California Senate Bill 158 – What Is It and Who Is the Board of Environmental Safety?

On July 13, 2021, California Governor Gavin Newsom signed Senate Bill 158 (SB 158) into law to address shortcomings of the Department of Toxic Substances Control (DTSC) and to protect the health of exposed communities. The bill aims to improve DTSC with the establishment of the Board of Environmental Safety (BES) which will oversee fees, public hearings, permitting decisions, and conduct analyses on department programs.

The Senate Bill will allocate funds from DTSC General Fund and the Toxic Substances Control Account for work related to contaminated properties, brownfield site response grants, and a job and development training program over the 2021-22, 2022-23, and 2023-24 fiscal years. Funds from the Toxic Substances Control Account are also authorized to be allocated for the green chemistry program and the administrative and operating costs for the BES.

Among the changes SB 158 set for requirements of hazardous waste facilities with a permit or standardized permit, an essential change was regarding the submittal timeline of renewal applications for permits expiring on or after January 1, 2025. These facilities are now required to submit a Part A and Part B renewal application at least 2 years prior to the permit expiration.

In addition to the establishment of the BES and hazardous waste facility requirement changes, the bill introduces changes to hazardous waste annual fees. The following is a summary of fee changes.

Fee Changes

1. Disposal Fee: As of July 1, 2022, the disposal fee is no longer required. Land disposal fees were to be paid directly to the hazardous waste disposal facility.
2. Generator Fee: Effective January 1, 2022, the generator fee has been replaced by the generation and handling fee (GH fee) at $49.25 per ton or each fraction of a ton of hazardous waste produced by generators who produce 5 tons or more of hazardous waste per year. The GH fee includes imported hazardous waste and used oil, items that were previously exempted. The following materials are not hazardous wastes for purposes of fee assessments; hazardous materials that are recycled and used onsite and are not transferred offsite; and aqueous waste treated in a treatment unit operating, or that subsequently operates, pursuant to a permit by rule, or pursuant to H&SC section 25200.3 or 25201.5. For additional GH fee exemptions reference HSC section 25174.8. GH fee prepayment is due November 30^th of each year (starting November 30, 2022) and final payment and return are due February 28^th of each year. The generator’s prepayment must equal 50 percent of the total amount due for the hazardous waste generation and handling fee for the entire prior calendar year.

3. Environmental Fee: SB 158 revised the period of assessment of the Environmental Fee from an annual calendar year fee to an annual fiscal year fee, revised the timing that DTSC provides data to California Department of Tax and Fee Administration (CDTFA) from November 1 to October 1, and added a fee exemption for small businesses with less than 100 employees. The FY 2022/23 Environmental fee is due the last day of February 2023 for the fiscal year in which it is assessed, that is, the calculation for number of employees will be based on employees in CY 2022. Rates are specified on the CDTFA website or DTSC’s Fee Summary page.

4. Full Permit Facility Fee: Beginning July 1, 2022, all facility fee accounts, with full or standardized permits from DTSC, are required to make one prepayment due on or before November 30^th and then file a fiscal year return and final payment due on or before the last day of February. SB 158 changes the timing of the fees from a calendar year assessment to a fiscal year assessment. Prepayment must be equal to 50 percent of the applicable hazardous waste facility fee for the current year. Rates are specified on the CDTFA website or DTSC’s Fee Summary page. For example, fiscal year 2022-2023 fee requires a 50 percent prepayment due on November 30, 2022. A final payment with your 2022-23 fiscal year return is due on February 28, 2023.

5. With regard to manifest and miscellaneous fees, SB 158 does not change the requirement to submit a manifest for transported hazardous waste and does not eliminate the authority to assess the Manifest Reprocessing Fee. SB 158 does eliminate the Manifest User Fee effective January 1, 2022, so no fees will be collected for CY 2022. In order to pay fees and file returns due to CDTFA, generators must complete submittals electronically via the CDTFA website.

Who is on the Board?

SB 158 mandates that the Board of Environmental Safety include five full-time members (three appointees of the governor, one member from the Senate Committee on Rules, and a final member from the speaker of the Assembly). The five members are nominated based on their interest in issues including but not limited to, hazardous waste management, site remediation, pollution prevention and reduction, and their understanding of the potential risks these issues pose to the general public.

