State-Specific Considerations for SPCC Plans in Pennsylvania

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 Pennsylvania (PA).

The Pennsylvania Department of Environmental Protection (PADEP) has implemented oil pollution and tank management regulations at 25 Pa. Code Chapter 245 (Administration of the Storage Tank and Spill Prevention Program).  These regulations have been implemented as a result of the Pa. Storage Tank and Spill Prevention Act and Pa. Clean Streams Law.  Preparedness, Prevention, and Contingency (PPC) regulations have also been implemented as a result of the National Pollutant Discharge Elimination System (NPDES) Stormwater Permitting Program (40 CFR Part 125, Subpart K), Pa. Clean Streams Law, and Pa. Solid Waste Management Act.  Please note that the regulations discussed in this blog may also apply to storage tanks containing hazardous substances; however, the focus of this blog will be on requirements for oil storage containers.

Requirements Under 25 Pa. Code Chapter 245

Tank size and aggregated regulated AST capacity play a key role in the applicability of 25 Pa. Code Chapter 245.  In general, ASTs with a capacity greater than 250 gallons are regulated, although there are exclusions for certain oil containers (e.g., heating oil tanks and oil-filled operational equipment).

Large Aboveground Storage Tanks and Aboveground Storage Tank Facilities

Facilities with a large aboveground storage tank system (i.e., a single aboveground storage tank with a capacity of greater than 21,000 gallons) or large aboveground storage tank facilities (i.e., have an aggregate regulated aboveground capacity of more than 21,000 gallons) are required to prepare a Spill Prevention Response (SPR) plan.

The required elements of an SPR plan are similar to U.S. EPA’s requirements for SPCC plans; however, PADEP does have some more stringent requirements for what must be included in an SPR plan.  For example, one requirement of SPR plans are downstream notification requirements.  Facilities subject to these requirements must compile a downstream notification list that includes all municipalities and surface water users within 20 downstream miles of the facility.  Each facility on the list must be provided an annual written notification detailing the inventory (i.e., type and quantity) of materials stored at the facility that has prepared an SPR plan.  In the event of a spill that reaches or threatens to reach water, facilities on the list must be notified within 2 hours of the release.

SPR plans are required to be submitted to PADEP and revisions such as removing or adding storage tanks must be completed and the plan resubmitted to PADEP within 180 days of the occurrence.  Further PADEP guidance on preparing SPR plans can be found in its Guidelines for the Development and Implementation of Environmental Emergency Response Plans document.

Other Requirements for Large ASTs

Some additional notable requirements for regulated large ASTs and facilities include:

  • Conducting visual inspections every 72 hours and each month;
  • Equipping new storage tanks with a level gauge and high level alarm. Note that this is more restrictive than the options presented under 40 CFR §112.8(c)(8) for bulk storage containers;
  • Meeting an emergency containment permeability of less than 10-6 cm/s and contain a release for at least 72 hours. Or if the storage tank was installed on or before October 11, 1997 and does not meet the permeability requirement, a P.E. must certify that the emergency containment, tank monitoring, and response plan is capable of detecting and recovering a release; and
  • Conducting third party in service inspections:
    • Newly installed AST systems or major modifications to AST systems must be initially inspected by a PADEP-certified inspector.
    • Following the installation inspection, in service inspections for most oil-containing ASTs are required to be completed at least once every 5 years by a PADEP-certified inspector.

The requirements discussed above may vary depending on the substance stored or type of AST.  For example, vaulted ASTs have more stringent and specific requirements, such as needing to be enclosed by reinforced concrete at least 6 inches thick and meeting a permeability of less than 10-7 cm/s, with initial in-service inspections conducted within 6 and 12 months of installation and subsequent inspections at least once every three years after.

Alternate Requirements for Small ASTs

Regulated facilities with small ASTs (i.e., capacity less than 21,000 gallons) can opt to comply with alternate requirements under 25 Pa. Code Chapter 245.  Two of the key requirements for small ASTs are:

  • Being sufficiently impermeable to contain a release for at least 72 hours. Although this requirement is similar to the requirement for large ASTs, there is no quantitative permeability requirement for emergency containment.  PADEP notes that if a double-walled tank is used to satisfy this requirement, it must include permanently installed spill prevention equipment or containment at the fill point, an overfill prevention device, block valves on product lines, and a solenoid valve or antisiphon device, if applicable; and
  • Conducting in-service inspections at least every five years (only applicable for oil containing ASTs with a capacity greater than 5,000 gallons).

Similar to the requirements for large ASTs, requirements for small ASTs may also vary based on your facility’s specific tank.

PPC Plans

The requirements discussed so far in this blog have been based on 25 Pa. Code Chapter 245.  However, another notable regulatory requirement in PA is PPC plans, especially for facilities that are not required to prepare an SPR plan.  PPC plans are required for certain facilities in PA, including those that are required to obtain National Pollutant Discharge Elimination System (NPDES) permits, waste disposal facilities, and some hazardous waste generators.  The elements of PPC plans are generally the same as SPR plans, except PPC plans are not required to address the downstream notification requirement.

SPCC, SPR, and PPC – What do I do for my Facility?

Since the only major difference in requirements between PPC and SPR plans is the downstream notification requirement for SPR plans, PADEP allows for facilities that already maintain a PPC plan but later become required to prepare an SPR plan to incorporate the downstream notification requirements into the PPC plan to satisfy the obligations to maintain both plans.  There is also the desire of PADEP to have the permittees combine the PPC, SPR, and SPCC plans together.  Although SPCC plans are not otherwise required to be submitted to PADEP upon preparation, if your facility elects to combine applicable SPCC, PPC, and SPR elements into a single plan, the SPCC elements of the combined plan would, by default, become reviewable when submitted to PADEP.

While the above is not intended to be comprehensive of applicable requirements and complexity of site-specific scenarios that can arise, it provides some state-specific regulatory considerations.   Stay tuned for upcoming articles that will continue to cover additional AST requirements in other states.  If you have questions on AST compliance in Pennsylvania or another state, please feel free to reach out to me at sbharucha@all4inc.com or 571-392-2592 x505 or Paul Hagerty at phagerty@all4inc.com or 610-422-1168.

2022 Look Ahead – Part 4

The 2022 Look Ahead is a multi-part series consisting of 20 articles to celebrate ALL4’s 20th anniversary.

 

 

 

View Part 1

View Part 2

View Part 3

Looking Ahead to The Future of Air Quality Compliance // Roy Rakiewicz 

Those who have been involved with air quality compliance for the past 35 years as part of the regulated community, as regulators, or as environmental consultants have witnessed a monumental transformation in the very nature and meaning of compliance.  To understand the future of air quality compliance, it is helpful first to look at the past.

Prior to the 1990 clean air act amendments (CAAA), air quality compliance requirements were rule specific [e.g., Standards of Performance for New Stationary Sources (NSPS) or Reasonably Available Control Technology (RACT)] or as specified in a permit to construct [e.g., Best Available Control Technology (BACT) or Lowest Achievable Control Technology (LAER)].  With the exception of regulations that required a facility to install and operate continuous emissions monitoring systems (CEMS), continuous opacity monitoring systems (COMS), or certain air pollution control devices (e.g., thermal oxidizers), compliance with air quality requirements was passive.  In other words, compliance was assumed unless a facility failed a stack test or a compliance inspection by a regulator uncovered a violation.

Things changed drastically in the 1990s as the passage of the 1990 CAAA significantly altered the compliance landscape of the regulated community.  The newly created Title V operating permit program, which consolidated air quality requirements into a single permit, permanently changed air quality compliance at major facilities to an active program with the implementation of periodic compliance reporting (e.g., semi-annual reports) and annual compliance certifications for all applicable air quality requirements.  The annual certification requirement resulted in a new compliance focus at affected facilities because environmental staff now had to develop and provide compliance documentation to a responsible official (e.g., plant manager) to personally certify compliance with all applicable air quality requirements, at the risk of criminal fines.  On top of Title V, Title III of the 1990 CAAA identified a list of 189 toxic air pollutants that resulted in a suite of new National Emissions Standards for Hazardous Air Pollutants (NESHAP) under 40 CFR Part 63.  A common thread across the new Part 63 NESHAP was an enhanced compliance monitoring and reporting approach, including requirements for deviation reporting and compliance certification by a responsible official.

Air quality compliance obligations for the regulated community (and the regulators) continued to expand into the new millennium with the 40 CFR Part 64 Compliance Assurance Monitoring regulations, the need to develop “gap-filling” monitoring for regulations with no specific monitoring obligations, the continued development of Part 63 NESHAP regulations, and the evolution of compliance approaches including fence line and flare monitoring requirements.  The increased reliance of regulatory agencies on electronic compliance reporting and the expanding availability of facility’s air quality permits, applications, and compliance records on-line has led to a level of transparency that was previously unimaginable.  As a result, a facility’s air quality compliance history as well as other reported information (e.g., Toxics Release Inventory reports, Greenhouse Gas (GHG) reports) and related data are typically available to those who care to look or ask for it.

You may be wondering who, outside of a regulatory agency, would be interested in your facility’s air quality compliance information, which is a fair question.  The short list could include:

  • Investors and Creditors – conscientious investors and lenders may be interested in facility sustainability practices or whether there is a robust Environmental, Social, and Governance (ESG) program, which is among the hottest topics in the environmental and investment worlds these days.
  • Competitors – to benchmark their own environmental performance or to glean what they can from a facility’s reports and compliance data.
  • Non-governmental Organizations (NGO) – to audit a facility’s environmental performance or to gather information for use to critique a proposed permitting action.
  • Civil Rights Groups – to review Environmental Justice (EJ) concerns. EJ policies and the Civil Rights Act provide a means for interveners to critique a permit action as being deficient or to claim the permitting agency has not properly considered a facility’s impacts on the community and could be included as part of the grounds for permit denial when outside entities choose to oppose issuance of a construction permit.
  • Local and National Press – to support an investigative news story concerning a local facility’s environmental performance or the cumulative impacts of co-located facilities on community health risk.
  • Neighbors – local residents who fear they are being exposed to harmful emissions.  Note that U.S. EPA is now providing grant money to “to enhance ambient air monitoring in communities with health outcome disparities from pollution and the COVID-19 pandemic.”

The new reality is that it may no longer good enough for a facility to merely be in compliance with permit terms and conditions given the risks associated with third party interests and potential actions (e.g., “community” monitoring using low cost sensors, third party objections to compliance monitoring permit terms, EJ claims, etc.).  Facilities with robust monitoring and reporting systems, consistently strong air quality compliance records, and a culture of continuous improvement should not fear the interests of others in their compliance performance.  Rather, such facilities should evaluate compliance in the context of third party risks and consider what, if any, additional “beyond compliance” actions may be appropriate.  For everyone else, now may be an opportune time to take a fresh look at facility baseline compliance monitoring and reporting systems and to make improvements, as applicable, to limit the risks associated with the future of air quality compliance.  For more information please reach out to Roy Rakiewicz or your ALL4 project manager.

Waste to Energy Air Regulatory Look Ahead //  Lindsey Kroos

Waste to Energy (WTE) is not a new concept, but it’s been garnering some attention recently such that we thought we’d explore what has taken place and look ahead to what may be in store for 2022. Two topics in particular that are at the forefront of the activity are municipal waste combustion regulations and pyrolysis and gasification regulations (or lack thereof). But before diving into the energy part, let’s first discuss the waste part; specifically, solid waste combustion.

Clean Air Act Section 129

Air emissions from combustion sources (e.g., boilers, engines, etc.) are regulated under Sections 111 and/or Section 112 of the Clean Air Act (CAA), unless those sources combust waste. Air emissions from solid waste combustion are regulated under Section 129 of the CAA, aptly titled Solid Waste Combustion. For example, a boiler that combusts coal may be regulated under CAA Section 112 by 40 CFR Part 63, Subpart DDDDD (National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters), commonly referred to as Boiler MACT. However, a boiler that combusts solid waste would instead be regulated under CAA Section 129 by 40 CFR Part 60, Subpart CCCC (Standards of Performance for Commercial and Industrial Solid Waste Incineration Units) or Subpart DDDD (Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units), commonly referred to as the CISWI Rules.

The distinction between a fuel and a solid waste is not always straightforward. Whether a material is a fuel or a solid waste can be determined by consulting 40 CFR Part 241 (Solid Wastes Used as Fuels or Ingredients in Combustion Units). For sources like boilers firing non-traditional fuels that could potentially be considered solid waste, the determination carries a lot of weight, as CAA Section 129 is generally more stringent than CAA Section 112. For sources that clearly combust solid waste and are regulated by CAA Section 129, there are regulations under Part 60 that apply to specific types of solid waste combustors and incinerators: Sewage Sludge Incinerators (SSI), Hospital/Medical/Infectious Waste Incinerators (HMIWI), CISWI, Other Solid Waste Incinerators (OSWI), and Municipal Waste Combustors (MWC).

Municipal Waste Combustors

MWC may also be the most recognizable example of WTE. The concept behind WTE for MWCs is simple – combusting waste not only reduces the volume of waste that may otherwise go to a landfill, but also generates heat that can be recovered and utilized to generate steam and electricity. In theory this sounds like a win-win; however, MWC WTE facilities are also often subject to scrutiny due to the air emissions generated by the combustion of municipal solid waste (MSW).

MWC are regulated by various subparts under Part 60 depending on their size and when they commenced construction, reconstruction, or modification. 40 CFR Part 60, Subparts Cb, Ea, and Eb regulate large MWC, which have a combustion capacity greater than 250 tons per day (tpd) of MSW, and 40 CFR Part 60, Subparts AAAA and BBBB regulate small MWC, which have a combustion capacity less than or equal to 250 tpd of MSW. As described earlier, Section 129 standards are generally considered to be very stringent; however, the last amendment to any of the MWC rules was in May 2006, to Subparts Cb and Eb (which were then reconsidered in 2007 and remanded in 2008), even though U.S. EPA is required by CAA Section 129 to review and update these rules on a 5-year cycle.

The 2008 remand is the basis for recent legal action intended to make U.S. EPA act on the 2008 remand by updating the rules, and specifically lowering the emissions limits. The petition also stems from attention on WTE facilities because they tend to be near communities with Environmental Justice (EJ) concerns, and therefore aligns with U.S. EPA’s current EJ priorities.

