Biden Administration Releases Two Environmental Justice Tools on the Same Day

On February 18^th, the Biden administration released two Environmental Justice (EJ)-related tools. First, the White House Council on Environmental Quality (CEQ) released a beta version of the long-awaited Climate and Economic Justice Screening Tool. Later in the day, the U.S. Environmental Protection Agency (U.S. EPA) released EJSCREEN 2.0, a significant upgrade to the previous version of the tool, with many new features and data sources, and a revised user interface. These tools are the building blocks around which the administration will determine which communities are overburdened and subject to special consideration in future policy and rulemaking.

Climate and Economic Justice Screening Tool

In the first days of the Biden Administration, Executive Order 14008, the CEQ was directed to create a screening tool (then to be called the Climate and Environmental Justice Screening Tool as opposed to Climate and Economic Justice) to support the Justice40 Initiative which requires that federal investments provide at least 40 percent of the overall benefits of the project to disadvantaged communities. The tool is to be used by federal agencies to identify which communities are disadvantaged to enable them to comply with the requirements of the initiative.

The tool was finally released on February 18th after heavy pressure from non-governmental organizations (NGO’s). The tool includes eight major categories that are used to determine if a community, at the census tract level, is considered disadvantaged for the purpose of the Justice40 Initiative:

• Climate Change
• Clean Energy and Energy Efficiency
• Clean Transit
• Affordable and Sustainable Housing
• Reduction and Remediation of Legacy Pollution
• Critical Clean Water and Waste Infrastructure
• Health Burdens
• Training and Workforce Development.

Each category contains one or more subcategories adding up to a total of 21 indicators. Each major category also comes along with 2 sociometric indicators, usually Low Income and Higher Education Enrollment Rate. A census tract that is above a set threshold for any one of the 21 indicators (typically the 90^th percentile) and triggers both sociometric indicators (for example, above the 65^th percentile for low income and at or below the 20^th percentile for higher ed enrollment rate) for that category is considered disadvantaged.

Based on the above criteria, 32% of the census tracts in the United States, representing about 93,500,000 Americans or 28% of the population are considered disadvantaged, with a very large percentage being in the southeastern part of the country, especially in rural areas. An immediate observation is that a federal initiative affecting the entire country equally would, by default, be providing 80% of the required 40% overall benefit to disadvantaged communities without any special accommodation towards them at all.

It is also important to note that this tool gives equal consideration to categories not related to climate change or exposure to pollution as those that do.  For example, a census tract is disadvantaged if it is at or above the 90^th percentile for low median income and is at less than 90% for high school degree attainment rate and below 20% for higher ed enrollment rate, regardless of the levels of pollution in the ambient air or proximity to pollution sources.  As a result many, if not most, of the communities that are defined as disadvantaged by the tool are not above thresholds in any pollution or climate-related categories.

Also of interest, the CEQ says it has designed the tool to withstand legal challenges. Because of that, race was specifically excluded as a factor, despite urgent calls from the White House Environmental Justice Advisory Council (WHEJAC) to include it. This decision has resulted in immediate backlash from environmental groups across the country stating that by excluding race, the tool is leaving behind many of the people who have long been the subject of EJ concerns, and live in communities that the EJSCREEN tool would identify as overburdened.

The tool currently uses census tract data from the 2010 U.S. Census, though the intent is to update to the 2020 Census as soon as the data is available. The website has a methodology section that presents the source of the data behind each indicator.

EJSCREEN2.0

The second tool released on February 18^th was the significantly updated version of EJSCREEN. The update includes a new interface that makes it easier to access the different kinds of indicators, and also new, broader categories of data that can be used to determine if a community is overburdened.

The main interface allows easy access to the 12 EJ Indexes which are the heart of the tool, with Underground Storage tanks being a new EJ Index added to this version. The display when one of these items is selected is much the same as the previous version.

Next comes Pollution and Sources, which is a new name for the Environmental Indicators and is brought to the forefront of the tool more so than in the previous version. Now it is easier to see which areas are impacted by higher levels of pollution regardless of whether the communities are overburdened based on socioeconomic indicators.

While the socioeconomic indicators have not changed since the last version of EJSCREEN, three new categories of data are provided that you can overlay on the EJ, pollution, or socioeconomic indicators. The first is Health Disparities, and includes three subcategories:

• Low Life Expectancy
• Heart Disease
• Asthma

Next is Climate Change Data, covering the following items:

• Wildfire Hazard Potential
• Drought
• Coastal Flood Hazard
• 100 Year Flood Plain
• Sea Level Rise

The last new category is Critical Service Gaps, which includes:

• Broadband Gaps
• Food Desert
• Medically Underserved

The format of the standard EJSCREEN reports themselves appear unchanged, and the new categories above are not factored into the EJ Index calculations. Like the CEQ tool, the census tracts are currently based on the 2010 Census, though some of the demographics data have been updated to use the 2019 American Community Survey (ACS) data. The environmental data are also more recent, using the 2017 National Air Toxics Assessment (NATA) data.

Thoughts and Conclusions

The CEQ tool is perhaps the more interesting of the two tools in that the focus of the tool seems to have changed from what was originally intended in EO14008, to be a tool to support EJ initiatives and identify EJ communities, to the broader definition of identifying disadvantaged communities. As a result, a large swath of the communities identified as disadvantaged would not be considered EJ communities and would likely show relatively low percentiles in the EJ Indices in the EJSCREEN tool. For example, in Georgia, most of the state, other than urban areas like Atlanta, appears as disadvantaged, while the cities do not. In EJSCREEN on the other hand, the cities are more likely to produce results that would suggest a community has EJ challenges than the rural areas, Atlanta again being an example, where most of downtown would be in the 80% percentile or higher for several EJ Indexes. The difference in a disadvantaged community in the CEQ tool vs. an overburdened one in EJSCREEN is further being confused when the media describes these tools by using these terms interchangeably.