If you have questions or want to know how ALL4 can help your organization with California hazardous waste requirements, please reach out to Jessica Malberg at jmalberg@all4inc.com.

The Latest on Startup, Shutdown, and Malfunction (SSM) Provisions in Air Quality Regulations

There has been a lot of activity regarding Startup, Shutdown, and Malfunction (SSM) provisions in state and federal regulations over the last few years. Namely, exemptions from emissions standards during SSM events are being removed from the regulations. The fundamental issue being addressed by these activities is that U.S. EPA determined (sometimes in response to court decisions from legal challenges) that exemptions from emissions standards during periods of SSM are not consistent with the Clean Air Act (CAA), and therefore the affected regulations must be revised to require that some emissions standard (either numeric or work practice standard) applies at all times, including periods of SSM. This position can be challenging for the regulated community; the exemptions have existed because emissions during periods of SSM may exceed emissions standards developed based on normal operations, but the SSM events are often outside of the operator’s control. The following sections provide updates on recent SSM activities in three types of regulations: National Emission Standards for Hazardous Air Pollutants (NESHAPs), State Implementation Plans (SIPs), and New Source Performance Standards (NSPS).

National Emission Standards for Hazardous Air Pollutants

The SSM exemptions in the 40 Code of Federal Regulations (CFR) Part 63 NESHAP General Provisions were vacated in December 2008 as a result of a decision by the U.S. Court of Appeals for the District of Columbia Circuit. However, the amendments to the NESHAP General Provisions were only published in the Federal Register in March 2021. In the years between 2008 and 2021, U.S. EPA revised individual NESHAP regulations to remove SSM exemptions, either by eliminating specific exemptions in the specific regulation or eliminating references to the outdated General Provisions. The removal of specific SSM provisions often occurred when the rules were being amended in response to scheduled risk and technology (RTR) reviews, so many rules already reflected the court decision by the time the General Provisions were updated.

State Implementation Plans

The SSM exemption provisions in SIPs have been contested since 2015, when U.S. EPA issued a SIP Call requiring states with SIPs containing SSM exemptions to eliminate those exemptions. However, U.S. EPA’s enforcement of the 2015 SIP Call was lacking until a September 2021 memo was issued reestablishing its 2015 position. As a result, it is common to see at least one action in the Federal Register every few weeks pertaining to the removal of SSM exemptions from the SIPs for various states. You can read more about the September 2021 memo here, but of note for purposes of today’s update is that U.S. EPA had withdrawn the SIP Calls for Iowa, North Carolina, and Texas prior to the September 2021 memo. During a September 2022 presentation at the Association of Air Pollution Control Agencies (AAPCA) fall conference, U.S. EPA indicated that they would be reestablishing the SIP Calls for those three states. There are ongoing challenges to the legality of prohibiting SSM exemptions in SIPs, based on the premise that the logic applied in December 2008 for the NESHAP regulations under section 112 of the CAA should not be applied to SIP regulations under section 110 of the CAA.

New Source Performance Standards

While most of the recent activity related to the elimination of SSM exemptions has pertained to NESHAPs and SIPs, another set of regulations may soon be added to that list: the Standards of Performance for New Stationary Sources, commonly referred to as NSPS. On September 13, 2022, several environmental groups petitioned U.S. EPA to remove SSM exemption provisions from the NSPS regulations. At the forefront of the petition’s basis is Environmental Justice (EJ); namely, the impact that SSM events could have on communities located nearby and/or downwind from industrial facilities that experience them. Indeed, the petition outlines numerous statistical observations regarding the cumulative impacts of SSM events on disadvantaged communities. The petition goes on to explain that not only are these SSM events often during or due to environmental disasters like hurricanes (which may be becoming stronger and more frequent due to climate change), but the affected communities may also already be disproportionally impacted by the environmental disasters themselves.