Pyrolysis & Gasification

Many of the Section 129 solid waste combustion regulations include references to pyrolysis and gasification. However, each rule addresses those terms slightly differently. Most rules do not consider pyrolysis and gasification, which take place in no- or low-oxygen environments, to be combustion, and therefore they are not generally regulated by those Section 129 standards. On the other hand, the OSWI rule includes pyrolysis in the definition of MWC, and therefore does regulate those operations. However, U.S. EPA proposed amendments to the OSWI rule in 2020 to remove pyrolysis from the MWC definition, which would reverse the rule’s previous applicability. The amendments have not been finalized. To add to the inconsistency, some state agencies do not regulate pyrolysis and gasification operations as incinerators, but some do.

Meanwhile, pyrolysis and gasification technologies have become more and more prevalent over the last several years. Indeed, due to their increasing prevalence, particularly to “convert waste into useful products or energy,” and the inconsistent interpretations of whether they are combustion units, U.S. EPA published an Advance Notice of Proposed Rulemaking (ANPR) in September 2021 to gather information on pyrolysis and gasification activities to determine whether and how they should be regulated. The ANPR was prompted in part by the comments received on the 2020 proposed amendments to the OSWI rule. In the ANPR, U.S. EPA states that pyrolysis and gasification are being used to “convert solid or semi-solid feedstocks, including solid waste (e.g., municipal solid waste, commercial and industrial waste, hospital/medical/infectious waste, sewage sludge, other solid waste), biomass, plastics, tires, and organic contaminants in soils and oily sludges to useful products such as energy, fuels and chemical commodities.”

Stay tuned for another article with more details about the ANPR, but suffice it to say that it received significant attention, with 170 public comments submitted in late 2021. Unsurprisingly, those industries currently conducting pyrolysis or gasification operations do not want to become subject to standards under CAA Section 129, whereas environmental groups are supporting that possibility, arguing that even in low-oxygen conditions, there is still combustion taking place and pollutants being emitted that should be regulated. While not the focus of this article, this topic is top of mind not only for WTE operations, but also product recycling and recovery operations. One of the arguments for regulating pyrolysis and gasification units, however, is similar for both recycling and energy recovery – that additional processing is needed in order for them to be effective, such as further refining plastic-based end products or mixing fuel-based end products with supplemental fuel.

Looking Ahead

WTE is seen by some as a positive alternative to landfilling or other waste treatment techniques, and by others as waste combustion that should be further regulated. Between updating regulations for MWCs and regulating pyrolysis and gasification technologies as solid waste combustion, the WTE industry has a lot to keep up with in 2022 and beyond. Please contact Lindsey Kroos or your ALL4 project manager with questions about WTE or CAA Section 129 regulations.

Looking Ahead to New Requirements for Air Quality Cumulative Impacts Assessments in Permitting // Dan Dix

If you haven’t completed, gotten a request, or heard of a cumulative impacts assessment (CIA) I would expect you to in 2022.  I’ve personally seen an increase in environmental groups requesting that cumulative impacts be considered before issuing an air permit as part of the public participation process that most air permitting programs have. In addition, some states are including a requirement for cumulative impacts to be evaluated for environmental permitting projects in or adjacent to environmental justice (EJ) communities.  On the federal level, in response to President Biden’s executive order on addressing climate change and EJ, U.S. EPA is revising 2003 guidance on cumulative risk assessments that we are expecting to be released any day now.  Looking ahead to 2022 I would expect more environmental agencies to update and add requirements to conduct CIA that are more similar to the multi-pathway air quality risk assessments discussed below.

So, what exactly is a CIA?  U.S. EPA defines a cumulative risk assessment as “an analysis, characterization, and possible quantification of the combined risks to health or the environment from multiple agents or stressors.”  A CIA and a cumulative risk assessment are mostly synonymous with the main difference being that a risk assessment quantifies the increased risk from cumulative impacts whereas a CIA is a broader definition where cumulative impacts can be compared to multiple criteria including but not limited to an ambient concentration threshold.  Many different types of CIA that vary in size and scope currently exist as part of federal and state air quality requirements.  New Jersey’s EJ For All Act defines cumulative impacts as “the disproportionate exposure of a community to public health or environmental hazards from one or multiple facilities including power plants, recycling facilities, sewage plants, incinerators, landfills, and others.”  California’s CalEnviroScreen tool evaluates cumulative impacts in terms of pollution burden.

The most common type of CIA that many major sources may be familiar with is a National Ambient Air Quality Standards (NAAQS) air quality modeling demonstration that is required when the Prevention of Significant Deterioration (PSD) permitting program is triggered.  In a NAAQS air quality modeling demonstration, after it has been determined that a project will result in a significant impact, the applicant is required to evaluate a proposed project or modification’s air pollutant impacts combined with existing facility-wide air pollutant impacts, other nearby facilities’ air pollutant impacts, and air pollutant background concentrations as measured by ambient monitors.  A NAAQS air quality modeling demonstration is cumulative in that it evaluates air pollutant impacts from multiple sources in a modeling domain.  It is not cumulative in that each NAAQS pollutant is evaluated independently and that only inhalation is evaluated.

Some state air toxics programs include air quality inhalation risk assessment requirements to evaluate the cumulative health impacts that multiple pollutants can have on the environment and human health.  In a cumulative inhalation risk assessment model-predicted ambient concentrations are compared to each individual pollutant’s inhalation unit risk factor (URF) for carcinogenic pollutants and reference concentrations (RfC) for noncarcinogenic pollutants.  Each individual pollutant’s URF or RfC are then added and compared to a combined risk threshold (typically expressed as the increased chance in a million) for carcinogenic impacts evaluation, and a hazard quotient (HQ) for noncarcinogenic impacts evaluation.  An HQ is defined as the ratio of potential exposure to a pollutant to the level at which no adverse effects are expected.  Depending on the type of inhalation risk assessment being performed or required, an acceptable level of risk or HQ is established as a threshold by the environmental agency.  An inhalation risk assessment is cumulative in that it evaluates the impacts of multiple pollutants on environment and human health.  However, again, only one pathway (inhalation) is evaluated in this type of assessment.

Some state air toxic programs (most notably California air jurisdictions) require multiple pathways (multi-pathway) to be included in an air quality risk assessment.  A multi-pathway air quality risk assessment evaluates additional pathways beyond inhalation.  In a multi-pathway air quality risk assessment, the modeling includes both a prediction of ambient air concentrations as well as soil and water deposition.  The deposition impacts are used to evaluate the potential for soil ingestion and dermal exposure.  The soil and water deposition results can also be used to quantify uptake of pollutants through eating vegetables from a home garden or farm animals and eating fish caught in waterways included in the evaluation area.  In a multi-pathway air quality risk assessment, multiple pollutants, multiple pathways, and multiple sources are considered.

Another input to keep in mind when considering what impact your facility may have on the local community is exposure type and duration.  As part of a risk assessment, different exposure types and durations can be accounted for in the analysis.  To determine duration, local zoning maps are often reviewed to identify residential, commercial, and industrial areas in the modeling domain.  For residential areas, risk assessments account for the potential for as much as 70 years of exposure, versus industrial areas which assume a work exposure duration of a typical 40-hour work week for 25 years.  Typically, sensitive populations present at schools, hospitals, and nursing homes are also identified in a modeling domain for this type of assessment.  Risk thresholds are typically lower to ensure the protection of these sensitive populations.

As you can see by the examples provided above these are many different types of CIA that vary in size and scope.  We mentioned in our Environmental Justice Look Ahead that we expect additional policy and regulatory activity this year, which could include the requirement to address cumulative impacts of your facility as part of your next permit renewal or construction permit application if you are in or near an EJ community.  Our Air Toxics Look Ahead also mentioned that U.S. EPA is being pressured to incorporate cumulative risk assessments into its regulatory activities and that environmental groups are pressuring state agencies to investigate cumulative impacts in areas where there are multiple facilities with air emissions near a community.  If you have any questions about CIA or interested in conducting one for your facility, please contact Dan Dix at ddix@all4inc.com or at 610.422.1118.

Why You Should Consider Implementing a Digital Solution in 2022 // Julie Taccino

As you are starting this year, you may be planning for changes that will make your organization’s EHS processes run more smoothly.  A digital solution is something to consider for your organization as it can increase transparency and visibility as well as reduce administrative tasks. A new or expanded tool can increase data quality and allow more flexible data analysis and reporting.

Mobile Applications

Does your organization have business processes that involve completing a checklist or inspection form on paper and then transferring that data into an electronic system such as a spreadsheet or database? A digital tool with a mobile application can allow users to complete an inspection or safety observation via a portable electronic device such as a tablet or phone. Other users may use a digital tool to capture events such as safety incidents, environmental events, or other information in the field.

Data capture via a mobile application reduces the administrative burden of recording the data into a paper document or isolated spreadsheet which then must be transferred to a final electronic storage location. It can also be easy to include a photo taken by the electronic device as part of the checklist or observation.

Environmental, Social and Governance (ESG) Reporting

ESG reporting involves data and metrics related to environmental, social and governance key performance indicators (KPIs). Various data sources are needed in order to produce these KPIs. The more manual manipulation needed to produce an ESG report, the more potential for a manual input error and less time is put into understanding the data.

Reports that must be produced every year require time and resources to complete and review for quality. If the process can be supported by a robust tool, time can be focused on data analysis and quality review rather than basic data manipulation. Automating this process as much as possible can improve data quality and transparency as well as reducing the time and resources needed to produce these recurring reports.

For those organizations that currently have a digital tool it can be possible to leverage that existing tool and add on the KPIs associated with ESG reporting. For example, if there is an existing system that calculates air emissions and site greenhouse gas (GHG) emissions, Scope 2 and Scope 3 GHG emissions could be added to support ESG reporting.  See our recent ESG blog to learn more about the topic and what we see for 2022.

Analyzing and Reporting Digital Data

What use is collecting data if you don’t use it to improve your processes? Potential data-driven process improvements include:

  • Can track against KPIs/limits in real time
  • Can identify sources of incidents and address root causes
  • Can track data to feed into other reports/data models
  • Can easily change rollups or scope of data
  • Can help allocate resources based on data (people or training or equipment)

Storing information in a common digital tool can allow for more flexible data analysis and reporting which can support data-driven improvements. It can be:

  • easier to see trends or compare individual sites or groups of assets;
  • easier to compare across different business lines or business units within a company;
  • included in dashboards for easy reference or to highlight items of interest;
  • sent to data visualization tools such as PowerBI or Tableau; or
  • more efficient to conduct remote audits of that data by third party auditors, internal auditors or interested agencies.

Summary

A digital tool is something to consider for your organization because it can allow focus on data analysis over data entry, increase data quality, and allow more flexible data analysis and reporting. Organizations that have an existing digital tool can experience additional benefits by expanding or enhancing their systems.

This blog has provided a brief discussion of the potential benefits of digital solution tool implementation.  ALL4’s Digital Solutions Practice has extensive experience helping clients to scope, select, implement, maintain, and upgrade various types of digital tools. If you would like to discuss a digital solution for your company, please contact Julie Taccino at jtaccino@all4inc.com or 281-201-1247.

Preparing for PFAS in 2022 // Kayla Turney

State agencies and the U.S. Environmental Protection Agency (U.S. EPA) are continuing to move forward with per- and polyfluoroalkyl substances (PFAS) regulations across all media, and that’s a trend that we aren’t expecting to slow down in 2022.  In fact, as detailed in U.S. EPA’s “PFAS Strategic Roadmap” document, there are several key federal actions that we expect U.S. EPA to make this year.  It’s also expected that state agencies will follow suit when met with increased federal action.

So, what items should be on your preparatory short list for PFAS this year?

  1. Toxics Release Inventory (TRI): Prepare for Removal of the “De Minimis” Exemption

U.S. EPA is expected to propose rulemaking in Spring 2022 that would classify the TRI-listed PFAS as “chemicals of special concern,” which means that the TRI de minimis exemption would no longer apply.  If promulgated, facilities that use (i.e., “manufacture,” “process,” or “otherwise use” as defined under TRI) materials containing TRI-listed PFAS will no longer be able to rely upon supplier certifications exempting them from TRI reporting requirements based on “de minimis” levels.  For example, let’s say you have aqueous film forming foam (AFFF) on-site and the safety data sheet (SDS) says something arbitrary like “Proprietary Perfluoro Chemicals.”  Let’s also say that there was an emergency last year that required the use of the AFFF, so you reach out to the AFFF supplier to determine if the “proprietary perfluoro chemicals” is one of the TRI-listed PFAS.  Currently, their response could be that there are simply no PFAS greater than de minimis levels, without actually giving you the specifics, and that would be enough to close out the item for TRI reporting.  But if the de minimis exemption is removed, it will be critical for facilities to know exactly what PFAS, and in exactly what quantities, are in all of their materials on-site.

How can you prepare?  Review your list of materials on-site and flag any that contain, or may potentially contain, PFAS.  If you relied on any supplier notifications historically claiming de minimis levels, it’s recommended that you flag those materials to note that you will need to get an updated SDS or chemical listing from your suppliers if the rule is changed.  It is also expected that U.S. EPA will continue to add more PFAS to the list subject to TRI reporting, so having a short list on-hand of any flagged materials will help as these rules continue to evolve.  For reference, there are currently thousands of identified PFAS, but there are only 175 on the TRI list.

Note that this rulemaking is not expected to impact the reporting year 2021 TRI report (due July 1, 2022) but may impact future year reporting so you should begin gathering information in 2022.

  1. Drinking Water: Prepare for Additional Enforceable Standards and Health Advisory Levels

There are several Federal drinking water actions anticipated in 2022 that may also lead to more state agency actions.  For example, U.S. EPA is proposing to publish an enforceable drinking water standard for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) under the Safe Drinking Water Act (SDWA).  The proposed rule is expected to be issued in Fall 2022, with a final regulation expected in Fall 2023.  Additionally, U.S. EPA is planning to finalize toxicity assessments and issue new water quality health advisory levels for several PFAS [e.g., perfluorobutane sulfonic acid (PFBS) and hexafluoropropylene oxide dimer acid and its ammonium salt (Gen X Chemicals)] in Spring 2022.  Although health advisory levels are not enforceable limits, we’ve seen in the case of PFOA and PFOS that Federally-issued health advisory levels give state agencies necessary data and information to set state-enforceable limits.

