCP or SPCC plan.  Further requirements are triggered for facilities containing one million gallons or more of VADEQ-regulated storage under the ODCP and PPR regulations.

Requirements for an ODCP

An ODCP is similar to a Federal Facility Response Plan (FRP), but instead implemented at the state level (Virginia) where facilities must demonstrate how a worst-case discharge of oil would be handled.  An ODCP must be submitted to and approved by VADEQ prior to placing regulated tanks into service.  VADEQ requires that an ODCP be renewed at least 90 days prior to expiration.  If a significant change occurs (similar to a technical amendment in an SPCC plan), the ODCP must be amended and submitted to VADEQ within 30 days of the change (note this is different from the six month window for implementing a technical amendment into an SPCC plan).

Facilities may choose to combine an ODCP with an SPCC plan as long as the applicable ODCP requirements are presented in a cross-reference table.  However, it is often preferable to maintain separate ODCP and SPCC plans because an SPCC plan could contain additional storage containers that are not regulated by VADEQ.

A groundwater characterization study (GCS) and GCS well monitoring and reporting are required for facilities containing one million gallons or greater of VADEQ-regulated aboveground storage.  Facilities with a VADEQ-regulated aboveground storage capacity of one million gallons or greater may incorporate an ODCP into their FRP.

Requirements Under PPR Regulations

Some of the key requirements for regulated ASTs at facilities with 25,000 gallons or more of VADEQ-regulated storage include:

• Conducting initial pressure testing on piping and at five-year intervals;
• Annual level gauge calibration;
• Establishing a training program;
• Visual daily and weekly inspections;
• Secondary containment certification by a licensed professional engineer (PE) in the Commonwealth of Virginia prior to tanks being placed into service and every 10 years thereafter (Note: Virginia does not have a quantitative permeability requirement like several other states); and
• Inventory control
  • Maintaining a record of incoming and outgoing volumes.
  • Gauging the tank level each day of normal operation, but no less frequently than once of 14 days.

Similar to the ODCP regulation, additional requirements are triggered under the PPR regulations once the one-million-gallon regulated storage capacity threshold is reached, which include the following formal inspections:

• Initial external and internal formal inspections in accordance with American Petroleum Institute (API) Standard 653 or Steel Tank Institute (STI) Standard SP001 within five years of installation of a new AST;
• External formal inspections every five years after the initial formal external inspection was completed; and
• Internal formal inspections every ten years after the initial formal internal inspection was completed.

VADEQ may require a formal internal inspection or on a more frequent basis for a regulated AST, at its discretion.  However, ASTs with a capacity of less than 12,000 gallons are not subject to the initial or recurring internal formal inspections unless it is deemed necessary by VADEQ.

Stay tuned for upcoming articles that will continue to cover additional AST requirements in states across the country.  If you have questions on AST compliance in Virginia or another state, please feel free to reach out to me at sbharucha@all4inc.com or 571-392-2592 x505.

State-Specific Considerations for SPCC Plans – NY and NJ

This blog is part of a series that will cover key state-specific requirements for petroleum containing aboveground storage tanks (ASTs) with respect to Spill Prevention, Control, and Countermeasure (SPCC) compliance with 40 CFR Part 112.7(j).

In this edition, I will walk through key requirements in New York (NY) and New Jersey (NJ).

New York

The New York State Department of Environmental Conservation (NYSDEC) has implemented Petroleum Bulk Storage (PBS) regulations at 6 NYCRR Part 613.  AST requirements are found at 6 NYCRR Part 613 Subpart 613-4 and apply to facilities with a storage capacity of more than 1,100 gallons of petroleum.  Facilities with 400,000 gallons or more of oil storage capacity are subject to the Major Oil Storage Facility (MOSF) program at 6 NYCRR Parts 610 and 611 and are also required to comply with PBS regulations along with a more robust registration/certification requirement.