This differentiation is important because while the tools are designed with different purposes in mind, one can easily envision that they will be used in similar ways by NGO’s: to find opportunities for public comment to challenge permit activities or otherwise file complaints. Additionally, the EJSCREEN tool, by bringing the Environmental Indicators more to the forefront, makes it easier to identify facilities in environmentally challenging areas, even if the demographics don’t classify the area as overburdened based on the EJ Index calculations.

Between the expanded data sets in the new tools, just about anywhere in the country where an industrial facility sits can be found to be disadvantaged, overburdened, or have other environmental challenges that could put the facility at risk from public interest groups opposing the presence of the facility, the stringency of the facility’s environmental permits, or a proposed project at the facility. U.S. EPA and CEQ are actively taking feedback on both tools, both in written form and via webinars as the tools are developed. Now is the time to comment if there are elements in the tool that are questionable or need modification.

If you have concerns about the potential implications of these tools and you’d like to discuss them, feel free to contact your ALL4 Project Manager or Rich Hamel. We’d be happy to share what we’ve learned so far and what we’re hearing is just over the horizon and assist you in any way we can. We can also help you evaluate the EJ risk for each of your facilities and plot a strategy to minimize that risk by performing local monitoring, air dispersion modeling, and public outreach. We’re here to help!

U.S. EPA Proposes Denial of NHSM Rulemaking Petition: A Summary and What This Means For Your Facility

On January 28, 2022, U.S. EPA published a proposed response to a rulemaking petition received on December 7, 2018 from the American Forest and Paper Association (AF&PA), Association of American Railroads (AAR), Treated Wood Council (TWC), American Short Line and Regional Railroad Association (ASLRRA), and American Wood Council (AWC) requesting revisions to the Non-Hazardous Secondary Materials (NHSM) regulations promulgated at 40 CFR Part 241.  The first two requests from the petitioners focused on increasing opportunities to burn materials such as creosote-treated railroad ties (CTRT) as fuel, while the third requested revisions to the definition of paper recycling residuals (PRR) as non-waste fuel.  Here is a quick summary of the requested amendments, proposed U.S. EPA response, and a discussion on potential implications for your facility:

• The petition requested that the legitimacy criterion for comparison of contaminants in an NHSM to fuels the unit is designed to burn under 40 CFR Part 241 be changed from “mandatory” to “should consider.” This change could expand the types of NHSM that facilities would be able to burn as fuel in their combustion units. U.S. EPA is proposing to deny this request on the grounds that the legitimacy criterion exists to prevent an NHSM with significantly higher contaminant levels than the fuels the unit is designed to burn from being considered a non-waste fuel.
• The petition also requested to remove associated “designed to burn” and other limitations specifically for CTRT, arguing that the designed to burn criterion result in different classifications for the same material when burned in one unit versus another. This change would allow facilities burning biomass but not fuel oil in their boilers to burn CTRT as fuel. U.S. EPA is proposing to deny this request, arguing that the design to burn criterion is fundamental to the NHSM program because it is the primary mechanism for identifying which traditional fuel should be used as the basis for determining whether contaminant levels in the NHSM are comparable to or less than the traditional fuel being replaced. S. EPA states that NHSM rules are meant to classify an NHSM in order to apply the appropriate emissions standards under Sections 112 and 129 of the Clean Air Act (CAA); thus, it is appropriate to consider an NHSM a non-waste fuel in a unit designed to burn a comparable fuel, and a solid waste in a unit that is not designed to burn a comparable fuel. As a result of community concerns in some locations regarding burning CTRT as fuel, U.S. EPA is requesting public comment on the potential health and environmental impacts associated with managing and processing CTRT prior to combustion, in addition to approaches to addressing these issues.
• The petition requested that the definition of PRR be revised. The primary request was to remove the condition that PRR that “contain more than small amounts of non-fiber materials … are not paper recycling residuals.” This change would have removed ambiguity from the definition of PRR. U.S. EPA is proposing to deny this request, arguing that the reason non-fiber materials (e.g., clays, starches, waxes and adhesives, plastics, filler and coating additives, and dyes and inks) are not considered PRR is due to lack of a meaningful heating value and no contribution to energy recovery. However, U.S. EPA is proposing to reduce the regulatory uncertainty by revising the PRR definition to include a numerical limit of two percent on non-fiber materials above which a residual is no longer considered a PRR. The numerical limit is based on data from the Institute of Scrap Recycling Industries Guidelines for Paper Stock, which is a guideline on the amount of non-fiber material that should be in a bale of paper that will be recycled, not the amount of non-fiber material that should be in the PRR that will be combusted for energy recovery. The revised definition also updates language surrounding PRR composition from “composed of primarily wet strength and short wood fibers” to “composed primarily of fibers that are too small or weak to be used to make new paper and paperboard products.”
• In addition to the regulatory changes, the petition also expressed concern regarding the impact of railroad tie storage timeframes on NHSM classification, stating that U.S. EPA’s consideration of railroad ties that have been stored for a year or longer without end-use determination are considered “discarded” is “incompatible with the realities of railroad operations.” U.S. EPA’s response clarified that NHSM must be processed before being transferred off-site in order to be considered a non-waste fuel, unless a petition demonstrating the material has not been discarded is submitted under 40 CFR 241.3(c).

It is also worth noting that U.S. EPA has evaluated environmental justice impacts of the proposal and have determined that the proposed action would not have disproportionately high and adverse health and environmental effects on minority, low-income, and/or indigenous peoples, while granting the requests of the petition would have a disproportionately high and adverse effect on these populations.

U.S. EPA will be accepting comments until March 29, 2022.  Here are a few things to take into consideration if your facility combusts NHSM if and when U.S. EPA’s propositions are finalized, as well as how U.S. EPA’s response to the petition may impact the rule:

• In order for your NHSM to be considered a non-waste fuel as opposed to a solid fuel, you must continue to demonstrate that the NHSM you are combusting has comparable or lower contaminant levels than the traditional fuels your unit is designed to combust. For example, if you operate a boiler that is only designed to combust natural gas but want to combust CTRT, the CTRT would be considered a solid waste because natural gas has significantly lower contaminant levels than CTRT. However, CTRT combusted in a boiler that is designed to combust biomass and fuel oil would be considered a non-waste fuel due to the higher contaminant levels of biomass and fuel oil and comparability of the contaminant levels to those in CTRT.
• As currently proposed, you would need to demonstrate that you meet the 2 percent limit on non-fiber materials to be considered PRR under the NHSM rule. However, as noted above, the proposed 2 percent criterion is not based on non-fiber content of PRR. Industry is preparing comments on this proposed change and will submit data to support an alternate definitional change to PRR.  Watch for what PRR definition is finalized and evaluate whether your PRR meet the criteria.