The petition also references the aforementioned U.S. EPA positions regarding SSM exemptions in the NESHAP regulations and SIPs, in particular concluding that the same logic for the CAA section 112 NESHAP regulations can be applied to the CAA section 111 NSPS regulations. The key provision of the CAA at issue for the NESHAP regulations was section 302(k), which defines emissions standards as applying “on a continuous basis.” The petition presents the position that for the NSPS regulations, CAA section 302 defines “standard of performance” as “a requirement of continuous emission reduction,” and therefore the same connection can be made as for the NESHAP regulations. The petition acknowledges that, like the NESHAP regulations, U.S. EPA has already addressed SSM exemptions in some NSPS regulations as they are amended for other reasons; however, the petition calls on U.S. EPA to promulgate a single rulemaking to eliminate all remaining SSM exemptions in the NSPS regulations.

Takeaways

While U.S. EPA acknowledged EJ as a factor when it reestablished its position on SSM exemptions in SIPs in its September 2021 memo, EJ was not addressed in detail. However, it seems likely that U.S. EPA’s response to the petition on SSM exemptions in NSPS will more thoroughly address EJ, as the petition specifically focuses on EJ and references the Biden administration’s commitment to addressing EJ. It also seems that eventually no air quality regulations will allow for exemptions from emissions standards during periods of SSM. To address SSM exemptions, rules may be revised to state that emissions standards that have historically applied during normal operations now apply at all times, or they may be revised to apply alternative standards during periods of startup and shutdown (separate standards for malfunction periods are not likely). Be sure to monitor rulemaking activity at the federal, state, and local levels and participate in the rulemaking process to understand how your applicable requirements and associated methods of compliance may change. Please contact me at lkroos@all4inc.com with any questions.

Updates from COP27

The 2022 United Nations Framework Convention on Climate Change (UNFCC), also known as the Conference of the Parties or COP27, is being held from November 6^th to 18^th in Sharm El Sheikh, Egypt. This annual conference is celebrating its 27^th anniversary and includes the original 194 countries that signed the conference’s Paris Agreement in 1992 pledging to “pursue efforts” to limit global temperature rise to 1.5 degrees Celsius.¹ The goal of the conference is to build on the outcomes of COP26 and deliver action on an array of issues critical to tackling the climate emergency, from reducing greenhouse gas (GHG) emissions, building resilience, and adapting to the inevitable impacts of climate change, to delivering on the commitments to finance climate action in developing countries.²

Major Updates from the Conference

There have been several significant updates from this year’s COP27 conference that make positive strides towards curbing GHG emissions globally. The following paragraphs outline the major updates from the conference:

• The International Sustainability Standards Board (ISSB) confirmed that the CDP, an international nonprofit that helps companies and cities disclose their environmental impact, will be officially incorporated into the ISSB’s IFRS S2 Climate-related Disclosures Standard (IFRS S2).³ The IFRS S2 disclosure will provide investors and consumers with quicker access to more consistent and accurate climate-related information. The integration of the CDP with the ISSB climate standards will assist with normalizing Environmental, Social, and Governance (ESG) data definitions for various industries, allowing for increased transparency, better industry benchmarking, improved gap analysis, reduced reporting burdens, and overall better collaboration. According to CDP’s chief impact officer Nicolette Bartlett, the integrated frameworks will “not only further support companies and financial institutions to build resilience and adapt, as climate risk disclosure was found to do by the Intergovernmental Panel on Climate Change, but to further increase ambition and action…what we don’t measure we can’t manage. We live in a global world and need a global understanding of the risks we face, the solutions available, the progress made and the laggards holding us back. CDP is pleased to put our weight behind driving the implementation of this long-awaited global standard.”⁴ Paul Dickinson, CDP’s founder chair also stated, “this will be critical in boosting corporate action and accountability, providing financial markets, governments and regulators with clear, comparable data to inform their decision making.”⁵
• The White House Council on Environmental Quality proposed the Federal Supplier Climate Risks and Resilience Rule which would require major U.S. Federal contractors to publicly disclose their GHG emissions and climate-related financial risks and set science-based emissions reduction targets.⁶ The rule would cover approximately 85 percent of the GHG emissions related to the U.S. Federal supply chain “which are estimated to be more than twice as large as the emissions from operating the Federal Government’s 300,000 buildings and 600,000 vehicles combined”.⁷ This measure is a huge mark for the U.S. because it sets the standard for other countries to follow to regulate GHG emissions and work towards the goals set forth by the Paris Agreement. The proposed rule states that “…the largest suppliers including Federal contractors receiving more than $50 million in annual contracts would be required to publicly disclose Scope 1, Scope 2, and relevant categories of Scope 3 emissions, disclose climate-related financial risks, and set science-based emissions reduction targets. Federal contractors with more than $7.5 million but less than $50 million in annual contracts would be required to report Scope 1 and Scope 2 emissions. All Federal contractors with less than $7.5 million in annual contracts would be exempt from the rule. Small businesses with over $7.5 million in annual contracts would only be required to report Scope 1 and Scope 2 emissions under the proposed rule…”⁸