Requirements Under PBS Regulations

Some of the key requirements applicable to regulated ASTs include:

• Conducting a ten-year inspection in accordance with American Petroleum Institute (API) Standard 653 or Steel Tank Institute (STI) SP001. It is important to note that this inspection frequency may be different from what the API or STI standards otherwise present for integrity testing to comply with the SPCC requirement under 40 CFR Part 112.8(c)(6).  Alternatively, facilities can opt to perform a tightness test and submit a copy of the report to NYSDEC.
• Having a level gauge, high-level warning alarm, high level liquid pump cut-off controller, or equivalent overfill prevention equipment.
• Installing secondary containment with a permeability rate as low as 1×10^-6 cm/sec (reference to water), depending on the viscosity of the product contained and capability of being monitored between the tank bottom and containment structure (e.g., interstitial space of a double-walled tank).

Other aspects covered in the PBS regulation include: meeting common industry codes of practice depending on when the tank and piping were constructed, conducting tightness and leak detection testing for underground piping, and inspecting cathodic protection annually if installed.  NYSDEC has published its PBS inspection form that is applicable to aboveground and underground storage tank systems.

Note: Nassau, Rockland, Suffolk, Westchester, and Cortland Counties have their own PBS programs and the requirements may be more stringent than the NYSDEC program.

Requirements under MOSF Regulations

Facilities subject to MOSF regulations (e.g., refineries and petroleum terminals) must apply for a letter of certification from NYSDEC, which includes submitting an application containing a spill prevention and containment plan that incorporates all SPCC and Coast Guard plan requirements.  Once an operating license is issued, the facility is subject to additional recordkeeping and reporting requirements such as monitoring daily throughput and storage capacity.

Key requirements under the MOSF Regulations include:

• Additional recordkeeping and reporting requirements on throughput of petroleum.
• Conducting a secondary containment integrity inspection at least once every five years under supervision of and certified by a PE licensed in NY. This inspection consists of a visual inspection of secondary containment, sampling, and report submittal to NYSDEC.
• Meeting a containment permeability limit as low as 1×10^-7 cm/sec depending on the product stored.

Note: NYSDEC has separately implemented Chemical Bulk Storage (CBS) regulations at 6 NYCCR Parts 595-599, which apply to facilities storing hazardous substances.  However, petroleum storage regulated under the PBS or MOSF programs is not regulated under the CBS regulations.

New Jersey

The New Jersey Department of Environmental Protection (NJDEP) regulates storage tanks at N.J.A.C. 7:1E, the Discharges of Petroleum and Other Hazardous Substances Rules.  Facilities with a total storage capacity of 20,000 gallons or more of hazardous substances other than petroleum products or 200,000 gallons or more of all hazardous substances, including petroleum products, are major facilities.  Note that vessels used to transfer hazardous substances are also considered major facilities, however, the requirements outlined in this blog focus on stationary facilities.  Major facilities must prepare and submit Discharge Prevention, Containment and Countermeasure (DPCC) and Discharge Cleanup and Removal (DCR) plans to NJDEP 180 days prior to commencing operations.  Since both plans are required for major facilities, the combined plan is referred to as a DPCC/DCR plan, or Discharge Cleanup and Removal Plan.  Facilities that are not major facilities are also subject to N.J.A.C. 7:1E.  However, since many of these requirements only apply to major facilities, facilities that are not major facilities are subject to select provisions of N.J.A.C. 7:1E (e.g., discharge reporting).

DPCC/DCR Plans

A DPCC/DCR plan is similar to a Federal SPCC plan in its requirements, with some key additional requirements being:

• Required visual inspections on a daily, weekly, monthly, and quarterly frequency.
• ASTs greater than 2,000 gallons must have redundant overfill protection systems (e.g., a high level visual or audible alarm and one of the following: a high liquid level pump cutoff device with a separate level detector from the visual or audible alarm, direct communication between the tank gauger and pumping station, or a fast response system for determining liquid level resulting in rapid shutdown of pumping).
• Annual simulated emergency response drills must be conducted each year.
• Secondary containment must meet a maximum permeability of 1×10^-7 cm/sec.
• Obtaining and maintaining a current agreement with the local emergency planning committee (LEPC).
• The DPCC/DCR plan requires a NJ Professional Engineer certification.