If you have any questions, feel free to contact me at kwalburn@all4inc.com or at (678) 599-9011.

Upcoming Updates to Philadelphia’s Air Toxics Regulations

Philadelphia’s Air Management Services (AMS) intends to propose revisions to Air Management Regulation (AMR) VI concerning the control of emissions of toxic air contaminants, or air toxics. AMR VI was first approved and promulgated in 1981 and has not undergone significant changes until now. AMS had planned to propose these changes to the Air Pollution Control Board (APCB) of Philadelphia on January 27, 2022, however, AMS postponed this proposal until the next APCB meeting on April 28, 2022.

AMS appears to be modeling the updated regulations to resemble New Jersey’s air toxics program, whose toxic substances regulations and risk assessment worksheet were updated by New Jersey Department of Environmental Protection (NJDEP) in 2018.

The proposed updates include expanding the list of toxic air contaminants and requiring a risk assessment to be completed and submitted as part of permit applications that have the potential to increase emissions of the air toxics. The list of toxic air contaminants will be expanded from 99 to 217 pollutants, including nearly all 187 pollutants currently classified as hazardous air pollutants (HAP) by the U.S. Environmental Protection Agency (U.S. EPA) pursuant to Section 112 of the Clean Air Act (CAA). The expanded list of toxic air contaminants and their respective reporting thresholds closely resemble New Jersey’s list of hazardous air pollutants and reporting thresholds as published by NJDEP in the New Jersey Administrative Code (N.J.A.C.) 7:27-17.9. The reporting threshold is the annual emission rate level in pounds per year of a source that, when exceeded, would trigger the requirement to conduct a health risk analysis.  A source with potential air toxics or HAP emissions below this reporting threshold would not require an air toxics risk assessment and would be considered an insignificant source (i.e., would not require a permit or certificate) assuming all other air permit exemption criteria under N.J.A.C. 7:27-8.2 are met.

Risk screening will be required for new or modified sources where an applicant seeks Installation Permits or Plan Approvals from AMS. Facilities seeking initial Title V permits will be required to perform a facility-wide health risk assessment for all air toxics emitted from all air pollution sources operated as part of the Title V facility.

ALL4 is aware that AMS has already been requesting air toxics risk assessments from certain facilities in Philadelphia as part of plan approval and operating permit applications, and that the risk assessments requested are based on NJDEP’s risk assessment worksheet. The draft amended AMR VI mentions a risk assessment tool to be put forth by AMS, however, no official draft risk assessment worksheet is available to review at this time.

If the proposed changes are approved by the APCB by vote on April 28, 2022, the draft regulation will have a public notice published followed by a 30-day public comment period. During this time, the regulated community may submit comments on the proposed changes, and AMS must evaluate all comments prior to finalizing the new regulation.

If you have questions about how these updates affect your Philadelphia facility or need help developing comments to submit to AMS during the upcoming 30-day public comment period, don’t hesitate to reach out to me at lzhu@all4inc.com or your regular ALL4 contact.

What to Expect During an OSHA Visit

WHAT TO EXPECT DURING AN OSHA INSPECTION

The Occupational Safety and Health Administration (OSHA) is a regulatory agency of the Department of Labor. OSHA is committed to enforcing fair, effective safety and health requirements in the workplace to protect the well-being of employees. Official OSHA inspectors are commonly referred to as compliance safety and health officers (CSHOs) or compliance officers. Learn more about what to expect during an OSHA visit.

How Does OSHA Decide Whom to Inspect?

There are numerous reasons why OSHA may visit a work site and perform an inspection. What happens when OSHA visits will also vary depending on the reasons behind the inspection. There are numerous situations that may gain the attention of OSHA and result in a workplace evaluation. OSHA prioritizes inspections if they suspect an employer is directly or indirectly putting employees in imminent danger.

If an employer has a record of severe illnesses, injuries or employee fatalities, OSHA will likely perform an inspection as soon as possible to prevent future injury to employees. Another reason OSHA may conduct an inspection is if they continue to receive worker complaints, particularly if there is a large number or if they’re coming from various departments.

Referrals of hazardous conditions from local, state or federal agencies, media outlets, individuals or organizations may also result in workplace inspections. There are also programmed inspections, including those falling under an OSHA emphasis program.

Even if an employer does not have a record of employee injury or illness, OSHA often performs inspections in high-hazard industries and workplaces, including industrial or manufacturing plants.

Does OSHA Have to Give Notice?

In almost all cases, OSHA does not perform inspections with advanced notice. Still, employers do have the right to require all compliance officers to obtain and present an inspection warrant before entering a work site. While most inspections are unannounced or considered random, there are four conditions when OSHA provides advanced inspection notice:

• Imminent danger: If a workplace poses an imminent or immediate threat to employees, OSHA may notify the organization that they plan to perform an inspection. OSHA often chooses to inform management in hopes the company will immediately improve conditions and promote safety among employees.
• After business hours: Another reason OSHA may provide advanced notice is if the inspection would occur after standard business hours or if special accommodations or preparations are needed.
• Management not present: OSHA may also notify a company of an upcoming inspection if management or employee representatives may not be on-site without notice.
• Miscellaneous: OSHA may decide to provide advanced notice for any other circumstances they deem fit. If OSHA believes a more comprehensive inspection would yield better results, they will likely provide advanced notice. One example may include a fatality investigation.