How can you prepare? Consider identifying whether your facility may be a potential source of the regulated PFAS through internal document reviews.  If you have an upcoming National Pollutant Discharge Elimination System (NPDES) permit renewal, meet with your state agency to determine if PFAS monitoring will be required as part of the new permit.  U.S. EPA is also expected to issue new guidance to state permitting authorities in 2022 to recommend addressing PFAS in NPDES permits.  Although there may not be quantitative effluent limits built into permits, there may still be new monitoring requirements.

  1. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and Resource Conservation and Recovery Act (RCRA): Prepare for “Hazardous Substance” and “Hazardous Waste” Designations

U.S. EPA is proposing rulemaking to designate PFOA and PFOS as “hazardous substances” under CERCLA.  The proposed rule is expected in Spring 2022, with a final rule expected in Summer 2023.  This designation would require facilities with PFOA- and/or PFOS-containing materials on-site to report certain releases of these materials to the environment.  Additionally, U.S. EPA Administrator Michael Regan issued a response to a petition by Governor Michelle Luan Grisham of New Mexico calling for PFAS regulation under RCRA.  In Administrator Regan’s response, he outlined U.S. EPA’s plans to initiate rulemaking to designate PFOA, PFOS, PFBS, and Gen X Chemicals as RCRA Hazardous Constituents under Appendix VIII, which is the building block for eventual designation of certain materials containing these compounds as “hazardous waste.”

How can you prepare?  Similar to other preparation steps, the most prudent thing you can do is review your list of materials on-site and flag any that contain, or may potentially contain, these PFAS.  Develop a qualitative approach to meet any quantification, reporting, or recordkeeping requirements under CERCLA and RCRA.  Be able to answer the question of hypothetically, if these PFAS were designated as hazardous substances and/or hazardous wastes, how would your facility meet the regulatory obligations if there was a release of PFAS off-site, or if certain waste or sludge could be designated as hazardous waste in the future.

The list above is certainly not exhaustive but details some of the potential items that could impact a large swath of industries.  PFAS regulations are continually evolving, including numerous state-based actions, and we’ll be paying close attention to the changes 2022 brings.  While this article is limited to expected actions in 2022, there are many more on the horizon for 2023 as well.  If you have any questions or would like further information, please reach out to me at kturney@all4inc.com.

ALL4’s Texas 2022 Look Ahead

Is it just us, or did time fly?  While we ended 2021 with COVID still around us, it’s unclear if we are heading into 2022 or 2020-too… I am hoping for a year of lifting mandates and a return to pre-pandemic normalcy.  This year is gearing up to be a pivotal year for air regulations, water quality standards,  Resource Conservation and Recovery Act (RCRA) and expanding interest in corporate Environmental, Social, and Governance (ESG) policy.

Are you feeling a little lost about what regulatory actions could impact the Texas Environment?  Here are a few areas the Texas community can look forward to in 2022 as we progress into a more sustainable future:

  • Future Ozone Nonattainment Reclassification in Texas
  • Industrial Hazardous Waste (IHW) Management Fees Increase
  • Texas Surface Water Quality Standards (TSWQS)
  • Texas Legislation to Improve the Texas Power System
  • Texas Adopts U.S. EPA’s Generator Improvement Rule for RCRA Hazardous Waste
  • Texas AQ201
  • What’s new with ALL4

Future Ozone Nonattainment Reclassification in Texas //

The U.S. Environmental Protection Agency (U.S. EPA) is required to sign a final action to reclassify the Dallas-Fort Worth (DFW) and Houston-Galveston-Brazoria (HGB) nonattainment areas for the 2008 ozone standard from serious to severe by Jan 20, 2022, and for the 2015 standard by Feb 3, 2022.  After signature, U.S. EPA would then publish the final actions in the Federal Register and the effective dates would be set in that publication (typically 30 days later).  U.S. EPA is expected to propose the reclassification actions in the Federal Register this Winter for public comment prior to taking final action, although U.S. EPA is taking longer to propose than anticipated.  I don’t want to play the guessing game on what U.S. EPA is going to do, but I will keep you updated once U.S. EPA publishes their proposal for public comment.

The latest updates we have include:

  • It was decided that the possible 1-year extension is not happening, so the DFW & HGB areas will be redesignated from serious to severe “this Winter.”
  • State Implementation Plan (SIP) requirements will need to be put in place soon.
  • Texas Commission on Environmental Quality (TCEQ) is currently looking at decreasing Mass Emissions Cap and Trade (MECT) program allowances by 25%.

So, no solid answer for the 2022 lookahead, but know that action will happen early this year.

Below are the current classifications for ozone nonattainment areas in Texas:

Area Ozone (2008) Ozone (2015)
Houston-Galveston-Brazoria Serious Marginal
Dallas-Fort Worth Serious Marginal
San Marginal

Industrial Hazardous Waste (IHW) Management Fees Increase // Andrew Hebert

In line with 30 Texas Administrative Code (TAC) Section 335.325(j)(3), TCEQ approved new regulations in November 2021 that changed hazardous and Class 1 industrial waste management fees.  IHW management fees are due to increase by 12% for any waste managed on or after March 1, 2022, and will be shown in the March monthly reports that are due by April 25, 2022.

The rate increase will be enacted on Class 1 industrial waste discarded at any MSW landfill and will have the increased fee of $6.72 in state and $8.40 for out of state waste.

Texas Surface Water Quality Standards (TSWQS) //

The TCEQ Water Quality Planning Division is in the process of preparing revisions to the TSWQS, and their timeline outlining when they intend to go before the commissioners to gain permission to formally propose the revisions to the public is in the process of being updated on TCEQ’s webpage.  Below is the projected timeline they are preparing to post:

  • Proposal agenda: February 23, 2022
  • Public comment period: February 27, 2022 – April 18, 2022
  • Public hearing: April 18, 2022
  • Adoption agenda: August 2022

Backup material for the proposal agenda should be posted on TCEQ’s public website on February 4, 2022.  They will send out a notification email to the stakeholder group once the backup materials are on the web.  If you are not a member of their stakeholder listserv and would like to receive notifications regarding the TSWQS, please visit the Surface Water Quality Standards Advisory Work Group webpage and use the subscription link under the subheading “Participating in the SWQSAWG.”

Texas Legislation to Improve the Texas Power System // Aditya Shivkumar

More than 4.5 million households in Texas were left without electricity during the Winter Storm Uri in February 2021.  While the state has seen several cold weather events in the past including the severe freeze in 2011, none of these events had as big of an impact as the 2021 ‘Texas freeze.’

What went wrong?  On the face of it, the reason for the outage seems obvious – the demand for electricity was much higher than the available supply.  In such situations, the grid operator – Electric Reliability Council of Texas (ERCOT) orders load shedding to manage the grid stability.  However, in the February 2021 storm, the demand spiked more than expected and the power plants (mainly natural gas powered) that are expected to serve as base load power could not supply electricity because of fuel shortages and freezing equipment, leading to cascading blackouts. Scarcity of electricity resulted in high electricity bills, stranded consumers, and several corporate bankruptcies.  The event exposed the gaps in preparedness of the energy system and its susceptibility to infrequent external shocks.

In response to the inadequacies identified in the wake of Winter storm Uri and to improve system wide reliability, the lawmakers passed the Texas Senate Bills 2 and 3 aimed to improve the Texas energy system.

SENATE BILL 3

Bill 3 focuses on power generators and consumer awareness.  The major provisions under Senate Bill 3 include:

  • ‘Weatherization’ of electricity generation facilities and gas facilities and fines up to $1 million/day for non-compliance with certain regulations;
  • An emergency pricing program to protect generators when the ‘high systemwide offer cap’ is in effect for >12 out of 24 hours;
  • The Public Utility Commission of Texas (PUCT) is required to set “winter resource capability qualifications” such as on-site fuel storage, dual-fuel capability, or firm fuel supply arrangements; and
  • Notification to consumers about load-shedding procedures and outage alerts.

SENATE BILL 2

Bill 2 mainly focuses on the governance structure of ERCOT.  The notable changes include:

  • Reduce the number of Board of Directors from 16 to 11 with 8 fully independent members;
  • The independent members will be selected based on executive level experience in a range of fields. Once selected, those members must be confirmed by the newly created Board Selection Committee; and
  • All members must be Texas residents.

Will Texas face another ‘freeze’ in 2022?  The new winter outlook by the National Oceanic and Atmospheric Administration (NOAA) Climate Prediction Center predicts a warmer and drier-than-normal winter in Central Texas.  Chances are we may not see low temperatures as severe as February 2021.  To handle severe weather events, the state has taken several measures, enacted policies, and issued guidelines to weatherize the energy infrastructure. Increased awareness should help recalibrate consumer expectations. Power companies should monitor the state’s policies closely to remain compliant with the evolving rules.

Texas Adopts ’s Generator Improvement Rule for RCRA Hazardous Waste // Meghan Skemp

On July 30, 2021, TCEQ’s proposed rule to revise state hazardous and industrial waste regulations, codified under 30 TAC Chapter 335 – Industrial Solid Waste and Municipal Hazardous Waste, was published in the Texas Register.  This proposed rule adopts federal rule changes into state regulations and addresses inconsistencies within the state regulations.  This proposed rule also includes stricter on-site management requirements from U.S. EPA’s Generator Improvements Rule and other significant updates to the RCRA hazardous waste management regulation including:

  • U. S. EPA’s RCRA Hazardous Waste Generator Improvements Rule,
  • The Electronic Hazardous Waste Manifest (e-Manifest) Fee Rule,
  • Definition of Solid Waste (DSW) and recycling provisions changes,
  • New management standards for Pharmaceutical Hazardous Waste, and
  • The addition of aerosol cans to the universal waste program.

The steps for final rule adoption include:

  • The proposed rule was published in the Texas Register on July 7, 2021.
  • The public comment period ended August 30, 2021.
  • The commissioners met to discuss adoption of the proposed rule on January 12, 2022.
  • Final publication in the Texas Register is estimated to be on or about January 28, 2022.
  • The anticipated rulemaking effective date would be February 3, 2022.

Texas AQ201

We’d be remiss not to mention and invite you to attend the Texas Air Quality 201 (AQ201) training that provides a comprehensive and foundational background of the history of Texas air regulations and the various air regulatory programs.  The program covers many of the 30 TAC air chapters including visible emissions, particulate matter, sulfur compounds, volatile organic compounds, and nitrogen compounds.  Texas emissions inventory requirements are discussed as well as the Texas SIP.  We dive into construction (Permit-by-Rule (PBR), Standard Permits, New Source Review (NSR) – case-by-case) and operating permit (Title V) requirements.  Other components of permitting are also covered, ranging from monitoring to Best Available Control Technology (BACT) and Lowest Achievable Emission Rate (LAER).  Modeling requirements in Texas (National Ambient Air Quality Standards (NAAQS), state property line, and Modeling and Effects Review Applicability (MERA) are also detailed over two sessions.  The program addresses topics that are encountered day to day by facility environmental personnel.

Texas AQ201 is training for those seeking to establish and further their understanding of air quality obligations in Texas that impact regulated facilities on a day-to-day basis.  The topics covered by AQ201 will be encountered by environmental personnel in their real-world projects.  Unlike other air quality training programs, AQ201 is delivered via twelve 30-minute webinar sessions, so no out-of-facility time is required for participation.

Numerous professional designations require continuing education/professional development.  Upon request, ALL4 will present a certificate identifying ALL4’s Texas Air Quality 201 as 6 hours of continuing education/professional development.

WHAT’S NEW WITH ALL4?

ALL4 continued to grow throughout 2021 by closing on an office acquisition (in California) and adding staff in each of our Georgia, Kentucky, North Carolina, Pennsylvania, Texas, and Washington D.C. Offices as well as staff throughout the country that work remotely.  With our growth and addition of talent, ALL4 now provides comprehensive Environmental, Health and Safety consulting services as well as expertise with our two new practice areas, Digital Solutions and Environmental, Social, and Governance (ESG).

Last year we mentioned our search for a new Houston Office Director.  This role has been filled by Mike Jackson and his bio can be found here.  (Don’t worry, former Houston Office Director, Kristin Gordon, isn’t going anywhere!  In a new role, she’ll continue to focus directly on our clients nationally and the regulatory challenges they face.)

If you have questions on any of the topics above and/or know of talented EHS consulting professionals looking for a growth-oriented company to build a career at, please reach out: Mike Jackson (mjackson@all4inc.com or 281.201.1240) or Meghan Skemp (mskemp@all4inc.com or 281.937.7553×307).

2022 Look Ahead – Part 3

The 2022 Look Ahead is a multi-part series consisting of 20 articles to celebrate ALL4’s 20th anniversary.

View Part 1

View Part 2

Air Toxics Look Ahead // Amy Marshall

There are many things going on in the world of air toxics.  In 2022, we will see activity to address concerns about specific air toxics like ethylene oxide, more work reviewing and revising various National Emission Standards for Hazardous Air Pollutants (NESHAP), regulatory activity around new hazardous air pollutants (HAPs), proposed revisions to the rule that did away with the “once in, always in” policy, and a national air toxics assessment (NATA) from U.S. Environmental Protection Agency (EPA) that will be linked to their long-awaited updated Environmental Justice (EJ) data and mapping tool.  What specifically might we see?

Ethylene Oxide

U.S. EPA updated its risk value for ethylene oxide in 2016 and has determined that small quantities of ethylene oxide can present significant cancer risks to surrounding communities.  In addition to actions that states have taken specific to a few ethylene oxide sources in the past few years, U.S. EPA has been working to better characterize air concentrations of ethylene oxide and has been working to review and revise regulations that cover facilities that emit ethylene oxide.  Specifically, U.S. EPA has:

  • been conducting ambient monitoring of ethylene oxide at various locations,
  • collected information from ethylene oxide commercial sterilization operations to support revisions to the NESHAP for Ethylene Oxide Commercial Sterilization and Fumigation Operations,
  • collected information from facilities covered by the Miscellaneous Organic NESHAP (MON) and revised that rule with more stringent requirements for equipment in ethylene oxide service, and
  • extended Toxics Release Inventory (TRI) reporting to 29 facilities.

In 2022, we expect U.S. EPA to reconsider the revised MON provisions related to ethylene oxide, continue its review of the commercial sterilizer NESHAP, and gather new data to review other NESHAP with sources that emit ethylene oxide, such as the Hazardous Organic NESHAP and the Polyether Polyols NESHAP.  We can expect to see additional ambient monitoring for ethylene oxide in communities that are concerned about certain emission sources as well.