Stay tuned for upcoming articles that will continue to cover additional state-specific SPCC requirements in states across the country.  If you have any questions on the states covered in this edition or any other state-specific AST regulations and their impacts on your facility’s spill prevention planning efforts, please feel free to reach out to Sahil Bharucha at sbharucha@all4inc.com or 571-392-2592 x505.

South Carolina Title V Permit Streamlining

One section in your next Title V permit renewal application could substantially reduce the burden of demonstrating compliance with your permit and save your company thousands of dollars in stack testing costs and hundreds of man hours in compliance demonstrations.   When your five-year Title V permit renewal comes due, careful consideration should be given to including a section for “Requested Permit Streamlining.”

A facility may propose to streamline more than one applicable requirement for the same pollutant at a single emissions unit into a single permit condition.  The overall objective of streamlining is to establish the most stringent permit limit that will assure compliance with all related applicable requirements for an emission unit.  All of the applicable requirements remain in effect but compliance with each of them is assured through compliance with the over-riding Title V permit streamlined condition.  The monitoring, recordkeeping, and reporting requirements associated with the most stringent emissions requirement are presumed appropriate for use with the streamlined emissions limit.  Streamlining does not have to wait for the next Title V renewal and may also be incorporated via the Title V significant modification process.

The United States Environmental Protection Agency (U.S. EPA) and the South Carolina Department of Health and Environmental Control (SC DHEC) provide guidance to assist Title V permit holders with the streamlining process.[1]  In South Carolina, facilities with emissions sources subject to Boiler MACT can choose to request several SC DHEC evaluated and pre-approved streamlining options for South Carolina Regulation 61-62.5, Standard No. 1 including streamlining of:  particulate matter (PM) and opacity limits, PM testing, monitoring, reporting, and recordkeeping requirements.  In lieu of biennial PM testing under SC Regulation 61-62.5 Standard No. 1, PM source testing for Standard No. 1 maybe conducted in accordance with Boiler MACT annual/triennial testing requirements.  This could save in stack test costs alone around $6,500, an average cost for a Method 5 source test.  For emissions units where Part 64 Compliance Assurance Monitoring (CAM) would be applicable for the subsumed requirements the Department has determined the monitoring required by the Boiler MACT is sufficient to show compliance and Part 64 can be subsumed and considered exempt pursuant to 40 CFR 64.2(b)(1).  Streamlining also simplifies your annual compliance certification because you will be performing a line-by-line compliance certification for fewer permit conditions.

DHEC Title V Streamlining Guidance

Streamlining Multiple Applicable Requirements on the same Emissions Unit

Streamlining PM Source Testing for Requirements Contained in Standard No. 1 and 40 CFR 63, Subpart DDDDD

One size doesn’t fit all and streamlining may not be for every Title V permit or every set of requirements (especially when the requirements are expressed in different units or forms).  A violation of a streamlined emissions limit or operating limit would be a presumed violation of both the streamlined requirement and the subsumed emissions or operating limits.  Per U.S. EPA guidance, streamlined permit terms should be requested to be covered by a permit shield, providing certainty that the source will be considered in compliance with all of the applicable requirements subsumed under the streamlined requirement.

If you have any questions or would like to discuss opportunities to streamline the air permitting and compliance burden at your facility, please reach out to Jenny Brown at 1-678-293-9432 ext. 212 or jbrown@all4inc.com.