Furthermore, the proposed rule would provide a targeted, risk-based approach due to its focus on major U.S. Federal suppliers. It would also promote industry-focused collaboration and innovation by requiring major U.S. Federal contractors to publicly disclose their GHG and climate-related risks. The rule would put serious pressure on industries to find ways to decarbonize their activities internally through management techniques and externally through supply chain engagement, industry collaboration, best-practice learning, the utilization of technology, and innovation.

• A focus on methane emissions reductions has been a major topic at the COP27 conference. The focus on methane comes on the heels of the Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment Report that states countries must reduce methane emissions by at least 30 percent by 2030 to keep the 1.5°C temperature limit within reach.⁹ During the COP27 conference, the U.S. Environmental Protection Agency (U.S. EPA) announced that it will be strengthening its proposed standards to reduce emissions of methane and other air pollutants and combat climate change.¹⁰ The U.S. EPA’s proposed methane reduction standards supplement the U.S. EPA’s November 2021 “Emissions Guidelines to Reduce Methane and Other Harmful Pollution from the Oil and Natural Gas Industry” proposal and incorporate a broad range of stakeholder input and feedback, including nearly half a million public comments.

To help with the identification of areas with large methane emissions, the United Nations also announced at COP27 that they will launch a public database of global methane leaks detected by space satellites.¹¹ The database system is called MARS or Methane Alert and Response System and will encourage companies and government to cut methane emissions where detected.¹² The MARS system will use existing satellite technologies to provide governments and businesses with data to determine areas of high concentrations and the right measures to mitigate GHG emissions. “MARS will be the first publicly available global system capable of transparently connecting methane detection to notification processes and will use state-of-the-art satellite data to identify major emissions events, notify relevant stakeholders, and support and track mitigation progress.”¹³

U.S. President Joe Biden stated at COP27 that the updated EPA methane proposal and the implementation of the MARS program would lead to an 87 percent reduction in U.S. methane emissions from covered sources by 2030 from baseline 2005 levels.¹⁴ Biden went on to say that “the planned rules affect hundreds of thousands of U.S. wells, storage tanks and natural-gas processing plants, and require companies to replace leaky, older equipment and buy new monitoring tools.”¹⁵ The EPA’s updated methane standards will provide a more complete set of regulations for companies to follow and comply with, leading to significant GHG emission reductions.

As mentioned, the updated methane standards include a comprehensive list of cost-effective approaches that oil, and natural gas facilities can follow to comply with the regulation. The following list provides an overview of these approaches:

• Routinely monitor all well sites for leaks at less cost, and until they are closed properly.
• Flexibility to use innovative and cost-effective methane detection technologies, with a streamlined process for approving new detection methods as they become available.
• Quickly identify and fix large methane leaks by leveraging data from remote sensing technology.
• Properly operate flares to reduce emissions, comply with revised requirements for associated gas flaring.
• Comply with emission standards for dry seal compressors, which are currently unregulated.
• Comply with a zero-emissions standard for pneumatic controllers and pneumatic pumps at affected facilities in all segments of the industry.
• Increase recovery of natural gas that otherwise would go to waste – enough gas from 2023 to 2035 to heat an estimated 3.5 million homes for the winter.¹⁶

In addition, the new methane proposal includes a “Super-Emitter Response Program” that would require operators to respond to credible third-party reports of high methane leaks.¹⁷ The program would essentially require oil and gas companies to respond to large-emission events identified by EPA-approved third party entities leading to a wider circle of methane leak investigators and potentially a rise in communities partnering with nonprofits and others to investigate oil and gas infrastructure within their boundaries.¹⁸ Darin Schroeder, an attorney with the Clean Air Task Force states that “there are a lot of possibilities for this super-emitter program to kind of share the burden and really make sure that when we see a big leak, we can get it stopped as quickly as possible.” ¹⁹