NESHAP Revisions

Aside from the regulatory activity around NESHAP with sources emitting ethylene oxide, U.S. EPA is also reconsidering several rules for which they finalized risk and technology reviews (RTRs) during the previous administration.  We will see information collection requests (ICRs) for some of these rules, including the Plywood and Composite Wood Products (PCWP) rule, as U.S. EPA looks to revise these rules to fill regulatory gaps (e.g., HAPs or process units in the source category that are not currently subject to standards).  Look for proposed revisions (or decisions not to revise) the PCWP, organic liquids distribution (OLD), stationary combustion turbines, site remediation, lime manufacturing, rubber tire manufacturing, taconite ore processing, and miscellaneous coating manufacturing NESHAP.  We should also see a final Industrial Boiler NESHAP remand rule, a final polyvinyl chloride (PVC) reconsideration rule, and a proposed reconsideration of the Mercury and Air Toxics Standard (MATS).  We are still waiting on RTR rules for boilers and engines but are not likely to see those proposals in 2022 given the rest of U.S. EPA’s workload.

New HAPs

U.S. EPA added a new HAP (1-bromopropane) to its list for the first time on January 5, 2022.  The addition of this HAP has raised a lot of questions and U.S. EPA is expected to issue guidance followed by an “infrastructure” rule in 2022 to answer questions around timing of new requirements for facilities that become subject to new requirements upon a change to the HAP list.  Although use of 1-bromopropane is not widespread, industry should review and provide input on the proposed rule because U.S. EPA could add a more widely-emitted pollutant to the HAP list in the future.

Once In, Always In

U.S. EPA reversed its previous “Once In, Always In” policy and promulgated regulatory revisions in 2020 that would allow facilities to reclassify from major to area sources (and back again).  The rulemaking was fairly controversial, with those in opposition claiming it would result in HAP emissions increases at sources that were allowed to reclassify as area sources and avoid applicability of major source NESHAP.  U.S. EPA is reviewing the rule and is likely to propose changes in 2022.  At a minimum, the changes will address how rigorous a facility’s emissions inventory must be to reclassify as an area source and federal enforceability of HAP emissions limits.  Hopefully the current administration will not determine that it should revoke the rule and return to the old policy, which did not allow major sources of HAPs to reclassify as area sources after the first substantive compliance date of a NESHAP.

NATA Update

The NATA uses data reported to the national emissions inventory and the TRI to calculate air toxics concentrations and estimate risks at the census tract level. U.S. EPA, as part of its efforts to provide additional data around EJ communities, has committed to provide more timely (e.g., annual) updates to its air toxics analysis that it has previously conducted at three-year intervals (the latest NATA available covers 2014 emissions).  The latest available air toxics data and analyses will be included in U.S. EPA’s updated EJ data and mapping tool that should be released in 2022.  The NATA results help state and local agencies (and the public) identify which pollutants and emission sources they may wish to study further to better understand any risks to public health from air toxics.  As we have mentioned before, facilities will want to carefully review air toxics emissions data being submitted to agencies to make sure that it is representative of their operations.

We also note that in advance of U.S. EPA’s updated analysis, ProPublica published its own assessment of cancer risks, identified air toxics “hot spots” around several EJ communities, and criticized U.S. EPA for not penalizing facilities that (alone or in combination) raise the cancer risk in an area above 1 in 1 million.  It will be interesting to see if U.S. EPA incorporates any changes in their air toxics assessment methodology with the 2022 data release or whether the ProPublica study prompts additional data gathering and analyses.

Looking Ahead

You can see that we expect a lot of activity around air toxics in 2022, both regulatory action and an updated national air toxics assessment.  The expected activity is likely to change how facilities are required to comply with certain rules and could necessitate additional data gathering in the form of testing, monitoring, or modeling to address regulatory or community concerns.  ALL4 will keep on top of the federal air toxics activity and update you throughout the year.  If you have questions or need assistance at your facility, please reach out to Amy Marshall.

Electronic Reporting Look Ahead // Jenny Brown

Electronic reporting is transforming the landscape of environmental compliance.  Electronic data reporting offers consistent formats, easier data transferability, and, predictably, increased visibility to stakeholders.  The days are disappearing when it was sufficient and advantageous to mimic a paper form in excel and print to PDF for final hardcopy submittal.

The United States Environmental Protection Agency’s (U.S. EPA’s) electronic reporting process begins with the Central Data Exchange (CDX).  From here, greenhouse gas emissions, discharge monitoring reports, risk management plans, toxics release inventories, as well as New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP) periodic reports, notification of compliance status reports, and performance test reports are submitted through various web-based platforms.  Data are then reviewed and subsequently utilized for numerous purposes such as enforcement, regulation development, and population in WebFIRE (an online, searchable database for air emissions factors).

U.S. EPA Electronic Data Workflow

Air Compliance Reporting

In May 2020, electronic reports, notifications, and applications for Part 49 (federal tribal minor NSR), 70 (tribal/state/local Title V) and 71 (U.S. EPA-issued Title V) were made available for electronic submittal in U.S. EPA’s Compliance and Emissions Data Reporting Interface (CEDRI).  In 2021, 109 Title V reports were submitted in CEDRI.  In 2022, if submitting a Title V Annual Compliance Certification (ACC) directly to U.S. EPA, the preferred method is now through CEDRI.  If submitting to a tribal, state, or local regulatory body with delegated authority, the delegated authority will continue to specify the preferred method.  U.S. EPA Region 4 has requested submittal via the CEDRI platform in some states (e.g., Georgia).  Georgia is still requiring a hardcopy submittal.  In other regions, such as U.S. EPA Region 6, state-specific electronic platforms are used for submittal of Title V reports and U.S. EPA is not expected to require use of the CEDRI platform for Part 70 submittals.  States that are not currently using an electronic platform for submittal of Title V reports may utilize CEDRI in future reporting years. As demonstrated by the Title V annual compliance report example, compliance data reporting format varies by state, and states often require hardcopies of the data electronically reported to U.S. EPA.

ALL4 recommends staying connected with your state regulators as U.S. EPA pushes for more electronic data submittals, which is further expanding U.S. EPA’s efforts to make data publicly available.  We have seen non-governmental organizations taking a deep dive into historic compliance records during the Title V renewal process.  The increased visibility of compliance and reporting data makes it important to ensure accuracy and consistency across various reporting obligations. As your data become more publicly available, you may also want to re-evaluate use of conservative emissions estimation methodologies and gather site-specific data to refine your emissions reports.

Annual Air Emissions Reporting

States have been transitioning to electronic reporting platforms for annual air emissions inventories.  More than 35 states and local regulatory bodies offer a web-based or other type of electronic reporting platform for submittal of annual air emissions inventories.  U.S. EPA’s development of the Combined Air Emissions Reporting System (CAERS) is intended to streamline the reporting of annual air emissions data to U.S. EPA and provide better continuity of reporting to industry users.  The CAERS also enables pre-population of toxics air pollutants (TAPs) and hazardous air pollutants (HAPs) reported to CAERS for Toxics Release Inventory (TRI) reporting in TRI-MEweb. The CAERS was piloted in 2020 in Georgia and the District of Columbia and in 2022 is expected to be expanded to include additional state partnerships.

U.S. EPA does not expect that all states will replace their current systems with CAERS, which may come as good or bad news depending on the agility and footprint of your business.  U.S. EPA expects some states, similar to Georgia, will completely replace their system with CAERS, but other states may interact with CAERS on the backend and maintain their current frontend, industry facing, platforms.  In 2022, we anticipate the expansion of CAERS partnerships to include Arizona, Minnesota, Montana, and Rhode Island as well as development of shared data workflows between CAERS and CEDRI and CAERS and U.S. EPA’s greenhouse gas reporting program.  Additionally, the CAERS development team plans to include a JSON file extension bulk upload feature in February 2022 when CAERS goes live in Georgia.  This feature will allow upload of a JSON file containing emissions data.  The JSON file is a common format associated with exchange of data between servers and web application and would streamline reporting for those with a centralized database for emissions calculations. Stay tuned!

It is challenging for companies, especially those with large footprints, to keep up with the various reporting requirements by state.  We find that EHS software solutions developers may provide automated report generation for federal reports, while automated state level reporting is less available due to the resources necessary to stay current. Nonetheless, forward-thinking companies are looking for ways streamline environmental reporting processes by capitalizing on the benefits of electronic data and electronic reporting platforms.  Final data entry and quality assurance is arguably the “the last mile problem” equivalent for electronically reporting environmental data. State reporting criteria can be complex and vary significantly from state to state.  Even if the underlying data and associated calculations are verified, data entry by inexperienced staff can result in inconsistencies and administrative errors as the same dataset is entered into multiple reporting systems. These challenges will remain in 2022 and beyond. ALL4 recommends considering some of the following as electronic reporting and even e-permitting continue to transform how we interact with our environmental data and regulatory bodies.

  1. Take action as a stakeholder. Consider partnering with U.S. EPA, state, and local regulatory bodies when electronic reporting or electronic permitting pilot opportunities are available.
  1. Advocate for allowance of electronic signatures to expedite certification and submittal processes for your facility when reports or applications are submitted.
  1. Look for opportunities to streamline reporting (e.g., CAER/TRI option). Keep in mind that taking advantage of these options will require development and submittal of reports earlier than in the past. For example, in Georgia the annual emissions inventory is due June 30, one day before the TRI report due date of July 1.
  1. Consider the following when evaluating efficiency tools: Does the tool improve data integrity? What happens if agencies modify their reporting platforms? Is there a time savings? Will there be continuity with staff turnovers and retirement?  ALL4 is tackling this problem head on with the development of ALL4’s Automated State-Specific Emissions Reporting Tool (ASSERT) subscription service. The tool automatically validates and uploads emissions data into state reporting systems. Check out our blog or contact us for a demonstration.

If you have any questions concerning your electronic reporting obligations or how we are seeing transformation of processes in this space, please reach out to Chuck Doyno at 678.293.9424 or cdoyno@all4inc.com or myself at 678-293-9432 or jbrown@all4inc.com. Thanks for reading!

Climate Impacts and Expanding CDP Reporting for 2022 // Daryl Whitt

Climate Change and Disclosures

In August 2021, the Intergovernmental Panel on Climate Change (IPCC) issued the first part of the Sixth Assessment Report, Climate Change 2021: The Physical Science Basis.  This report repeats the warning that the world needs to limit global warming to less than 1.5°C to avoid the worst impacts of climate change.  Based on the analyses presented in the report, the Earth has already warmed by between 1.1°C and 1.2°C since the beginning of the industrial revolution.  This report emphasizes that the world needs to halve its greenhouse gas (GHG) emissions and eliminate deforestation by 2030 to have any chance of staying below 1.5°C and preventing catastrophic changes to our climate and restoring the natural systems on which we rely.

Improvement Through Disclosure

Businesses are moving to make changes that will reduce GHG emissions and aid in preventing global warming of more than 1.5°C.  These actions can be seen through public climate-related disclosure, which significantly increased in 2021.  In 2021, more than one third of Fortune 500 companies have established climate change targets.  Also in 2021, 92 percent of the S&P 500 and 70 percent of Russell 1000 companies issued sustainability reports.  Climate related disclosure will continue to increase due to voluntary or mandated climate related disclosure requirements in coming years.  The UK, New Zealand, Singapore and Japan mandated carbon-related financial disclosure for publicly traded companies in 2021.  Canada and the U.S. are also working on figuring out climate-related disclosure requirements and further developments should be expected in 2022.

Disclosure through the CDP is one of the leading strategies businesses use to inform investors, customers and the public about their climate risks and actions and has significant backing from investors.  The CDP reports that in 2020, 590 investors with $110 trillion in assets and more than 200 large purchasers with $4 trillion in buying power supported CDP’s request for disclosure.  The data collected and published by CDP is used to develop global investment indices and ratings by Bloomberg, STOXX, S&P Global, Trucost, FTSE/Russell, MSCI ESG, ISS ESG, and Goldman Sachs, among others.  However, the CDP recognizes that reporting companies are not doing enough to manage climate risk and mitigate impacts with 75 percent of reporting companies scoring a “C” or “D” on their reporting.  Further, more than 3,700 companies did not report when requested to do so by investors or customers.

CDP’s 5-Year Plan

In late 2021, the CDP published a 5-Year Plan focused on accelerating the rate of change through increased disclosure, insight into performance, and driving action through accountability1.  The 5-Year Plan lays out a strategy for broadening the scope and deepening the reach of the CDP system.  The Plan identifies 8 key focus areas for increased disclosure over the next 5 years:

  1. Expanding the scope to cover planetary boundaries. The scope of reporting will be expanded to include:
    • Climate Change
    • Land
    • Resilience
    • Biodiversity
    • Waste
    • Oceans
    • Freshwater
    • Forests and
    • Food
  2. Tracking and scoring progress along the science-based transition journey, including:
    • Impact metrics and disclosure (through CDP)
    • Climate Risk and Governance disclosure (through TCFD/ISSB)
    • Target Setting (through SBTi)
    • Transition Plans and 5-year Action Performance
    • Disclosure and Audit of Plan Performance
  3. Increasing the influence of CDP’s system by expanding requests to include investors (equity), big buyers (procurement), banks (lending), private equity, stock exchanges, hedge funds, regulators, central banks, cities, and civil society; leveraging demand for environmental action to promote disclosure.
  4. Enabling increased policy ambition through increased disclosure. CDP can provide data to inform policy development and a mechanism for meeting future disclosure requirements.
  5. Using CDP’s platform to implement standards at scale. CDP data already supports the TCFD recommendations and is referenced across numerous regulatory requirements and stock exchange guidelines globally. CDP will now seek to enable the speedy implementation of the ISSB globally and at scale, to ensure a structured, complete and consistent dataset is provided to decision makers.
  6. Catalyzing and scaling place-based action. CDP’s system is unique because it serves as a nexus point where corporate, city, state and regional information are reported together.  By incorporating more location-based data into their platform and bringing new public authorities into the system CDP can catalyze the systematic scale-up of action and collaboration at a local level, including companies, cities, and states across all regions of the world.
  7. Enhancing transparency and reducing complexity with new technology. CDP will leverage technology including block-chain technologies, data scraping tools, satellite data, machine learning, artificial intelligence and smart buildings; among others to provide a flexible and evolving CDP system.
  8. Enhancing the social and governance metrics in the CDP platform. CDP will explore how to integrate social and governance metrics into its platform, focusing on where they overlap with environmental issues.