The Scary 13

The “scary 13” is a term used to describe the common issues many employers may face or documents they may struggle to provide during OSHA inspections. These 13 elements are often difficult for an employer, making them essential to understand and prepare for. A firm understanding of the scary 13 can help your company get ready for a potential OSHA inspection. These 13 elements include:

1. A comprehensive, up-to-date report of all chemicals used on the work site
2. Training records for electrical safe practices and tasks
3. Training on personal protective equipment (PPE)
4. Up-to-date hazard communication education and training for employees working with chemicals currently on the job site
5. Yearly respirator training
6. Training on bloodborne pathogens
7. Forklift recertification
8. Training on noise exposure
9. Written personal protective equipment hazard assessment and certification
10. Tagout and lockout audits
11. Lockout-authorized employee training
12. Confined spaces non-permit certification
13. State workers’ compensation or temporary employees’ OSHA 301 report of injury

Opening Conference

During the opening conference, an OSHA agent will explain to the employers and management why the company was chosen for an inspection and further define the scope of the review. At this time, an employer will select a company representative to accompany the compliance officer during the inspection and answer any relevant questions.

Additionally, an authorized representative of the employees can also accompany the compliance officer. During the inspection, the compliance officer will consult directly with numerous employees in private to gather applicable information.

The CSHO will provide the company with reasons for the inspection. If an employee complaint causes the inspection, the CSHO will provide the employer with a copy of the complaint with all personal or identifying information removed.

Interviews

During the CSHO’s inspection, they will perform multiple confidential interviews with employees. The employer should designate a private area where the compliance officer and employees can speak freely. In most cases, these interviews are quite quick and only take a few minutes. Employee interviews generally cover how long the employees have worked for the business and their types of training.

Employee interviews are designed to gauge the overall level of training and work site education the average company employee has. For the comfort of employees, they can choose to answer these questions in private or opt to have a supervisor present if they prefer. In some cases, a translator may be needed.

It’s important to note that during an OSHA inspection, employees must truthfully answer all questions asked by the inspector. Employees have the right to decline to answer a question at any time during the interview process.

For translation purposes, OSHA will provide the service via phone or headset to facilitate clear communication between the CSHO and employee. All compliance officers try to minimize interruptions during the workday while still gathering the information they need for their inspection. All trade secrets a compliance officer observes during their inspection will remain confidential.

Walk-Around Inspection

Following the opening conference, the CSHO will walk through the sections of the workplace that directly relate to the reason for the inspection, such as departments noted in direct employee complaints. The compliance officer will assess the workplace and determine any potential dangers or hazards that may result in employee illness, injury or death.

During the walk-around inspection, the compliance officer will also review any work site illness or injury records. If there are apparent OSHA violations that can quickly be addressed, the compliance officer will likely mention these issues, allowing the employer to rectify a situation promptly. The law requires these hazards to be cited, but if an employer quickly and effectively corrects the issue, it often reflects well during the inspection.

Closing Conference

The compliance officer will perform a closing conference with any representatives involved to close out an inspection. In most cases, the closing conference occurs anywhere from one to six weeks after the physical inspection and is often performed over the phone. During this conference, the officer will discuss their findings and explain any violations resulting in a fine or citation.

Additionally, the compliance officer will discuss corrective actions to implement and provide a reasonable timeline for when these improvements should be made. They may also refer the employer to any relevant consultation services that may aid them in making workplace corrections and improvements.

If an employer has promptly corrected an issue, they may qualify for OSHA’s quick-fix penalty reduction program, reducing potential costs of a fine, but it is important to note that not all violations fall under this program. Fines and citations are deemed official once an area office review occurs and the employer is officially notified by certified mail.

How to Prepare for a Surprise OSHA Inspection

Preparing for a potential OSHA inspection can ensure you are ready to demonstrate your company’s commitment to health and safety for a compliance officer. One way to prepare for an OSHA inspection is to work with an occupational safety and health compliance consultant. An ALL4 compliance consultant can help you understand what to expect during an OSHA inspection and how to prepare.

ALL4 health and safety consultants and industrial hygienists work in various industries, including manufacturing, pharmaceutical, automobile, energy and federal defense agencies. Our experts help create effective site-specific strategies to minimize workplace injuries and accidents and effectively manage and mitigate risk. Working directly with a safety and health compliance consultant can help you prepare for an OSHA inspection, reducing the risk of expensive fines and citations.

Occupational Safety and Health Compliance Consultants

ALL4 can help your company prepare for a potential OSHA visit and implement the latest and most effective health and safety regulations. Our team of experts provides an objective and unbiased review of potential company issues and best practices to implement, including safety program development, compliance auditing and more.

Contact an OSHA expert online today to ensure your business follows the latest safety and health regulations.

Impacts of the NY CLCPA

New York’s Climate Leadership and Community Protection Act: How Will it Impact My Facility?

New York State’s implementation of its Climate Leadership and Community Protection Act (CLCPA) has recently made headlines after the October 27, 2021 move by the New York Department of Environmental Conservation (NYSDEC) to deny air permits to two natural gas power plants in the New York City metro area. The denial was made on the grounds that neither facility demonstrated compliance with the requirements of the CLCPA to show how the facilities would implement reductions in greenhouse gas emissions (GHGs). This decision is one of the first major regulatory actions in an ongoing shift in the landscape of regulation and environmental justice. If you are wondering what this means for the future of regulation in the state of New York and how the CLCPA will affect your facility, you are not alone.

What Is The New York CLCPA?

Effective January 1, 2020, the CLCPA (SB S6599) mandates reductions of GHG emissions within the state to 40% below 1990 levels by 2030 and 85% by 2050. The law also requires that at least 35% of the overall benefits of state spending on climate change mitigation investments will go to disadvantaged communities. The scope of the law is broad, but the initial focus has been on de-carbonizing both the energy and transportation sectors. Implementation of the law requires the NYSDEC to evaluate the potential impacts of certain industrial sectors on the state’s GHG reduction targets and on disadvantaged communities when reviewing permit applications.

How Will The CLCPA Affect My Facility?

To achieve the decarbonization required by the act, the state of New York will need to rapidly eliminate carbon emissions from the energy sector while increasing electricity production for the transportation sector. This will require the state to incentivize the development of renewable energy infrastructure and a broader market for carbon offset credits. The message to facilities that currently burn fossil fuels to produce electricity or process heat is that they must either find a way to offset these emissions or shift to renewable sources of energy.