Looking Forward

This year’s COP27 conference is proving to be an important one for the annual global meeting compared to prior years. The announcement from the ISSB that they will integrate their reporting protocols with those of the CDP shows that climate reporting is becoming more standardized and normalized, which will help companies benchmark against their competition and learn more efficient ways to reduce the GHG emissions associated with their operations. The announcement of the U.S. Government’s Federal Supplier Climate Risks and Resilience Rule is a big step towards pushing industries towards decarbonization through policy and regulation. Companies will now be forced to disclose their ESG data so investors and consumers can evaluate how that company is performing with respect to the goals set forth by the Paris Agreement. The newly updated methane standards set forth by the U.S. EPA are another important step to fight global climate change and assist companies with their reduction strategies. The updates out of COP27 are promising advancements in the global fight to reduce global GHG’s as set forth by the Paris Agreement. It is now up to participating countries and their governments to adopt effective policies and measures to promote decarbonization through collaboration.

If you are interested to learn more about the COP27 conference, or how ALL4 can help your organization with its ESG and climate-related needs, please reach out to James Giannantonio, our ESG Managing Consultant, at jgiannantonio@all4inc.com.

Sources of Information:

[1] https://www.bbc.com/news/science-environment-63316362

[2] https://www.un.org/en/climatechange/cop27

[3] https://www.edie.net/cdp-to-integrate-issb-standards-into-disclosure-platform/

[4] https://www.edie.net/cdp-to-integrate-issb-standards-into-disclosure-platform/

[5] https://www.theasset.com/article-esg/48056/cdp-platform-adds-ifrs-s2-climate-disclosures

[6] https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/10/fact-sheet-biden-harris-administration-proposes-plan-to-protect-federal-supply-chain-from-climate-related-risks/

[7] https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/10/fact-sheet-biden-harris-administration-proposes-plan-to-protect-federal-supply-chain-from-climate-related-risks/

[8] https://reason.com/volokh/2022/11/11/biden-administration-to-require-federal-contractors-to-report-and-reduce-greenhouse-gas-emissions/?comments=true

[9] https://abcnews.go.com/Technology/launching-satellite-based-system-detect-methane/story?id=93055245

[10] https://www.epa.gov/newsreleases/biden-harris-administration-strengthens-proposal-cut-methane-pollution-protect

[11] https://www.reuters.com/business/cop/cop27-un-hunt-sources-climate-warming-methane-space-2022-11-11/

[12] https://www.reuters.com/business/cop/cop27-un-hunt-sources-climate-warming-methane-space-2022-11-11/

[13] https://abcnews.go.com/Technology/launching-satellite-based-system-detect-methane/story?id=93055245

[14] https://www.wsj.com/articles/biden-to-announce-restrictions-on-methane-emissions-at-cop27-11668166064

[15] https://www.wsj.com/articles/biden-to-announce-restrictions-on-methane-emissions-at-cop27-11668166064

[16] https://www.epa.gov/newsreleases/biden-harris-administration-strengthens-proposal-cut-methane-pollution-protect

[17] https://www.epa.gov/newsreleases/biden-harris-administration-strengthens-proposal-cut-methane-pollution-protect

[18] https://www.eenews.net/articles/how-epas-draft-methane-rule-targets-super-emitters/

[19] https://www.eenews.net/articles/how-epas-draft-methane-rule-targets-super-emitters/

Massachusetts Stormwater Permitting and U.S. EPA’s Residual Designation Authority

U.S. EPA is using its Residual Designation Authority (RDA) to require stormwater permits for commercial, industrial, and institutional properties in the Charles, Mystic, and Neponset River watersheds located in the Boston metropolitan area of eastern Massachusetts. Under the Clean Water Act (CWA), U.S. EPA regulates pollution discharges to water sources through National Pollutant Discharge Elimination System (NPDES) permits. These permits are designated for specific source categories; however, U.S. EPA maintains the right to require permits on a case-by-case basis, referred to as its RDA. It is noteworthy that most states have delegated authority from U.S. EPA to administer the NPDES program; however, Massachusetts is one of only three states (New Hampshire and New Mexico being the other two) without delegated authority, hence why this permitting action is being facilitated by U.S. EPA.