CDP Reporting for 2022

As a first step in the process of fulfilling its 5-year plan, CDP has just released documentation on the changes to the CDP Climate Change Questionnaire for 2022: Question Changes and Questionnaire Map: 2021 to 2022.

The changes that are being made in the 2022 questionnaire incorporate questions related to biodiversity and forests and water security.  The revisions include changes to the Core and Supply Chain questions, Sector-Specific questions, and Financial Sector questions to streamline reporting in some areas and expand reporting in others.

In the Core and Supply Chain section, the changes include adding 25 new questions including six related to biodiversity and six that apply only to RE100 companies.  A total of 12 questions have been removed, although seven of these are actually merged into other questions.  The total number of Core and Supply Chain questions has increased by 15 to 130 with these changes.

In the Sector-Specific sections of the questionnaire, not including the Financial Services Sector, three questions have been removed and seven questions have been modified, reducing the total number of questions from 139 to 136.  In these sections, the guidance for four questions has been modified to clarify and expand the requests.

The Financial Services Sector questions have seen the most significant changes for 2022.  In this section, seven questions have been removed and eight new questions have been added to the existing framework.  In addition, a new reporting section has been added for reporting on Forests and Water Security.  This new section includes 33 new questions.

The changes that are occurring in the CDP reporting will require reporting companies to re-evaluate their data collection and reporting efforts, potentially expanding beyond current metrics.  Companies should review these changes early, to ensure that they can meet the July 27, 2022 deadline for reporting.

ALL4’s ESG team can help your company plan for and execute a disclosure strategy including CDP engagement. In addition, we can help you consider and evaluate climate risk to your assets and operations and develop mitigation and adaptation plans.  Please contact Daryl Whitt for assistance with any of these tasks.

What’s Next with the PM2.5 NAAQS in 2022 and Beyond // Dan Dix

As I discussed in my July 2021 4TR article, the U.S. Environmental Protection Agency (EPA) is currently reconsidering the previous administration’s decision to retain the particulate matter with a diameter of less than 2.5 microns (PM2.5) National Ambient Air Quality Standards (NAAQS).  U.S. EPA completed the first step in the reconsideration process when it published the draft “Supplement to the 2019 Integrated Science Assessment for Particulate Matter” (Draft Supplement) in the September 30, 2021, Federal Register.  U.S. EPA took comments on the Draft Supplement and a public meeting was held in December 2021 where the Clean Air Scientific Advisory Committee (CASAC) panel peer reviewed the Draft Supplement.  The Draft Supplement includes similar recommendations as the original 2019 Integrated Science Assessment (ISA) for Particulate Matter (PM) indicating that there is evidence to support lowering the PM2.5 annual NAAQS from the current 12 micrograms per cubic meter (µg/m3)  to 10 µg/m3, and possibly (based on certain studies included in the ISA) to as low as 8 µg/m3.  In addition, the DRAFT Supplement supports retaining the current 24-hour PM2.5 NAAQS of 35 µg/m3 but suggests the possibility of lowering the 24-hour PM2.5 NAAQS to 30 µg/m3, primarily in the Western U.S.  Were such an approach to be taken it would be the first time a NAAQS had differing values in different regions of the U.S.

Based on the timing of the issuance of the Draft Supplement, U.S. EPA is still on track to propose retaining or lowering (with a much higher probability of lowering this time around) the PM2.5 NAAQS by Summer of 2022, following up with a final rule by Spring of 2023.  This means that there is still time for facilities who are considering projects that would increase PM2.5 emissions and potentially trigger air quality modeling requirements to obtain a permit under the existing PM2.5 NAAQS.  However, the door is closing fast.  Another reason to act quickly is because of the recent “Revised Draft Guidance for Ozone Fine Particulate Matter Permit Modeling” (Revised Draft Guidance) issued in September 2021 that I discussed in an October 4TR article.  The Revised Draft Guidance increases the possibility of triggering direct PM2.5 modeling requirements when as part of a project your facility triggers PSD review for nitrogen oxides (NOX) or sulfur dioxide (SO2), which are precursor pollutants for PM2.5. The Revised Draft Guidance requires that if any one precursor triggers PSD review, all precursors of secondary PM2.5 formation as well as direct PM2.5 must be evaluated, even if direct PM2.5 PSD review is not triggered.

How will these changes affect your facility in 2022 and beyond?  Given the difficulty to demonstrate compliance with the existing PM2.5 NAAQS through air dispersion modeling as a result of the already existing “headroom” issues between the ambient air quality and the NAAQS,  it will become even more important to identify both direct PM2.5 and precursor PM2.5 (SO2 and NOX) emissions reductions going forward.  PM2.5 emissions reductions can help avoid PM2.5 air quality modeling requirements or help you model below the significant impact levels (SIL) to avoid cumulative PM2.5 NAAQS and PSD increment modeling requirements.

If you have any questions about a potential project that includes PM2.5 emissions or want to know how close your area’s ambient PM2.5 concentration is to the current PM2.5 NAAQS, please contact Dan Dix at ddix@all4inc.com or at 610.422.1118.

Looking Ahead to Changes in State Programs // Lindsey Kroos

When it comes to complying with environmental requirements at your facility, it’s important to understand what applies at the Federal, state, and sometimes local levels. If you have facilities in multiple states, each facility may be (and most likely is) subject to different requirements. As a consulting firm that supports clients in every state, ALL4 is able to discern and communicate the many different approaches each agency takes for various regulations and policies. One way we do this is by tracking and disseminating state and local regulatory and policy updates to our staff. By understanding each agency’s activities, priorities, and initiatives, we also can see emerging trends. Many of these trends mirror Federal initiatives, such as those pertaining to Environmental Justice (EJ) and per- and polyfluoroalkyl substances (PFAS); indeed, many of the other Lookahead articles describe how each state handles them differently. Other trends are dictated by the U.S. Environmental Protection Agency (U.S. EPA), such as how state regulations address excess emissions that occur during Startup, Shutdown, and Malfunction (SSM) events. Here are a few trends that we have been watching and expect to continue throughout 2022.

SSM SIP Call – I wrote about this topic more than once in 2021, and you can expect to hear from me again in 2022. The State Implementation Plan (SIP) Call pertaining to SSM stems back to U.S. EPA’s 2015 policy on that issue, that SIPs should not contain exemptions or affirmative defense provisions for excess emissions during periods of SSM. U.S. EPA reversed that policy in 2020, and then reversed the reversal in 2021. The 2015 SIP Call was issued to 45 state and local agencies, 36 of which responded by submitting SIP revisions. Three states (Iowa, North Carolina, and Texas) had pre-2020 approval for their SIPs to contain SSM provisions, and their SIP Calls were withdrawn (however, these actions are being litigated). On January 12, 2022, U.S. EPA issued findings of failure to submit SIP revisions for 12 agencies. This action begins an 18-month clock for mandatory sanctions of a Nonattainment New Source Review (NNSR) 2-to-1 emissions offset requirement and restrictions on highway funding, and a 2-year clock for U.S. EPA to promulgate a Federal Implementation Plan (FIP), unless the agencies submit SIP revisions and U.S. EPA approves those revisions. 2022 is likely to bring regulatory proposals for multiple states’ SSM provisions in their SIPs.

Regional Haze – As with the National Ambient Air Quality Standards (NAAQS), Federal visibility standards for national parks and wilderness areas are also implemented through the SIP process.  The second implementation period for U.S. EPA’s Regional Haze Program is underway. SIP revisions were due to U.S. EPA by July 31, 2021; however, state agencies continue to be in various stages of development (as of mid-December 2021, U.S. EPA had only received 10 Regional Haze SIPs). U.S. EPA released a memo in July 2021 outlining clarifications for SIP revisions based on questions they had received and on observations from SIP revisions they had seen. We will see multiple regulatory proposals on states’ Regional Haze SIPs in 2022 and we expect that not all of them will be approved as drafted.

Air Toxics – While SIPs pertain to the NAAQS and visibility (and therefore U.S. EPA has a say in what they contain), state agencies may define and regulate certain air toxics at their discretion. There are hazardous air pollutants (HAPs) defined by U.S. EPA, but states may define those and other pollutants as air toxics subject to additional permitting, air quality modeling, or other requirements. Cleaner Air Oregon (CAO) is one example of a relatively recent state air toxics program that has required affected facilities to conduct air quality modeling and risk assessments, among other requirements. New Jersey is in the process of adding several toxics to their current program, including hydrogen sulfide (H2S), which has been considered for, but never officially added to the HAP list by U.S. EPA. Ethylene oxide (ETO) is a HAP that has gained and will continue to receive national attention, as well as in certain states that contain ETO-emitting industries.  We expect communities to ask states to do more to monitor and reduce air toxics emissions in 2022.  Reference Amy Marshall’s article above for more information on what’s coming on air toxics.

PFAS – Like ETO, PFAS continues to be a hot topic at the Federal and state levels. While U.S. EPA has launched various initiatives to test, monitor, and reduce the presence of these compounds in air, water, and land, many states have been, and continue to be more proactive and stringent. Michigan, New Hampshire, and New York are particularly active with state-specific policies and requirements in place for air, water, and other media, while many more states have programs under development that we can expect to hear more about in 2022.  More information on PFAS will be featured in our 2022 Look Ahead Part 4.

Electronic Permitting and Reporting – Data transparency continues to evolve as more Federal and state programs accept or require electronic reporting of emissions and compliance data. U.S. EPA’s Combined Air Emissions Reporting System (CAERS), intended to streamline various state and Federal emissions reporting systems, began as a pilot program in Georgia in 2020 and is expected to expand to other states (see Jenny Brown’s article above for more on CAERS). On the other hand, some state and local agencies continue to use their own programs, and even launch new programs, increasing the amount of reporting disparity across states. For example, the Allegheny County Health Department previously used the Pennsylvania Department of Environmental Protection’s (PADEP) annual emissions reporting program, but recently launched their own program. Annual compliance reports also continue to shift to electronic methods. U.S. EPA recently began requesting that Title V facilities in certain states submit their annual compliance certifications via the Compliance and Emissions Data Reporting Interface (CEDRI); however, some states may still require hardcopy reports. Lastly, some states like South Carolina are piloting e-permitting programs in 2022, whereas states like Texas already require online submittal of permit applications.  As mentioned above, we have experience across almost every state, so we can help you navigate the different systems and understand what is changing in your state.

Environmental Justice – All of the topics mentioned here relate to EJ, which continues to be a driving factor for all aspects of environmental permitting and compliance at the Federal and state levels. While U.S. EPA has announced various EJ initiatives, states are proceeding with existing or new policies of their own. Many state EJ initiatives are not formal regulations, although California and New Jersey have made significant steps towards establishing regulatory requirements.  We are tracking EJ activity in all 50 states – see Rich Hamel’s EJ Lookahead article for more information.

This article highlights just some of the major environmental considerations that can vary by state, but by no means covers all of them. NAAQS attainment and redesignation, climate change, and permitting requirements and procedures are all topics that could also be discussed here. When no single state operates the same way on a multitude of topics across all environmental media, it is important to understand the differences. We’ll continue to stay up to date and share how states address these and other topics throughout the year. We can also help you look across different states to compare environmental requirements when you are in the process of siting a new facility or deciding where to do a project.  Please contact Lindsey Kroos or your ALL4 Project Manager for more information on what’s going on in your state.

View Part 4


1CDP, Accelerating the Rate of Change, CDP Strategy 2021-2025

Cal/OSHA Revises COVID-19 Prevention Emergency Temporary Standards

The California Occupational Safety and Health Standards Board (OSHSB) is the standards-setting agency within the California Division of Occupational Safety and Health (better known as Cal/OSHA).  On December 16, 2021, the OSHSB adopted revisions to the COVID-19 Prevention Emergency Temporary Standards (ETS) to include the latest recommendations from the California Department of Public Health. The revisions will take effect on January 14, 2022, and will be effective through April 14, 2022.

The following is a summary of changes to the ETS. Note that this summary is not an all-inclusive description of the changes.

  • Under the Cal/OSHA ETS, face coverings are required for all non-fully vaccinated employees; however, the California Department of Public Health order requires face coverings in all indoor public settings, regardless of vaccination status, through February 15, 2022.
  • Face coverings are defined as a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers (i.e., fabrics that do not let light pass through when held up to a light source).
  • A COVID-19 test is defined as a test approved in an Emergency Use Authorization (EUA), by the United States Food and Drug Administration (FDA) to detect current infection with the SARS-CoV-2 virus (e.g., a viral test); note that the definition of a test does not include those that are both self-administered and self-read (home test) unless observed by the employer or an authorized telehealth provider.
  • Allows for an exemption to the definition of worksite, to exempt locations where a worker works by themselves without exposure to other employees.
  • Requires employee notification to ALL employees, including contractor and employees of other employers, who were on the premises at the same time as the COVID-19 case during the high-risk exposure period. A high-risk exposure period is defined as 2 days prior to COVID-19 case testing positive or from first exhibiting symptoms through 10 days post COVID-19 case testing positive or first exhibiting symptoms.
  • When there has been a COVID-19 case in the place of employment, COVID-19 testing must be provided at no cost, during paid time, to all employees of the employer who had close contact in the workplace to both vaccinated and unvaccinated employees.
  • If an employee cannot wear a face covering due to a medical condition, mental health condition, or disability, they must wear a non-restrictive alternate such as a face shield with a drape on the bottom. If the employee is unable to wear a non-restrictive alternative, the employee can work at the worksite without a face covering as long as they maintain 6 feet of physical distancing from other persons, and either be fully vaccinated or test weekly for COVID-19.
  • Employees who are fully vaccinated are not required to be excluded from the workplace after close contact with a COVID-19 case if they wear a face covering and maintain six feet of physical distance from others at the workplace for 14 days following the last date of close contact.
  • Employees can return to the workplace if they test negative for COVID-19 with a test taken 5 days after the last known close contact, and the employee wears a face covering and maintains six feet of physical distance from others at the workplace for 14 days following the last date of close contact with the COVID-19 case.