CAO Reporting Year 2020 TAC Emissions Inventory Report

The Cleaner Air Oregon (CAO) health-based air toxics regulatory program includes a provision [OAR 340-245-0040(2)] for all facilities with a Standard or Simple air contamination discharge program (ACDP) permit or a Title V air permit in Oregon to submit an updated toxic air contaminant (TAC) emissions inventory once every three years.  Reporting year 2020 (submitted in calendar year 2021) will be the first TAC emissions inventory required since the CAO rule was promulgated in 2018.  The reporting year also corresponds with U.S. EPA’s National Emissions Inventory (NEI) reporting year.  Most facilities received notice from the Oregon Department of Environmental Quality (DEQ) of the requirement to submit a TAC emissions inventory for reporting year 2020 in April 2020, a year ahead of the submission deadline of April 1, 2021.  However, in November 2020, Oregon DEQ extended the submission deadline until September 1, 2021 due to the widespread effects of Covid-19.

What exactly is this required submission? 

The TAC emissions inventory is a separate reporting requirement than the emissions inventory submitted for the CAO risk assessment which is the first step in the CAO risk assessment process after you are “called-in” to the program.  The 2020 TAC emissions inventory will be very similar to the emissions inventory required as part of the CAO risk assessment.  Oregon DEQ plans to provide an Excel-based reporting form in Spring of 2021 and has indicated that it will be very similar to the Excel-based reporting form for the CAO emissions inventory (AQ405CAO).

So, what should I be doing now if I want to be proactive?

Since the 2020 TAC emissions inventory will be very similar and can be used with very little updates to meet the first requirement once your facility is “called-in” to the CAO regulatory program, ALL4 recommends that facilities complete a Level I CAO risk assessment utilizing the TAC emissions calculated for the 2020 emissions inventory report.  The Level 1 CAO risk assessment is the most conservative (and simplest) option for satisfying the requirements of the CAO regulatory program.  The Level I CAO risk assessment utilizes the emissions rates along with stack height and distance to property line to characterize health risks for comparison to the CAO risk action levels (RAL).

And why exactly is that a good idea?

By conducting a Level 1 CAO risk assessment, now you can identify if any refinements need to be made to your 2020 TAC emissions inventory so that its ready to go once you’re “called-in” to the CAO regulatory program.  In addition, conducting a Level 1 CAO risk assessment will determine if your facility will need to conduct a more involved Level 2 or Level 3 CAO risk assessment, which involve the use of air dispersion modeling.  Lastly, refining your TAC emissions inventory now will allow you to do it at your own pace.  Once your facility is “called-in” to the CAO regulatory program, you will have 90 days to submit your emissions inventory (150 days if you’re conducting source testing).

If you need assistance preparing your 2020 TAC emissions inventory or would like to proactively conduct a Level I CAO risk assessment with the TAC emissions inventory you have prepared, please reach out to Dan Dix at ddix@all4inc.com or 610.422.1118.

CFATS Update Blog

We are seeing some activity from the Department of Homeland Security (DHS) related to the Chemical Facility Anti-Terrorism Standards (CFATS) program and wanted to provide an update to our 4 the Record readers!  In case you missed it, check out our previous blogs on the personnel surety process, some updates from last summer and on how to prepare for your CFATS compliance inspections.  In this issue, we’ll discuss the DHS Chemical Security Seminars from December 2020 (these seminars replaced the in-person Chemical Security Summit), Personnel Surety Program (PSP) Rollout to Tier 3 and 4 facilities, a January 2021 Federal Register Notice, the recent National Terrorism Advisory System (NTAS) Bulletin, and an update on COVID impacts.

2020 Chemical Security Seminars

In December, DHS Cybersecurity and Infrastructure Security Agency (CISA) hosted three virtual Chemical Security Seminars in lieu of the in-person Chemical Security Summit, due to COVID.  There were two seminar sessions specific to CFATS: “Risk-Based Performance Standards (RBPS) Deep Dive and Best Practices,” and “PSP Demo and Lessons Learned.”

The RBPS Deep Dive and Best Practices session provided:

• An overview of all 18 RBPS with tier-specific expectations;
• Tips for editing Site Security Plans (SSPs);
• Expectations for outreach to local law enforcement and participation in Local Emergency Planning Committee (LEPC);
• A review of annual audit requirements; and
• Incident investigation and reporting procedures.