Consider the following questions if you think your facility may be affected by the CLCPA:

1. Is my facility in an industry directly affected by the CLCPA?

As of October 2021, the facilities that have been directly affected have been large utilities in environmental justice (EJ) regions of New York state that use natural gas and other fossil fuels to produce energy. The scope of affected facilities is likely to grow as the state continues to implement the new law.

2. Is my facility located within an EJ area?

Use this link to view a map of EJ regions within New York state: NY DEC Potential Environmental Justice Areas
Facilities within EJ regions may be under increased pressure to shift to renewables and may experience obstacles to permitting new fossil-fuel burning infrastructure development.

3. What is my organization’s plan for the future of the facility?

Facilities that are planning infrastructure investments in fossil-fuel burning equipment will need to assess the applicability of the CLCPA on their regulatory requirements and plan accordingly. For many existing facilities, offsetting carbon emissions via carbon credits or transitioning to carbon-neutral practices may be the best strategy in the near term while the implementation of the law takes shape.

4. Do I need to submit an evaluation of applicability to the NYSDEC?

As of now, the NYSDEC is not requesting pro-active evaluations of applicability by facilities within the state. Future permitting policy may require facilities to demonstrate how their operations are compatible with the legal requirement to reduce greenhouse gas emissions set forth by the CLCPA.

However, based on the NYSDEC determination to deny air permits to two natural gas facilities in October 2021, it may behoove facilities to proactively address the CLCPA and, at the very least, provide information to aid NYSDEC in the evaluations the agency is mandated to undertake as part of their review.

Will Other States Follow The Example Of The CLCPA?

Historically, actions by states with greater economic influence have rippled through the national landscapes of energy, industry, and environmental policy. In the absence of stronger federal action, it is logical to assume that other states will draft climate change legislation of their own, further widening the scope of affected facilities. For example, New Jersey has its own Global Warming Response Act (SB 3207), passed in 2019. As of 2021, twenty-four US states have adopted policies to create specific greenhouse gas reduction targets to address climate change. A total of 33 states have released a climate action plan or are in the process of developing one. With the passage of the CLCPA in New York, we can expect these states to receive greater pressure to draft these policies and plans into binding laws.

How Can ALL4 Help?

Climate change legislation and greenhouse gas emissions reduction have always been and continue to be complex and contested topics in air quality. The implementation of the CLCPA is just the latest in what are sure to be many more air quality related regulatory changes in the future. ALL4 will continue to follow developments around the CLCPA closely. Please reach out to me at 610.422.1108 or dbrese@all4inc.com if you have any questions about how the CLCPA could affect your facility.

State-Specific Considerations for SPCC Plans in Delaware

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 Delaware (DE).

The Delaware Department of Environmental Resources and Environmental Control (DNREC) has implemented AST regulations at Title 7 Delaware Administrative Code (Del.C.) §1352.  Similar to many other states, Delaware also regulates ASTs containing hazardous substances; however, the focus of this article will be on the potentially more stringent discharge prevention and containment requirements for oil-containing ASTs.

Title 7 Del.C. §1352 Parts B and C contain technical regulations for which ASTs must comply.  In general, ASTs containing a regulated substance (e.g., petroleum products) with a capacity of 12,499 gallons or greater are subject to the Part B and C regulations.  However, it is important to note that ASTs containing diesel, kerosene, and heating fuel have a different regulatory threshold and are only subject to these regulations if the capacity of the AST is greater than 40,000 gallons.

Some of the key requirements for facilities subject to the Part B and C technical regulations include meeting the following for ASTs installed after June 11, 2004 (compliance dates for existing ASTs installed before June 11, 2004, can be found in Title 7 Del.C. §1352):

• Installing ASTs with a release prevention barrier (RPB). Acceptable RPBs for field constructed tanks include impervious liners with a permeability of 10^-7 centimeters per second (cm/s) or less, impervious concrete foundations, and double-bottomed tanks with leak detection monitoring.  Shop-fabricated tanks have two additional methods of complying with the RPB requirement, which are installing a double-walled tank with leak detection monitoring and steel containment.
• Constructing dikes or curbing used for secondary containment to contain 110% of the volume of the largest AST plus six inches of freeboard for precipitation. Similar to the permeability requirements that have been discussed in the previous bullet and several of the other articles in this series, this diking requirement is more stringent than what U.S. EPA requires under the SPCC regulations at 40 CFR Part 112.
• Installing leak detection, overfill, and spill prevention equipment. All subject ASTs must be equipped with a leak detection system, level gauge, and overfill prevention device.  The overfill prevention device requirements vary depending on whether transfer operations are continuously monitored or not.  Transfer operations that are not continuously monitored require regulated ASTs to be equipped with an automatic flow shut off device that activates at no more than 95% of its capacity.  Whereas the minimum requirement for continuous monitored transfer operations is to equip the AST with a visual and audible high level alarm.  Note that the regulations also specify testing requirements for these devices (e.g., testing the overfill prevention system at least every 93 days and calibrating the level gauge at least every 12 months).  This is another example of a more stringent requirement since SPCC regulations state these devices must be tested regularly, without defining a frequency.
• Maintaining inventory control records. For example, records must be kept daily when any transfers (i.e., adding or withdrawing) from regulated ASTs occur, with a maximum interval of seven days between measurements.  Most automatic tank gauge (ATG) systems are able to be configured to maintain these records.  Note that formal inventory control records are not a requirement under the SPCC regulations.
• Conducting formal external inspections of the tank and secondary containment at least every five years. It is important to note that this may be more frequent than what inspection standards otherwise present, particularly for shop-fabricated tanks.  The regulations also specify requirements for internal AST inspections; however, these vary considerably based on AST construction and chosen inspection standard.  In contrast, SPCC inspection requirements are typically based on what the applicable industry standard requires.