ALL4 is a full service environmental and environmental health consulting firm specializing in health and safety plan issues.  We are able to support you with COVID-19 program development and COVID-19 training.  If you have any questions on how the ETS or other health and safety regulations affect your facility, please contact Bruce Armbruster at barmbruster@all4inc.com.

 

 Additional Resources:

Cal/OSHA News Release >
California OSHSB ETS Page >

2022 Look Ahead – Part 2

The 2022 Look Ahead is a multi-part series consisting of 20 articles to celebrate ALL4’s 20th anniversary.

View Part 1

Toxics Release Inventory (TRI) – How to Prepare for 2022 Recordkeeping and Reporting // Sheryl Watkins

Since its creation in 1986, toxics release inventory (TRI) reporting has expanded through the addition of chemicals and industry sectors that are subject to the rule.  Facilities that are subject to the rule must submit annual reports by July 1 of each year, covering the previous calendar year.  Several chemicals have been added to the TRI list for reporting in the past 10 years, including hydrogen sulfide beginning in 2012, ortho-nitrotoluene in 2014, six nonylphenol chemicals in 2015, 1-bromopropane in 2016, hexabromocyclododecane in 2017, nonylphenol ethoxylates category in 2019, and 175 per-and polyfluoroalkyl substances (PFAS) in 2020/2021. To put it in perspective, for calendar year 2019, approximately 23,000 facilities reported to the TRI for total annual releases of all chemicals to the air, water, and land (onsite and offsite annual disposal of waste) of over 30 billion pounds.

There are several additional revisions to the TRI reporting requirements.  For example, U.S. EPA is expanding TRI reporting requirements to include the following industry sectors:

  • 29 facilities that release and otherwise manage ethylene oxide and ethylene glycol produced using ethylene oxide. U.S. EPA added these 29 facilities because of concerns regarding ethylene oxide’s potential harmful effects on human health, the environment, and potential exposure to workers in facilities that use ethylene oxide. U.S. EPA is also concerned about the toxic effects of ethylene oxide in surrounding communities, including historically underserved communities adjacent to these facilities, and especially the potential for toxic effects in children. In making its determination for these 29 facilities, U.S. EPA considered a variety of ethylene oxide data and believes the 29 facilities selected use the highest amounts of ethylene oxide in the contract sterilization sector and are among those facilities that do not currently report to TRI.
  • Natural gas processing facilities. Natural gas processing facilities that primarily recover sulfur from natural gas are already covered by TRI, but this change will expand coverage to include all natural gas processing facilities that receive and refine natural gas. U.S. EPA estimates that at least 321 additional natural gas processing facilities meet the TRI reporting criteria that have not previously reported (i.e., employee threshold of 10 full-time employees or equivalent and the activities threshold, which includes the manufacture, processing, or otherwise use of at least one TRI-listed chemical above applicable threshold quantities). Note: Facilities primarily engaged in natural gas extraction (e.g., exploration, fracking, etc.) are not included.

The facilities mentioned above should begin tracking their chemical activities, releases, and other waste management quantities in January 2022 and, if appropriate, prepare TRI data beginning in 2023.  Information collected each year should be evaluated for reporting and documentation, even if reporting thresholds are not triggered.

As noted above, U.S. EPA added certain PFAS to the TRI list of reported chemicals, starting for calendar year 2020 reporting. As part of U.S. EPA’s PFAS Strategic Roadmap released in October 2021, you can expect the following changes regarding PFAS chemicals this Spring that, if promulgated, will be effective for calendar year 2022 reporting (i.e., submit data by July 1, 2023):

  • Categorize the PFAS on the TRI list as “Chemicals of Special Concern.”
  • Remove the de minimis eligibility from supplier notification requirements for all “Chemicals of Special Concern.”
  • Continue to update the list of PFAS subject to TRI, with additional rulemaking expected to add more PFAS to TRI in 2022, as required by the 2020 National Defense Authorization Act (NDAA).

Removal of the current PFAS exemptions and exclusions is expected to enhance the quality and quantity of PFAS information collected through TRI and these changes are expected to expand the number of facilities that will need to report on PFAS chemicals.  Two potential implications of this update are that facilities will no longer be able to rely on supplier certifications of de minimis amounts reported in the safety data sheets and facilities will not only need to quantify all applicable PFAS usages, but will also need to identify what specific PFAS compounds are contained in raw materials or products.  Stay tuned…

As you know, the TRI has been getting more visibility from the public and more attention from the U.S. EPA in recent years.  A higher level of data availability leads to a higher level of data scrutiny.  We expect this to continue to be the case, especially with U.S. EPA’s current focus on integrating environmental justice considerations into their plans and actions. For example, the decision to add the 29 facilities in the contract sterilization sector was based in part on the impact of ethylene oxide releases to communities with potential environmental justice concerns.  In addition, with continuing enhancements around data gathering, data availability, and integration of data across platforms (e.g., EJSCREEN, a U.S. EPA tool that combines environmental and demographic indicators in maps and reports), the accuracy of the data reported to states and U.S. EPA is of the utmost importance. The TRI website has been overhauled over the years to make it easier for reporters and the public. If you would like to check out the latest data and tools, visit the following link: https://www.epa.gov/toxics-release-inventory-tri-program/tri-data-and-tools.

So, what else can you do to prepare for TRI reporting this year?  A few more items are:

  • As the TRI requires that facilities use the “best readily available data” in reporting annual releases, and there is more data being gathered and published each year, facilities should evaluate the underlying basis for the data reported to the TRI each year and update, as necessary, to utilize any new site-specific information and any new information published or reviewed by U.S. EPA or by industry-specific technical groups.
  • Consider how you can document positive impacts that you have made with respect to pollution prevention as the data submitted through the TRI is also a vehicle to track industry progress in reducing waste generation and moving towards safer waste management alternatives. The TRI serves as a tool for identifying effective environmental practices and a place to highlight pollution prevention successes, especially in source reduction and recycling and to a lesser degree in energy recovery and treatment.
  • Compare the reported releases and underlying data for calculations to other facility submittals:
    • Annual Air Emissions Inventories;
    • Discharge monitoring report (DMR) for releases to water;
    • Hazardous Waste Reports;
    • Solid waste reports;
    • Tier 2 reporting; and
    • Any other reports to agencies for 313 chemicals and reports that use production or energy data.

If you need help preparing your TRI or other compliance reports please contact Sheryl Watkins or your ALL4 project manager.

For 2022, U.S. EPA Continues to Focus on NPDES Significant Non-Compliance // Paul Hagerty

The National Pollutant Discharge Elimination System (NPDES), administered by the U.S. EPA, is an enforcement and permitting program which regulates point source and non-point source discharges of pollutants to state and U.S. waters.  There are approximately 46,000 individually NPDES-permitted facilities in the U.S. according to U.S. EPA, and it is estimated that of these facilities were in significant noncompliance (SNC) at the beginning of fiscal year (FY) 2018.  Although NPDES permit violations can be minor and administrative in nature, such as untimely or inaccurate reporting of monitoring data, it is the SNC violations (e.g., significant exceedances of effluent limits) that have drawn the recent and specific attention of U.S. EPA.

Beginning in FY 2018, U.S. EPA’s National Compliance Initiatives (NCI) have included a goal of reducing by 50 percent the amount of SNC by the end of FY 2022.  Why then, in the context of a “2022 Lookahead” article are we talking about an initiative that has been in place since FY 2018?  Three reasons – First, U.S. EPA in 2021 elected not to continue other NPDES NCIs (e.g., sewage, stormwater and animal waste), returning them back to the “core enforcement program.”  Second, the SNC NCI was modified from the prior cycle and given priority attention.  And third, we’re closing in on the end of FY 2022 (September 2022) and the 50 percent reduction has not been achieved yet.

What does this mean for the regulated NPDES community in 2022?  Well, if you’re already in SNC, you’re likely already in communication with the regulators to achieve compliance.  And if you’re not in SNC, you should strive to remain there.  This should include making sure you conduct your monitoring obligations in accordance with the permit conditions and submit accurate and timely discharge monitoring reports (DMRs) so as not to bring attention to your facility.  Regardless, based on the increased focus U.S. EPA is putting on NPDES and the NCI, you might want to anticipate additional regulatory scrutiny (e.g., more frequent NPDES site inspections) through FY 2022.

Please contact your ALL4 project manager or Paul Hagerty with questions.

Ambient Air Quality Monitoring Lookahead // Dustin Snare

In 2022, ALL4 expects Federal Reference Method (FRM) and Federal Equivalent Method (FEM) air quality monitoring to remain the standard for supporting air quality decision making, policymaking, and evaluation of attainment status for National Ambient Air Quality Standards (NAAQS) at the state and Federal levels.  However, advancements in technology and lower cost instrumentation are aiding the expansion of community-led monitoring networks that are starting to aid in environmental justice efforts.  Ambient monitoring networks allow for air quality to be evaluated on a smaller resolution and can help pinpoint local impacts or lead to further studies.  As a result of the citizen-science monitoring networks, a tremendous amount of data is being collected.

Community organized low-cost ambient monitoring networks are routinely relying on FRM monitors to be located within the monitoring grid to quality assure the low-cost monitor data and apply correction factors for any data trends analyzed.  Ambient monitoring networks can be used in conjunction with local air quality modeling to support air quality forecasting efforts and for predicting pollutant concentrations in the monitoring network region.  Ambient monitoring networks could also be used as indicators for where FRM monitoring may need to be sited.

The scientific community is creating measurement instruments for pollutants we didn’t have the capability to measure even a few decades ago (example: Polycyclic Aromatic Hydrocarbons (PAHs)).  As measurement capabilities become enhanced, so does the availability of affordable monitoring instrumentation.  Citizen-science air quality monitors – monitors that are priced to be purchased by the general public and are widely available with little direction required for setup, use, and data collection – are starting to become a household item and is projected to continue moving that way.

As an example, California enacted a statewide program (Assembly Bill 617) in 2017 to reduce air pollution in communities that are disproportionately impacted by air pollution.  The program relies on community partnerships for monitoring air quality.  The objectives of Assembly Bill 617 include: better understanding of emissions sources, establishing a baseline of air pollutant concentrations, support development and implementation of emissions reductions strategies, and making the air pollution data accessible to the public.  In addition to statewide programs, local and Federal funding is available to enhance ambient air monitoring in communities with health outcome disparities from pollution (environmental justice areas).  Just recently the United States Environmental Protection Agency (U.S. EPA) announced a grant competition for a total of $20 million of funding from the American Rescue Plan.  Applications for the grants are due in February of this year and are expected to be awarded in the summer of 2022.  Community partnerships like the program established in Assembly Bill 617 and agency and local/Federal organization funding for communities such as U.S. EPA’s air quality modeling grants are paving the way for environmental justice area monitoring efforts in the future for not only California, but also the rest of the nation.

ALL4 has experience using the low-cost monitors and can assist facilities in cases where community monitoring is taking place near a facility by reviewing open-source  data to understand what the community is seeing.  ALL4 has conducted co-located FRM and low-cost monitoring for sites that had small community-led monitoring networks set up around them.  We compared the representativeness of the data from the low-cost monitors and background concentrations to site-specific FRM monitor data.  If your facility is considering implementing an FRM/FEM monitoring network, consider starting with a low-cost sensor network to assist in determining if FRM/FEM monitoring is worthwhile and/or to assist in the correct site and location for FRM/FEM instrumentation.  We can also see ambient monitoring becoming more prevalent to address community concerns about projects facilities are planning to permit and in response to more stringent ambient air quality standards.  Please contact Dustin Snare for more information on our ambient monitoring capabilities and to discuss how we can help you with your next project.

Looking Ahead at the Role of Data Analytics in Continuous Monitoring // Aditya Shivkumar

Over the last decade, industries have embraced data-centric approaches in some form to grow and succeed. The data revolution has given rise to a vast number of tools and technologies to help solve complex business and engineering problems. Companies and institutions continue to see benefits of the concept of ‘What is measured, gets improved’ in their decision-making framework. The application of measured data continuously expands especially with the increase emphasis on sustainability and Environmental, Social, and Governance (ESG) objectives.

We see three main factors fueling the growing reliance on data-driven practices within the air quality industry, specifically for entities with continuous monitoring systems (CMS) that already possess a data collection system with large amounts of data. The main factors for the use of CMS data include compliance demonstration and reasonable inquiry, policy making, sustainability reporting, and ESG.

The primary factor is regulatory-driven and relates to the concept of ‘reasonable inquiry.’ Federal and State rules require that the responsible official certify the truth, accuracy, and completeness of the information submitted based upon information and belief formed after “reasonable inquiry.” The responsible official must document that a comprehensive and rigorous program is in place to determine the accuracy of the information reported to the agencies. Outliers, sparse or bad data, and excessive monitoring downtime are some of the key triggers for an agency audit. How do you demonstrate that your facility has systematic processes that fulfill the criteria of ‘reasonable inquiry’? With automated data verification and predictive metrics, owners can effectively show that they have systems in place to check, verify, and confirm the representativeness and quality of their monitored data and as such feel more confident signing the certification of accuracy.

The second reason behind companies becoming more data-savvy is the increasing role of data in policy making. Actual data are very helpful in the current regulatory environment for ground truthing claims about cost and benefit of policy changes. Newer air quality and climate rules have added monitoring and reporting requirements. Data reported by facilities will play a bigger role in the permitting process. To promote transparency and accountability, modern policymaking uses systems that require collecting larger and better data sets to show progress. Clean Air Markets Division (CAMD) is ‘re-engineering’ its data management and reporting systems with enhanced public accessibility and upgrades to allow better integration with other data mapping and reporting tools such as the Power Plants and Neighboring Communities mapping and graphing tools and the Greenhouse Gas Reporting Program (GHGRP).The information reported by facilities is now available to a wider audience using the click of a mouse and this information is only as good as the underlying data collection and verification process.

The third factor is the growing need for companies to demonstrate their efforts toward environmental sustainability or other Environmental, Social, and Governance (ESG) objectives required for consumers, investors, and creditors. In fact, sustainability and ESG will most likely be the primary driver for investment into increased monitoring and data collection in the near future.  Typically, monitored emissions and process data are directly fed into sustainability reports. Data-backed key performance indicators (KPIs) and data visualizations can deliver insights and provide an auditable means to track progress against key ESG objectives.