The Charles, Mystic, and Neponset Rivers are impaired by excess nutrients, sediments, and lack of dissolved oxygen, amongst other pollutants. As a result of this impairment, an increase in algae blooms and high bacteria levels have been observed in these watersheds, impacting both human health and the environment. Under the current permitting system, commercial and industrial facilities are required to obtain permits for stormwater discharge to reduce pollutant loading, including in these watersheds. These permits are intended to help reduce the pollutant loading into the watersheds; however, U.S. EPA has determined that these permits alone are not enough to reduce pollutant levels sufficiently to meet the established Total Maximum Daily Loads (TMDLs). According to the petition submitted by the Conservation Law Foundation, both U.S. EPA and MassDEP agree that the reason for the TMDL exceedances is due to non-point source pollution from currently unregulated sectors.

U.S. EPA has also cited environmental justice and climate change concerns as a basis for the RDA in this case. The Charles, Mystic, and Neponset Rivers all flow through the Boston metropolitan area, which includes several historically disadvantaged communities. Climate change concerns, such as increased precipitation and subsequent flooding, add additional potential economic, environmental, and health impacts in this area.

What does this announcement mean?

As a result of the U.S. EPA exercising its RDA authority, commercial, industrial, and institutional properties will be required to obtain coverage under a new general permit or individual permits; the exact permit language is to be announced. Generally speaking, properties with one or more acres of impervious surface will be required to obtain a permit. Once a permit has been obtained, these properties will need to implement stormwater Best Management Practices (BMPs) to reduce pollutant loading to nearby water bodies. The U.S. EPA will rely on proven BMPs such as parking lot sweeping, installing rain gardens or other infiltration practices, and the reduction of impervious surfaces. While the U.S. EPA is requiring additional sectors of the economy to obtain permits, it appears the real strategy is to reduce pollutant loading by reducing runoff from impervious surfaces. A secondary benefit to the implementation of BMPs is expected to be a reduction in flooding and the decrease in heat island effects. U.S. EPA’s renewed focus on environmental justice and climate change means that similar actions are likely in the coming years.

What happens now?

This announcement does not mean that immediate action is required by property owners. U.S. EPA will issue a draft general permit for public comment in the near future. After the public comment period, a final permit will be issued, at which time property owners will be subject to the provisions of that permit. A current lawsuit by the Conservation Law Foundation has requested the court order U.S. EPA to publish the draft permit in the Federal Register and provide a timeline for issuing a draft permit. Industry groups have also indicated they are examining the issue and may introduce lawsuits to stop the implementation of the RDA.

ALL4 will continue to track the process. Please contact Clayton Queen at cqueen@all4inc.com with any questions.

Drinking Water and the CCL5

The United States Environmental Protection Agency (U.S. EPA) has recently published an update to the Contaminant Candidate List (CCL) – this is the fifth time this list has been updated since it was first published in 1996, making this the CCL5. The CCL lists contaminants in drinking water that are known or are anticipated to occur in public water systems but are not currently subject to any national primary drinking water standards, as set forth by the Safe Drinking Water Act (SDWA). U.S. EPA is required to review and update the CLL on a 5-year cycle and to consider the effect of contaminants on different population subgroups who could be exposed. The most recent CCL5 includes the following:

• 66 Individual Chemicals
• Three chemical groups
  • Cyanotoxins
  • Disinfection byproducts (DBPs)
  • Per- and Polyfluoroalkyl Substances (PFAS)
• 12 Microbial Contaminants

The CCL contains chemical groups, instead of only listing specific chemicals, because the chemical groups meet the CCL requirements and are also identified as priorities under other U.S. EPA actions. Just because a group is listed as a single line item, it does not mean that the group will be regulated as a whole in the future. For example, U.S. EPA plans to propose national primary drinking water standards for perfluorooctanic acid (PFOA) and perfluorooctane sulfonate (PFOS)—two specific subgroups of PFAS—in late 2022. These two substances were included in the CCL4 that was published in February 2021 and will soon be subject to a proposed regulation nearly two years later.