The PSP Demo and Lessons Learned session provided:

• A video demonstration of the PSP within the CSAT portal and other PSP resources;
• Clarification that facilities may list contractors as either “facility personnel” or “visitors” for the purposes of PSP (reminder – “facility personnel” cannot be “escorted” and must be screened prior to accessing the COI);
• Options for complying with RBPS 12.4, Screening for Terrorist Ties; and
• A description of the PSP roles available within the CSAT portal.

Complete presentations from both CFATS-related sessions and the other sessions from the seminars can be found here.

PSP Rollout to Tier 3 and 4 Facilities

Last year, we issued a blog article on the PSP, the system within the CSAT portal used for identifying individuals with terrorist ties, and its rollout to Tier 3 and 4 facilities.  DHS is ahead of their schedule to roll out PSP to all high-risk facilities by mid-year 2022.  If your facility is Tier 3 or 4 and has not yet been required to implement PSP, here are some things to be aware of:

• Any future update to your SSP or Alternative Security Plan (ASP) will trigger PSP implementation;
• Otherwise, once notified by DHS, facilities have 30 days to submit an updated SSP or ASP including details on how PSP will be implemented; and
• Once the updated SSP or ASP is approved, the facility must implement PSP within 60 days.

A few reminders for ongoing compliance for facilities that have already implemented PSP:

• Any new personnel or contracted employee must have their information submitted to DHS via the PSP before being granted access to CFATS-restricted areas;
• If specified in the SSP or ASP, DHS must also be notified whenever an employee’s access is removed (i.e. in the event of an employee leaving the facility or moving to a different area of the facility) by removing the individual from the list of affected individuals in the PSP within the CSAT portal; and
• RBPS 12.5 requires an annual personnel surety audit to confirm that all individuals who have access to the CFATS-restricted area have undergone all required background checks.

January Federal Register Notice

On January 6, CISA published a notice in the Federal Register requesting public comment on an advance notice of proposed rulemaking (ANPRM) to consider removal of 49 Class 1, Division 1.1 explosive chemicals from the list of regulated chemicals of interest (COI), codified at 6 CFR Part 27, Appendix A.  The public comment period ends March 8, 2021.  The chemicals proposed for removal are already regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

The chemicals proposed for removal from Appendix A are currently listed as “Release-explosive” and/or “Theft/Diversion-Explosives/Improvised Explosive Device Precursors.”  CISA estimates that these chemicals are present above threshold quantities at 85 facilities, 24 of which would no longer be regulated as high-risk under the CFATS program following removal of these chemicals.

The notice references comments received as far back as 2014 and 2015 regarding the overlap in ATF’s regulations and CFATS, as well as comments received in response to the retrospective economic analysis of the CFATS program that was published last summer.  This is the first proposed update to Appendix A since it was first issued in 2007, and a promising sign that DHS is looking to reduce regulatory overlap and remove chemicals from Appendix A where protections may already be in place under a different program.

NTAS Bulletin

On January 27, NTAS issued a bulletin due to a heightened threat environment across the country related to issues including the election, COVID restrictions, and police use of force.  The bulletin is not an elevated threat alert and does not require facilities to enact their heightened security or elevated alert procedures.  The full bulletin can be found here.  The bulletin is currently set to expire on April 30, 2021 at 1:00 PM.

COVID Update

We are beginning to see DHS resume scheduling in-person compliance inspections.  We expect DHS to prioritize facilities whose inspections may have been delayed due to COVID, facilities who have not yet had their initial compliance inspection, and Tier 1 and 2 facilities.  DHS targets visiting Tier 1 and 2 facilities every 12 months and Tier 3 and 4 facilities every 12-18 months.

If you have any questions regarding CFATS or any of the updates listed above, please contact me at lsmith@all4inc.com or at (770)999-0269.  ALL4 has assisted clients with completing top-screens, developing SSPs/ASPs, implementation of planned measures, compliance documentation, annual self-audits, and compliance inspections.  Look for more CFATS content from ALL4!