Applications of data analytics in continuous monitoring:

Continuous monitoring systems collect large amount of data. This data can be underutilized and be harnessed to make your static systems dynamic and forward-looking.

Proactive compliance systems: Predicting emissions levels under different operating scenarios will allow facilities to plan ahead and alter their course of action prior to a potential noncompliance situation. Identifying inconsistencies in real-time monitored data serves as an early warning indicator. For instance, consider a power plant that has a regulatory driven requirement to monitor quality-assured emissions data. A faulty component introducing bias in the data can go undetected for days or months, resulting in invalid data, which may lead to penalties for noncompliance. Such situations can be avoided by utilizing process-specific early warning indicators or anomaly detection systems using historical and real-time data.

Equipment reliability:  Monitoring systems are complex combinations of components and connections. Equipment fatigue prevents the equipment from functioning at its optimum under set conditions. By applying the principles of reliability engineering and statistics, you can gauge the health of your monitoring equipment, predict equipment problems, and take preemptive action before catastrophic failures. Identifying the deterioration of equipment functionality or performance allows owners to replace/repair the equipment before failure while maximizing its useful lifespan.

Dashboarding and KPIs: Monitored data can be exploited to identify historical trends and establish baseline performance metrics. Combining these metrics into a dashboard will allow personnel to see the compliance status or system performance in one quick glance.

The upside of using data analytics in continuous monitoring:

Owners can realize a high return on investment on utilizing data – or, rather, insights from data – to inform decision making.

Mitigate compliance risk: Identifying compliance risks before they materialize helps prevent noncompliance and associated costs. Auditing your monitoring system periodically against regulatory requirements and building proactive data quality checks ensure the data collected are reliable.

Representativeness and accuracy: Using modern data analysis methods (including the ever-growing application of Artificial Intelligence or AI) to check for inconsistencies, outliers, and suspect data is cost-effective and serves as an additional step in achieving ‘reasonable inquiry.’ Monitored data may be used to justify appropriate permit limits and operational flexibility.

Operational efficiency: Insights from monitored data can also be used to drive process improvements that may lead to cost savings and increased efficiency. For instance, optimizing emissions controls based on real monitored data as opposed to design parameters determined under ideal conditions can reduce operating costs and increase equipment lifespan.

Future proofing and staying ahead of the competition: Companies that adopt data-driven processes are better prepared to thrive in an evolving regulatory environment that is increasingly relying on data for policy changes.

How to get started?

Do not leave the past behind: Start looking at your historical data and monitoring system setup and evaluate them against your regulatory mandates and corporate policies. Conducting third-party audits allow facilities to look at their program through a ‘fresh’ lens and address any vulnerabilities to continually improve the effectiveness of the compliance system.

Understand the present: Tools and technology for turning data into insights have grown exponentially. Can your current system identify issues in real-time (or near real-time)? Are you comfortable with the level of ‘reasonable inquiry’ undertaken to certify your data are accurate? Do you have automated tools to provide quick insights into emissions trends and operating performance? Do you have documentation of processes and procedures for checking the accuracy of your data? If you are unsure about any of these questions, it might be time to evaluate and upgrade your program.

Prepare for the future: Using modern tools and data-driven methods, you can perform ‘What if?’ analyses. Whether it is preparing for stricter regulatory limits, showcasing the impact of your sustainability initiatives or building a next-generation facility using AI, investing in a data centric system will help keep you ahead of the curve.

For more information regarding the benefits of data analytics and how it can support current compliance, operational, sustainability, and ESG initiatives, contact Aditya Shivkumar at 281.201.1239 or ashivkumar@all4inc.com.

What Doug Parker’s Confirmation to Head OSHA Means // Mike Jackson

Doug Parker was confirmed on October 25, 2021, with a 50-41 vote along party lines, by the United States Senate as Assistant Secretary of Labor for Occupational Safety and Health (OSHA). It has been almost five years since the Senate has confirmed a leader for this vital department.  Parker takes over for acting OSHA administrator Jim Frederick.

“I’m very excited,” Jordan Barab, the deputy assistant secretary of OSHA for 8 years starting in 2009, had mentioned to news sources.  “Doug will be a strong advocate for worker safety and health, and he has the experience and expertise to lead OSHA through these challenging times.”

U.S. Sen. Chuck Schumer (D-NY) was on the house floor the Monday after the nomination and said of Parker “he has a proven track record of protecting everyday Americans in the workplace, which is more important now than ever before.”

Parker had served as head of the California Division of Occupational Safety and Health since September 2019. Before heading Cal/OSHA, Parker was the executive director of Worksafe – a legal services provider in Oakland, CA. Parker held previous roles during the Obama administration as deputy assistant secretary for policy in the Department of Labor’s (DOL) Mine Safety and Health Administration (MSHA) and focused on worker health and safety issues as a member of the current administration’s transition team.

What can we expect from observing Parker’s previous employment with Cal/OSHA?

Doug Parker is expected to lead the federal department the same fashion as Cal/OSHA, with more aggressive enforcement.  There will be a greater risk for small businesses under the Biden administration’s “enhanced enforcement efforts” due to an occupational deficiency of expertise, time, and resources that are needed to keep up with intricate OSHA regulations.  There are numerous small manufacturing, construction, and industrial companies, with frequent safety hazards classified as major, that struggle to budget for a full-time, competent safety manager.

This lack of resources leaves companies in a continuous state of non-compliance and opens them to failed inspections and huge fines and penalties that the administration has hinted will only increase as more legislation is passed.  This strong enforcement precedent should be a warning bell for small business owners and corporations who don’t prioritize safety or have sufficient safety programs in place.  Employers should prepare for more aggressive policies by confirming that their safety and health programs are compliant with rules that, while not historically enforced, are still in place and regulate American facilities.

If we look to Cal/OSHA as a blueprint for Parker’s priorities, items that may be prioritized include California’s Injury and Illness Prevention Program (IIPP), ergonomics standards to address repetitive motion injuries, and workplace violence prevention in healthcare.

Health and safety issues are at the forefront of policy making, and companies need to be aware of how this could affect their business operations moving forward.  Do you have questions about OSHA or general Occupational Health and Safety?  Please reach out to Sheryl Watkins at swatkins@all4inc.com.

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2022 Look Ahead

This is a multi-part series consisting of 20 articles to celebrate ALL4’s 20th anniversary. Stay tuned for part 2 coming soon!

Introduction // Colin McCall

I am excited and honored to once again introduce ALL4’s annual Look Ahead.  Part of forecasting the year ahead is looking backwards to see how environmental, health, and safety (EHS) programs have evolved, and which patterns will continue, evolve, or even accelerate into the future.  A few things are very clear as we survey the landscape:

  • The concept of EHS programs that focus exclusively on compliance is behind us. EHS programs have become a critical part of a company’s role as corporate citizens in their interactions with their local communities and beyond.  Environmental, Social, and Governance (ESG) programs are being implemented accordingly, and companies are setting goals beyond just compliance.
  • Environmental Justice (EJ) continues to be among the top priorities of the Federal administration, making outreach to local communities and educating your neighbors on your operations a top priority.
  • The ability to analyze and present EHS and ESG data in a way that clearly illustrates improvements and successes to a broad group of public stakeholders becomes more important every year.

ALL4 is excited to be celebrating our 20th anniversary of growing with our clients this March.  To commemorate the occasion, we are publishing 20 Look Ahead topics throughout the month of January.  Several of the topics hit on strategies related to the topics above – ESG, EJ, and digital and communication strategies that help with stakeholder communications and the retention of legacy knowledge.  Of course we will also cover other core EHS strategy topics related to emerging contaminants, climate change, compliance, efficiency in your EHS program, and the ability to navigate permitting in a way that helps companies grow.  Through our growth over these past 20 years, we have added consultants to our team with expertise in all of these areas.  I hope you will enjoy reading these updates from them.  Thanks always to our clients and partners, and we look forward to what this year has to bring!

In this edition:

How Might Air Permitting Change in 2022 and Beyond? // Amy Marshall
WOTUS Look Ahead // Karen Thompson
SPCC Plans – Will U.S. EPA Propose an Expansion of Applicability for 2022? // Paul Hagerty
Environmental Justice // Rich Hamel
ESG Evolves and Escalates as Climate and Other Pressures Mount // Connie Prostko-Bell


How Might Air Permitting Change in 2022 and Beyond? // Amy Marshall

There are a multitude of state and federal policy and regulatory actions that could change air permitting, as we know it, going forward.  Primarily, the current U.S. Environmental Protection Agency (U.S. EPA) administration has elevated environmental justice (EJ) as one of its top priorities and many states are developing policies, or even regulations, to address EJ.  Another article in ALL4’s 2022 lookahead series addresses the anticipated real world EJ activity in 2022.  However, from an air permitting perspective, the implications of EJ must be considered in the timeline, scope, communications, and maybe even the design and engineering of an air permitting project.  While EJ tops the list of impactful 2022 air permitting changes, there are several other regulatory and policy developments to watch for including:

  • Potentially lower National Ambient Air Quality Standards (NAAQS) for fine particulate matter and ozone;
  • More stringent classifications for certain ozone nonattainment areas;
  • More stringent modeling requirements for projects triggering Prevention of Significant Deterioration (PSD) Review;
  • Potential changes to state minor new source review (NSR) programs to enhance public and U.S. EPA involvement;
  • Potential revocation of existing favorable air permitting policies and regulations;
  • Increases and/or enhancements to monitoring requirements under Title V permits as they are renewed.

U.S. EPA is currently reconsidering the NAAQS for fine particulate matter (PM2.5) and ozone and is likely to propose lower standards for at least PM2.5 in 2022.  The prior administration declined to lower either standard, but the review committees have been re-chartered and it is likely that the annual and even the daily PM2.5 NAAQS will be lowered.  The lack of headroom between background PM2.5 concentrations and the annual PM2.5 NAAQS will make it exceedingly difficult for facilities located in many areas of the country  to successfully model PM2.5 under a more stringent NAAQS.  A pre-project ambient monitoring study may or may not show that modeling over-predicts a facility’s impact on ambient concentrations at its fenceline, but will certainly delay a project timeline if an air dispersion modeling demonstration is not successful.  U.S. EPA has also recently published revised draft modeling guidance suggesting that facilities must model PM2.5 emissions if PSD is triggered for nitrogen oxides (NOx) or sulfur dioxide (SO2).  In short, look for modeling demonstrations for certain air permitting projects (or permit renewals) to be more challenging moving forward.

ALL4 is also tracking several geographic areas that are being reclassified to a more stringent nonattainment designation, which will change air permitting thresholds and requirements.  Our Texas lookahead article covers impacts in two such areas and our Kentucky staff recently published a blog on upcoming changes to Louisville Metro air regulations.

Many state agencies (including several in the Southeast) currently do not require certain types of minor NSR permit applications to undergo public review and do not provide them to the U.S. EPA for review.  U.S. EPA has indicated (for example, in a September 2021 presentation to the Association of Air Pollution Control Agencies) that they are interested in looking at ways to revise regulations around these programs such that more minor NSR permits undergo public and U.S. EPA review.  “Enhanced” minor NSR regulations and permit review requirements  will mean potentially longer permitting timelines for “smaller” projects and the risk of adverse public and U.S. EPA comments that may impact project design or even whether a project is approved.

The regulated community has been using U.S. EPA’s vast collection of permitting guidance, precedent, and interpretive memoranda around PSD/NSR permitting since the inception of the NSR regulations.  As we all know, the last administration issued several favorable (and practical) regulatory interpretations and rules.  The current U.S. EPA is reviewing certain actions initiated by the previous administration, such as the 2017 Pruitt Projected Actual Emissions memo, the Meadowbrook common control memo, and the Limetree interpretations around reactivation and project aggregation, which could result in important changes to current air permitting policy.  Revocation of these memos will likely make air permitting of certain projects more difficult, and could result in agencies questioning a facility’s projected actual emissions and instead adding PSD avoidance limits for projects to permits.  Another controversial policy change that was also promulgated as a regulatory change in the prior administration is Project Emissions Accounting (PEA), which allows facilities to take credit for decreases related to a project in Step 1 of the PSD applicability analysis instead of doing a full Step 2 netting analysis.  Although U.S. EPA denied a petition to revoke the PEA memo and reconsider the PEA rule, it is considering revisions to the PEA rule that will likely be proposed in late 2022.  Any revisions are likely to cover the items identified in the petition: how to define a project, how to make sure the Step 1 reductions are in fact related to the project, and how to ensure that the reductions will actually occur.  A revocation of the PEA rule could make air permitting of certain types of environmentally beneficial projects more difficult and time consuming.

Finally, public interest in Title V permit renewals is high, and even if there are not EJ concerns, public and/or U.S. EPA comments on a draft Title V renewal permit could result in additional monitoring, recordkeeping, and/or reporting requirements to provide more certainty that a facility is complying with emissions limits.  ALL4 continues to track policy and regulatory developments around EJ, air permitting, and NAAQS, so stay tuned for more news on these topics in 2022!  Contact Amy Marshall or your ALL4 project manager for more details.

WOTUS Look Ahead // Karen Thompson

2022 will be an active year for changes under the Clean Water Act (CWA).  The new Waters of the United States (WOTUS) definition is out for public comment until February 7, 2022.  The United States Environmental Protection Agency (U.S. EPA) will be holding public hearings January 12, 13, and 18 to take public comments.  The proposed definition reverts back to the 1986 definition with updates reflecting Supreme Court decisions (referred to as pre-2015 rules).

Pre-2015 Regulatory Definition and court decisions that are being proposed in the new rule include seven elements from 40 CFR 230.3(s).

“The term waters of the United States means:

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

  1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
  2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
  3. Which are used or could be used for industrial purposes by industries in interstate commerce;

(4) All impoundments of waters otherwise defined as waters of the United States under this definition;

(5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;

(6) The territorial sea;

(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.”

The new rule also incorporates guidance from the Rapanos v. Untied States and Carrabelle v. United States (2007 and 2008 guidance), and Solid Waste Agency of Northern Cook County (SWANCC) v. United States (2001 and 2003 memorandums).

We are likely to see comments from industry, trade associations, economic development and non-governmental organizations.  The pre-proposal public meetings were well attended by these groups, and comments received then will likely be submitted during the official public comment period. We will have to wait and see how these comments are taken into account in the final definition.