Other Requirements

Facilities subject to the Title 7 Del.C. §1352 Part B and C regulations are also required to prepare a release preparedness plan.  The main difference in requirements between a release preparedness plan and an SPCC plan are that release preparedness plans must also address contaminated soil, fire, explosion, and health and safety contingencies.  Release preparedness plan requirements can be addressed in an SPCC plan or in another contingency plan at your facility.

Stay tuned for upcoming articles that will continue to cover additional AST requirements in other states.  If you have questions on AST compliance in Delaware 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.

Electric-Car Battery Manufacturing Plants and Recyclers: What’s in Store for the U.S.

The Federal Consortium for Advanced Batteries (FCAB), led by the United States (U.S.) Departments of Energy, Defense, Commerce, and State, published the NATIONAL BLUEPRINT FOR LITHIUM BATTERIES 2021–2030 in June of 2021. Just a few months later, Ford and then Toyota announced plans for electric car battery facilities in North Carolina, Kentucky, and Tennessee. These projects not only have the potential to bring jobs and economic development to these states, but also promotes the shift to electric cars in the US. However, manufacturing lithium batteries on such a large scale comes with environmental compliance challenges as well. This article explores the environmental and permitting opportunities and obstacles for the lithium-ion battery manufacturing and waste management industries.

As with battery manufacturing facilities, the fall of 2021 saw the announcement of several U.S. lithium-ion battery recycling facilities intended to facilitate the safe and efficient management of End of Life (EOL) lithium-ion batteries. In October 2021, Retriev Technologies, Inc., Heritage Group, and the California-based Kinsbursky Brothers International announced a partnership to recycle EOL lithium-ion batteries with battery recycling and sorting at already permitted and operating facilities located in Lancaster, OH; Baltimore, OH; and Trail, British Columbia. Other partnerships have also been announced including partnerships between Battery Resourcers, with backing from Jaguar Land Rover’s InMotion Ventures, and Honda; Ford’s investment in Redwood Materials to create a closed-loop domestic battery recycling system, and a joint venture between General Motors and LG Chem in partnership with Li-Cycle to recycle waste materials from battery production.

The National Blueprint includes the following goals:

• support the growth of a U.S. materials-processing base able to meet domestic battery manufacturing demand,
• stimulate the U.S. electrode, cell, and pack manufacturing sectors, and
• enable U.S. end-of-life reuse and critical materials recycling at scale and a full competitive value chain in the U.S.

In an effort to help the environment, electric cars have gained a lot of popularity over the past decade as an alternative to gasoline-combusting vehicles. However, electric cars are not faultless, and the production of the lithium-ion batteries used for electric cars is not a perfectly “green” process.

Lithium-Ion Battery Production

As lithium-ion battery production rapidly has increased over the past decade, so has the mining, extraction, and processing of the raw materials necessary for battery manufacture. Mining activities generally produce emissions from particulate matter and air pollutants from fossil fuel combustion such as greenhouse gases (GHG) and nitrogen oxide. Similarly, cobalt is heavily mined to produce lithium batteries. Cobalt mining is not environmentally friendly industry, relying heavily on manual labor which can lead to heavy cobalt exposure to not only humans but to animals and the environment as well. On top of that, cobalt smelting can lead to high emissions of sulfur oxides.[1]

Electric cars use lithium-ion batteries, made possible with lithium cobalt oxide (LiCoO₂). The lithium ions in the compound are easily extracted and paired with graphite. The lithium ions travel through the separator to the positive anode and negative cathode leading to free electrons to power the device. To manufacture these batteries, raw materials are first mixed to create the electrode. These raw materials include metals like iron, nickel, and cobalt, as well as graphite, lithium, and manganese. Once mixed, the electrode material is coated onto copper and aluminum foil sheets. Next, the separator and electrode are joined together to create the cell. Electrolytes are introduced into the cell and are activated through the charge and discharge in the manufacturing process[2]. Lastly, lightweight metal casings and cooling systems are combined with the battery cells to create the battery pack that will go into the vehicle.

Overall, the main steps in battery production are: (1) production of lithium-ion batteries/electrodes, (2) cell manufacture, and (3) assembly of multiple cells into a battery pack. Pack assembly is generally less complex and energy-intensive than cell manufacture. Often, the packs are assembled by the automobile manufactures themselves.

Electric car manufacturing and assembly is very similar to regular internal combustion engine vehicle (ICEV) manufacturing, except for components related to energy storage, propulsion, and braking. Most existing automobile assembly plants can already be used to make the chassis for electric vehicles. However, before that can occur, the batteries must be produced. Overall, it has been found that battery electric vehicle (BEV) technologies require more energy and electricity that ICEVs. When comparing BEVs and ICEVs, emissions of GHG, nitrogen oxides (NO_x), sulfur dioxide (SO₂), and particulate matter (PM) from BEV production is almost double compared to the emissions from ICEV production. This is largely due to the high energy demands required for battery production.

Lithium-Ion Battery Recycling

EOL lithium-ion batteries are already being recycled. The methods and techniques used to recycle and recover the economic value associated with the component parts of EOL lithium-ion batteries has not changed significantly over the last 20 years; however, the development of new processes and efficiencies of existing processes with the increased demand. Historically, the process was relatively simple, involving three basic steps: (1) shredding, (2) separation, and (3) chemical reaction/oxidation. Step 3 commonly utilizes either pyrometallurgical or hydrometallurgical processes, which usually involve leaching, separation, extraction, and chemical/electrochemical precipitation.

One of the big questions that remains for many potential EOL lithium-ion battery recycling plants is where to locate the plant.  The uneven regulatory landscape that exists between the different states, and even local and regional environmental requirements, makes it difficult for these companies to navigate a clear path. The pathway becomes even more complicated with concerns related to environmental justice and toxic emissions, nuisance odors, increased traffic, and fire/life safety concerns.

The potential short term and long-term impacts of EOL lithium-ion battery recycling and management regulations must be evaluated and considered with a multifaceted lens to ensure that no issue is overlooked.

Environmental Permitting for Manufacturers and Recyclers

In terms of environmental permitting, new manufacturing plants could face multiple regulations. On a federal level, 40 CFR 461 subpart E lists New Source Performance Standards for lithium-Ion battery production. This regulation limits the discharge of metal pollutants, such as chromium, lead, and iron, into wastewater systems. It also contains pretreatment standards for the facility’s wastewater. Proposed facilities will need to carefully sample and limit discharges from the wastewater treatment system. Aside from lithium battery manufacturing, federal regulation 49 CFR 173.185 regarding the transportation of lithium batteries would be applicable. If these facilities are manufacturing batteries and sending them to another plant to be installed into vehicles, they may face several testing requirements.

In addition to federal requirements, the proposed plants will be subject to local regulations regarding combustion equipment and major source classification permits. As mentioned, lithium-ion battery manufacturing requires the use of combustion equipment. This equipment is regulated on a local and federal level because they produce GHG emissions and criteria pollutant emissions, depending on the fuel type. Lastly, if these facilities are classified as major sources, they must meet the monitoring, recordkeeping, and reporting requirements for major sources, which can be extensive.

Although EOL lithium-ion battery recycling is already occurring in the US and internationally, anticipating the immediate and growing need for the safe and effective management of EOL lithium-ion batteries, state and federal agencies are evaluating how this rapidly evolving industry will be regulated moving forward. California as an example has established a Lithium-ion Car Battery Advisory Group focused on barriers, opportunities, existing conditions, and potential policy options to generate a final report with policy recommendations. The draft report was issued in December 2021 with a final report expected in March 2022.

The Advisory Group heard from numerous experts from industry, academia, and government agencies to develop policy recommendations specific to key processes for EOL lithium-ion batteries including recycling, reuse and repurposing, and logistics.

The initial draft report includes a final list of proposed policies. How these policies will look after review and discussion by the California legislature, and what impact the policies will have on those adopted at the federal level and by other states, is yet to be determined.  In the end, the policies are expected to foster the management of EOL lithium-ion batteries in a way that efficiently and effectively maximizes the reuse and recycling of the batteries in a cost-effective manner.

Conclusion

The proposed battery manufacturing plants have the potential to bring economic and environmental change to the US; however, successfully permitting these facilities will not be an easy or quick process. As society begins to shift towards electric vehicles, we cannot forget the environmental impacts of manufacturing and recycling them. Environmental permitting is crucial for projects like these; otherwise, we would be trading environmental problems instead of finding solutions for them.

Our consultants understand the environmental requirements for projects like this, and they are happy to share that expertise. Please reach out to me at 502-509-7999 or pbarreto@all4inc.com or to Bruce Armbruster at 909-477-7103 or barmbruster@all4inc.com if you have questions regarding the permitting process for battery recycling facilities and how the requirements may impact your project.

[1] https://sgp.fas.org/crs/misc/R46420.pdf

[2] https://www.youtube.com/watch?v=q9HbHZXEEDs “LG CHEM electric vehicle battery production process” video

OLEM EJ Action Plan – What Does the Future Hold?

The United States Environmental Protection Agency (U.S. EPA) Office of Land and Emergency Management (OLEM) Environmental Justice (EJ) Draft Action Plan was released on January 5, 2022 in response to President Biden’s two executive orders (EO), EO 13985 and EO 14008, that direct federal agencies to promote and work toward achieving the administration’s EJ goals.  The plan covers areas to strengthen compliance, incorporate EJ considerations, improve community engagement, and support the Justice40 initiative. EO 14008 created the Justice40 initiative, which has a goal to deliver 40% of the overall benefits of federal dollars to disadvantaged communities.

The EJ initiatives presented in the plan range from enhanced public communication and involvement to enhanced compliance (U.S. EPA audits for specific facilities and programs).  As with any new plan or proposed regulation, understanding the areas that could affect operations and compliance in your business is important.

On January 26, 2022, U.S. EPA released additional actions under EJ following the “Journey to Justice” tour conducted by U.S. EPA administrator Michael Regan.  The first of these actions have been taken in Louisiana, Mississippi, and Texas but are expected to be expanded to other states quickly.

What changes are on the horizon for OLEM?

• Strengthening the Risk Management Plan regulation – U.S. EPA plans to propose rules to reincorporate key prevention and response measures of the 2017 RMP Amendments rule. It will also include requirements to strengthen accident and prevention programs that are in or near EJ communities. Final rules expected in summer 2023.
• Inspections of facilities with Spill Prevention Control and Countermeasures (SPCC) Plans and Facility Response Plans (FRP) – U.S. EPA plans to analyze facilities in EJ communities that are required to have SPCC Plans or FRPs in place during the 2022 fiscal year. Once the initial analyses are complete, U.S. EPA plans to increase inspections for facilities, targeting locations or sectors that are more likely to be non-compliant and in EJ communities.  These enhanced inspections will continue through fiscal year 2025. 
• Use of Airborne Spectral Photometric Environmental Collection Technology (ASPECT) to provide continuous evaluation missions (CEMs) – U.S. EPA plans to use ASPECT to provide CEMs for EJ communities, climate change and enforcement. CEMs would be specific air missions flown to characterize chemical pollutants in communities of concern, produce EJ-focused data products highlighting data coverage, and collect air quality data to support state/federal air quality standard violations enforcement. This is expected to be operational in 2 to 4 years. Currently, ASPECT is available to assist agencies supporting hazardous substance response, radiological incidents, and situational awareness.
• Resource Conservation and Recovery Act (RCRA) Hazardous Waste Treatment, Storage, and Disposal Facility (TSDF) Universe Analysis and Mapping – This initiative is an initial analysis of about 3,777 Corrective Action facilities using EJSCREEN indicators and a longer-term RCRA TSDF universe mapping effort and analysis of about 8,000 facilities to identify potentially vulnerable communities and areas that would benefit from increased funding and support. This initiative will map and provide publicly available information on RCRA TSDF sites and could affect future permitting of new or existing sites within EJ communities.
• Exploration of Potential Revisions to RCRA State Grant Terms and Conditions – U.S. EPA is exploring changes to the terms and conditions of state grants with primacy. The changes would incorporate U.S. EPA’s EJ focus and priorities in the states’ programs.  The timing on this item is dependent on state budget cycles and U.S. EPA regional negotiations with states.  If incorporated, it may require states to amend or create regulations to incorporate EJ initiatives.