Look for U.S. EPA to respond to comments and finalize the proposed definition this summer or fall.  In the meantime, the Army Corps of Engineers and U.S. EPA will continue to operate under this revised definition under executive order.  If you have projects that involve building in or disturbing WOTUS, plan to continue working under pre-2015 rules.  ALL4 will continue to track CWA developments such as the WOTUS definition – please contact Karen Thompson for more information.

SPCC Plans – Will U.S. EPA Propose an Expansion of Applicability for 2022? // Paul Hagerty

On March 12, 2020, the U.S. Environmental Protection Agency (U.S. EPA) entered into a Consent Decree with the Natural Resources Defense Council (NRDC) regarding U.S. EPA’s alleged failure to comply with certain provisions of the Clean Water Act (CWA).  Specifically, NRDC alleges that section 311(j)(5)(A)(i) of CWA compels U.S. EPA to require an owner or operator of a non-transportation-related onshore facility to prepare a plan which details the planning and actions necessary to respond to a worst-case discharge of hazardous substances.  Although 40 CFR §112 addresses planning and response actions specifically related to oil via preparation of a Spill Prevention, Control and Countermeasure (SPCC) Plan, SPCC Plans do not apply to hazardous substances.  In effect, NRDCs action and the resulting Consent Decree will compel U.S. EPA to evaluate this perceived gap and may result in a significant broadening of materials and conditions subject to SPCC planning.

Why is this topic germane to the “2022 Lookahead” series?  The Consent Decree sets certain milestones and timelines, the first of which is coming due in early 2022.  Specifically, no later than 24 months after the effective date of the Consent Decree (March 12, 2020), U.S. EPA is required to sign a notice of proposed rulemaking (NPR) pertaining to this issue – by March 2022.

What happens after March 2022?  Assuming there aren’t any delays with the process (but there always are…), the U.S. EPA must no later than 30 months after publication of the NPR sign a notice taking final action on the NPR (essentially a Final Rule).  From a timing standpoint, this would be late 2024.

What does this mean for the regulated community in 2022?  Well, if the U.S. EPA NPR signals that hazardous substances are to be addressed in this section of the CWA, then expect significant changes coming in the next few years regarding applicability and content of your SPCC Plan.  However, don’t be surprised if U.S. EPA reverts back to their previous position when they were challenged by NRDC in 2015, which was to essentially state that the current CWA framework adequately addressed hazardous substances in other sections of the Act.

We will continue to monitor progress of this Consent Decree and report back any findings.  Contact your ALL4 Project Manager or Paul Hagerty for more information.  Additional resources can be found on our Water Quality Compliance page.

Environmental Justice // Rich Hamel

Environmental Justice: Looking Ahead to 2022

Since the Biden administration took office on January 20, 2021, the topic of environmental justice (EJ), along with climate change, has jumped to the forefront of the U.S. environmental agenda. Nearly every communication from the administration related to the environment now addresses EJ directly, and many appointments to the Biden Cabinet are staff who have expertise in EJ. Throughout 2021, the administration has been collecting data, making plans for new policies and regulations, and utilizing existing rules that have been in existence for decades, but had been rarely, if ever, utilized, to further their EJ agenda. We fully expect this will continue and expand in 2022, along with the introduction of new tools, new policy directives, and rule proposals. Additionally, the administration is committed to making data more accessible to the public, between efforts to simplify the Toxics Release Inventory (TRI) website for easier access and understanding, to funding monitoring programs via grants to allow for more ambient pollutant data to be collected and published.

Environmental Justice Activities in 2021

The Biden administration kicked off its environmental agenda with the January 27th Executive Order “Executive Order on Tackling the Climate Crisis at Home and Abroad.” The executive order established combating climate change and EJ as two cornerstones of the new Administration’s policy objectives and announced what has become known as the Justice 40 plan, which targets clean energy investments with the goal of delivering 40 percent of the benefit to overburdened communities.

The year also saw a heightened focus on enforcement of environmental crimes, with the administration using two existing, but rarely invoked rules, Title VI of the Civil Rights act and Section 303 of the Clean Air Act, to enforce their agenda and pressure states to do the same.

A number of states have also begun implementing their own EJ policies and rules. New Jersey worked to finalize the implementation of its EJ law, passed in October 2020, and California is in the midst of their own rulemaking with the AB 1001 proposed EJ rule. Several other states, including North Carolina, Alabama, Texas, Virginia, and Illinois, have begun incorporating some level of EJ review into their permitting processes.

Looking Ahead to 2022

EJ will continue to be a focus of the environmental agenda in 2022. In the Draft FY 2022-2026 EPA Strategic Plan, one of the 7 key goals outlined is “Take Decisive Action to Advance Environmental Justice and Civil Rights.” The goal focuses on correcting the historical environmental injustices committed in the past and achieving measurable environmental, public health, and quality of life improvements in the most overburdened communities. It once again emphasizes vigorous enforcement of civil rights and EJ violations. Specifically included in the goal are the following objectives:

  1. Promote Environmental Justice and Civil Rights at the Federal, Tribal, State, and Local Levels: Empower and build capacity of underserved and overburdened communities to protect human health and the environment.
  2. Embed Environmental Justice and Civil Rights into EPA’s Programs, Policies, and Activities: Integrate environmental justice and civil rights in all of the Agency’s work to maximize benefits and minimize impacts to underserved and overburdened communities.
  3. Strengthen Civil Rights Enforcement in Communities with Environmental Justice Concerns: Strengthen enforcement of and compliance with civil rights laws to address the legacy of pollution in overburdened communities.

Additionally, U. S. EPA has asked for funding for the creation of an Assistant Administrator for Environmental Justice position to further emphasize EJ objectives. It is also expected that U.S. EPA will roll out a new version of their EJ screening tool, EJSCREEN, in a more robust format that will identify whether communities are overburdened. The administration has committed to a more integrated approach to EJ, using tools like EJSCREEN, the Power Plants and Neighboring Communities mapping tool, and others to assist in identifying overburdened communities and what additional requirements related to permitting may be required.

In terms of regulatory action, there are two pieces of rulemaking at the federal level that, if enacted, could add significant challenges to permitting related to EJ:

CLEAN Future Act:

Draft legislation developed by House Democrats, the CLEAN Future Act, has significant provisions related to EJ:

  • Defines an overburdened census tract, which is a census tract that:
    • Has been identified within the National Air Toxics Assessment (NATA) published by the U.S. EPA as having a greater than 100 in 1,000,000 total cancer risk; or
    • Has been determined to have an annual mean concentration of particulate matter less than 2.5 microns in diameter (PM5) of greater than 8 micrograms per cubic meter (mg/m3), as determined over the most recent 3-year period for which data are available.
  • After the date of enactment of the CLEAN Future Act, no permit shall be granted by a permitting authority for a proposed major source that would be in an overburdened census tract.
  • After January 1, 2025, no permit for a major source in an overburdened census tract shall be renewed.

The potential impact of this rule, if enacted, would be enormous: A large percentage of the U.S., including most industrial areas, has an annual mean PM2.5 concentration greater than the 8 mg/m3 threshold, meaning that no permitting of major sources in those areas would be allowed, and no permit could be renewed after January 2025. At present, the CLEAN Future Act appears to be in limbo, with little progress since it was initially introduced in March 2021, especially with Congress currently focused on the Build Back Better infrastructure package. In our view it is unlikely that legislation as stringent as the CLEAN Future Act would ever pass in its current form; however, we should pay close attention to the evolution of this Act should it return to Congress’ attention.

Cumulative Risk Assessments:

Another effort that will likely see draft publication in early 2022 is requirements and guidance for performing cumulative risk assessments (CRA). A CRA assesses the cumulative risk from overlapping environmental hazards from a facility. These include:

  • Air emissions;
  • Water discharges;
  • Chemical mixtures; and
  • Non-chemical stressors (higher at-risk local population, etc.)

The concept for CRA dates back to the Bush administration in 2003 and was part of Obama’s 2014 environmental agenda, so it has been around for some time, but this is the first time guidance around CRA will be formally published. Draft guidance was peer-reviewed within the U.S. EPA in July 2021 and is expected to be published within the first few weeks of 2022. Once this guidance is published, it is likely that CRA will quickly be adopted as a permitting requirement when a facility is located near an EJ community. Whether this could result in a requirement for additional air dispersion modeling or fence line monitoring is currently unknown. Interestingly, it is expected that the guidance will be published without the opportunity for public comment, which will no doubt result in litigation.

Conclusions

EJ, along with combating climate change, is a cornerstone of the Biden administration’s environmental agenda. In the past year we have seen growing amounts of activity, both at the state and federal level, around EJ and an increasing amount of federal intervention on state permit actions based on inadequate consideration of EJ issues. In 2022, we will see more policy and rulemaking activity related to EJ and no doubt continued federal activities related to permit actions. We also expect an increase in enforcement activities as the administration seeks to serve notice that environmental crimes near overburdened communities will be dealt with harshly.

Additionally, as public awareness and activism continues to increase, EJ provides a wide avenue for interveners to use to criticize a permit action as being deficient and will likely be included as part of the grounds for permit denial when outside entities choose to oppose issuance of a construction permit.  ALL4 will continue to follow EJ activity at the state and federal level; for more information please contact Rich Hamel.

ESG Evolves and Escalates as Climate and Other Pressures Mount // Connie Prostko-Bell

What is the point, really, of ESG? The heart of the matter is about market actors preparing to compete in a dramatically changing economy. In order to do so successfully, each must effectively mitigate risk and presciently adapt where change cannot be avoided.

Why is our economy changing so radically? We live in a closed system, affectionately known as planet Earth. Our lovely planet has some key limitations. There is only so much material to extract and only so much capacity to absorb waste. We have been extracting material and producing waste for a very long time and at an accelerating rate. We continue to add to the load population-wise and we measure success almost exclusively by economic growth. The risk resulting from these pressures comes in a variety of categories, Environmental and Social among them. An entity’s ability to navigate successfully depends largely on the way they approach risk and change – or how they Govern their organization. Hence the emergence of ESG as a business-critical evaluation of a company’s likelihood to continue to create value and generate returns for the next 5, 10 or 50 years.

Considering 2021 in the context of ESG we saw a year of hyperactivity driven by regulatory, political, social, scientific, business and climate change. While the caveat ‘past performance does not guarantee future returns’ is well headed, it is impossible not to consider the current trajectory when thinking about what 2022 is likely to bring.

Environment

According to Stacker (using data from NOAA) there were 18 natural disasters in the US in 2021, each of which reached or exceeded $10b in damages including wildfires, hurricanes, flooding, tornados, windstorms and hail. “The only two truisms when it comes to extremes in climate change are that almost everywhere: The hot hots are getting hotter and more frequent, and the wet wets are getting wetter and more frequent,” said Daniel Swain, a climate scientist at UCLA who specializes in the relationship between climate change and weather. (Washington Post, Dec 17, 2021 “Cold, heat, fires, hurricanes and tornadoes: The year in weather disasters”)

COP26 took place in Glasgow in November resulting in a mixed bag of outcomes. Ultimately 152 countries have submitted so-called Nationally Determined Contributions or NDC to cut emissions, but even if those countries deliver it is estimated to be inadequate to meet the goal of limiting temperature rise to 1.5 deg C. (WRI, Nov 17, 2021 COP26: Key Outcomes From the UN Climate Talks in Glasgow).

Currently 45 nations have Emissions Trading Schemes (ETS) or Carbon Taxes implemented, scheduled or under consideration. China initiated a carbon trading program in July seeing $32m USD in trading on opening day. (EARTH.org) Notably, the US is not among them, though some states have or are considering ETS.

Social

Malfunctions in the global supply chain caused shortages ranging from parts, to finished goods to logistics capacity leading to empty shelves, delayed shipments and missed forecasts across the globe.

The pandemic continued to impact consumer behavior resulting in winners (e.g., UPS, Netflix, Amazon) and losers (e.g., Carnival, Delta, Cineplex).

The labor market experienced shocking upheaval as workers were involuntarily displaced in some markets while others suffered severe worker shortages. Many companies are rethinking their approach to compensation, benefits and employee relations in an effort to be able to attract and retain workers.

Governance

Politically, 2021 saw considerable changes as market reactions to the administration change in the US took effect. For example, in late 2020 GM abruptly abandoned an alliance of automakers backing the Trump administration’s efforts to require states to conform to federal policy regarding fuel economy standards.

From a regulatory perspective in the US, we experienced significant activity related to the financial community and regulated emitters, particularly from the Securities and Exchange Commission (SEC), Department of Labor (DOL), and the EPA.

  • The SEC issued a Risk Alert meant to address disingenuous claims made by so-called ESG products and services, created a website dedicated to providing ESG guidance and identified ESG as an examination priority.
  • The DOL went after the so-called ‘non-pecuniary rule’ issued by the previous administration which many argued discouraged consideration of ESG risk factors in investment decisions made by administrators of public retirement plans.
  • USEPA proposed new methane rules targeting both new and existing oil & gas facilities driven by the Global Methane Pledge announced at COP26.

Disruptions caused by cybercrime impacted companies globally in 2021 exposing them to revenue losses, data losses, compromised IP, litigation and ransom payments. Colonial Pipeline paid $4.4 million in bitcoin to The Darkside gang to restore their digital infrastructure in 2021, in addition to the lost revenue, chaos and disruption caused by the pipeline being inoperable.

2022

Clearly ESG is an enormous topic with many elements and nuances that vary in relevance to individual companies, jurisdictions and people depending on location, dependencies, resources or other factors.

Based on 2021’s activity and other pressures 2022 promises to be action packed. For 2022 it is likely we will continue to see industry tackle issues related to:

Environment

  • Climate Change
  • Carbon transition / Net Zero commitments
  • Resource Productivity and Natural Capital Management
  • Don’t expect carbon taxes in the US in 2022 but prepare to incorporate progressive carbon taxes in other countries as well as internal carbon costs in risk planning, exposure disclosures, product design, and decision making.

Social

  • Supply Chain Resilience
  • Human Capital Management
  • Environmental Justice

Governance

  • Shareholder and Investor pressure to disclose, declare and act
  • Engaging with shareholder activists in exchange for proxy proposal withdrawal
  • Reporting veracity
  • Demands for common metrics and standard frameworks
  • Cybersecurity

ALL4’s ESG team will meet you where you are in 2022 and help execute a strategy that addresses risk and opportunity and positions your organization to win the long game.

2022 Look Ahead Part 2

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