What is Administrator Regan rolling out now?

While the OLEM plan provides a longer-term strategy, Administrator Regan, after his Journey to Justice tour, has started implementing parts of the plan and expanded on it in certain areas.

• Administrator Regan broadened the inspections for SPCC plan inspections to “aggressively using its authority to conduct unannounced inspections of suspected non-compliant facilities, as needed to protect public health. When facilities are found to be non-compliant, U.S. EPA will use all available tools to hold them accountable”. Facilities should expect to see more U.S. EPA multi-media inspections in EJ focused areas, but also in other communities too.

• Administrator Regan also intends to “hold companies more accountable for their actions in overburdened communities with increased monitoring and oversight of polluting facilities”.  Regan broadened the issue to “deploying a new program called the Pollution Accountability Team (PAT) to expand air monitoring capacity, utilizing assets such as the ASPECT airplane, GMAP mobile air monitoring vehicle, and additional air pollution inspectors to enhance enforcement.” Additionally, Administrator Regan is “mobilizing agency resources to invest in community air monitoring to better protect people and public health in vulnerable areas”.

• Administrator Regan continued his line of action to include “pressing state and local elected officials to take urgent action to better protect the most overburdened communities”.

ALL4 will continue to monitor EJ developments and provide periodic updates.  With enhanced monitoring and inspections expected through this administration, facilities should take this time to evaluate its compliance status.  If you have any questions, please reach out to either Rich Hamel rhamel@all4inc.com or Karen Thompson kthompson@all4inc.com.

Upcoming Changes to ECMPS – ECMPS 2.0

The Clean Air Markets Division (CAMD) is replacing the Emission Collection and Monitoring Plan System (ECMPS) with a new web-based platform – ECMPS 2.0. This transition is part of U.S. ongoing efforts to reengineer the CAMD Business Suite of tools to streamline reporting and enhance public accessibility.

What are the key changes?

The existing ECMPS is a desktop-based reporting tool used to submit 40 CFR Part 75 Electronic Data Reports (EDR) and Mercury and Air Toxics Standards (MATS) compliance reports. With ECMPS 2.0, U.S. EPA is transitioning from a desktop software to a web application. Each type of required record (e.g., a monitoring plan, quality assurance and certification activities, etc.)  will be evaluated and submitted through the new web application in a new file format.

Reporting platform: The existing ECMPS is a desktop-based reporting tool used with a shared or standalone database. Installing and running ECMPS requires dependencies and constant upkeep. ECMPS 2.0 is a web-based tool that can be accessed through a browser. CAMD expects this platform to be more streamlined and user friendly. Furthermore, the new platform will have additional functionality to allow multiple facility users to access records simultaneously.

Reporting format: The current ECMPS tool supports the XML file format. ECMPS 2.0 is built to support the JSON file format, which is more efficient and compact.

How will the transition affect how facilities report data?

While the reporting tool interface is undergoing significant changes, there are no changes being made to the reporting requirements. In other words, the same data will be reported but in a different format through a new web-based interface. No additional data quality or data integrity checks will be added to the new platform.

Your data acquisition and handling system (DAHS) vendor(s) will play a key role in this transition. DAHS vendors will be evaluating a re-configuration of their application to adapt to the new reporting file format (JSON) and test the functionality so that facilities are able to migrate to ECMPS 2.0 without delays. If you have not heard from your DAHS vendor about this change, we suggest giving them a call!

When will this transition take place?

While the schedule for the release is subject to change, U.S. EPA is currently targeting for all facilities using ECMPS to report through the ECMPS 2.0 platform starting January 1, 2023. Barring any delays from U.S. EPA, facilities should plan to submit EDR through ECMPS 2.0 in the JSON format supported by the platform.

U.S. EPA has stated that they are unable to support a dual submission window where facilities can submit reports in both the XML file format and the JSON format. Facilities should be prepared to report first quarter 2023 EDR on the new platform.

The initial beta release for the monitoring plan functionality of ECMPS 2.0 is available on the beta release webpage. The beta releases for Quality Assurance and Emissions modules are planned for early to mid-2022.

So, what should your next steps be?

It’s important to talk to your DAHS vendor about the upcoming changes to ECMPS and make sure your expectations are aligned with the DAHS vendor’s schedule to implement these changes. It will be important to test the new functionality in your DAHS so that there are no surprises when generating and submitting reports in the new format for EDR.

There are a lot of moving parts to this transition. CAMD is seeking feedback from users and making updates to the new system. The scheduled release dates may be revised depending on user feedback. Tutorials and reporting instructions under the new platform will be released in 2022. Facilities should keep up to date on the latest developments. Visit CAMD Re-engineering Effort and ECMPS Reengineering Information to learn more about this transition and to view the latest documentation. ALL4 will continue to monitor the U.S. EPA website and keep up to date on the transition.

Before you go – how might U.S. EPA’s efforts to reengineer data systems impact the regulated community?

Redesigning ECMPS is another avenue for U.S. EPA to make environmental compliance data more accessible and transparent through modern technologies. Although all of the data submitted through ECMPS is currently publicly available, the platform for accessing this information is not very user-friendly. ECMPS 2.0 will allow the public to view the same data as a facility’s Designated Representative.

U.S. EPA is also replacing Air Markets Program Data (AMPD) with an improved tool –Clean Air Markets Program Data (CAMPD), which is expected to provide easier access to power sector emissions, allowance, and compliance data. The agency is also enhancing the Application Programming Interface (API) functionality that allows external tools or services to communicate with CAMPD.

This is a good opportunity to review and audit the continuous emissions monitoring systems (CEMS) CEMS data that is submitted as part of your report and evaluate your facility’s EDR development process. If you have any questions regarding the upcoming changes to ECMPS or anything related to 40 CFR Part 75 EDR, feel free to contact your ALL4 Project Manager or Aditya Shivkumar.