One of the major changes in the CCL5 is the expansion of the definition of PFAS as it pertains to the chemical group listed in the CCL. This update was championed by both U.S. EPA’s Science Advisory Board (SAB) and drinking water utilities. However, industry stakeholders have been cautious in expanding PFAS definitions since not all PFAS pose the same health and environmental risks.

The updated PFAS definition in CCL5 was authored specifically to target types of PFAS known to occur in drinking water. PFAS are classified by their molecular substructures, and the updated definition captures PFAS that have ether substructures or are highly branched. U.S. EPA has made it clear that as the science of PFAS is further explored, the definition of PFAS and how they are subcategorized is likely to evolve as well.

It is important to note that although a listing on the CCL is the first step in the regulatory process, it does not guarantee that any particular contaminant will be regulated in the future. The law requires that U.S. EPA make regulatory determinations for at least five contaminants from the most recent CCL within five years after the completion of the previous set of regulatory determinations. This ensures that emerging contaminants are being considered and that the CCL recommendations are further researched.

ALL4 recommends that facilities that engage in any of the following processes familiarize themselves with the CCL5 and note any listed contaminants that are likely present in either influent or effluent streams.

• Industrial Wastewater Discharge
• Industrial Stormwater Discharge
• On-Site Drinking Water Treatment Plant
• Process Water Treatment Plant

The SDWA ensures that drinking water standards and regulations are maintained as current, and ALL4 is tracking emerging contaminants of concern with regards to water quality. Please contact our EHS Practice Director, Heather Brinkerhoff (hbrinkerhoff@all4inc.com) with any question you may have.

Kentucky Publishes Fish Testing Report on PFAS Levels

On Friday, September 9^th, the Kentucky Energy and Environment Cabinet (Cabinet) published their Interim Report on Initial Fish Tissue Results for Per- and Polyfluoroalkyl Substances (PFAS). This is the latest communication on the presence of PFAS in the waters of the Commonwealth. This adds to the data collected by Kentucky Department for Environmental Protection (KDEP) in 2019 from public community drinking water systems (81 sample locations) and in 2020 from state-wide surface water (40 sample locations). The KDEP will continue to sample for PFAS, communicate results, and update consumption guidance based on the findings.

PFAS are a large group of man-made chemicals that have been manufactured for decades in the United States and other parts of the world. These compounds are widely used in many items, such as non-stick cookware, water-repellant clothing, stain-resistant carpets and upholstery, and fire-fighting foam. Because of their widespread use and their persistence in the environment, PFAS contamination has been found in water, air, and soil, as well as detectable levels in humans, animals, and food products. Studies of certain PFAS have shown that exposure may be associated with various adverse human health effects. In addition, the U.S. Environmental Protection Agency (U.S. EPA) preliminary analysis on whether concentrations of certain PFAS compounds in human blood could be associated with eating fish found a positive correlation.

KDEP sampled fish from seven different streams between 2021-2022. Additionally, in early 2022, fish samples were collected from 13 lakes. Samples represented both predator and pan fish including largemouth and smallmouth bass, rock bass, rainbow trout, bluegill, green sunfish, and longear sunfish. The fish tissue samples revealed levels of perfluorooctane sulfonic acid (PFOS), one of the most discussed chemicals in the PFAS group, between 0.31 and 50 parts per billion (ppb). The average PFOS concentration was higher in fish from the stream study (13 ppb) compared to fish from the lake study (5 ppb). An additional 15 different PFAS compounds were detected at concentrations of 18 ppb or less. This tissue study represents only a small sampling of Kentucky waterways and fish species.

Absent a standard for PFAS, Kentucky officials recommend continuing to follow the fish consumption guidance for mercury and any other site-specific advisories. These recommendations are broken down by population and predatory fish category. U.S. EPA has also not yet issued fish consumption standards for PFAS, however, according to the PFAS Strategic Roadmap, U.S. EPA is continuing fish tissue monitoring activities to further aid State and Tribal fish advisory programs. For drinking water, U.S. EPA has recently revised interim lifetime health advisories for four PFAS compounds and is also in the process of developing maximum contaminant levels (MCL) for PFOS and perfluorooctanoic acid (PFOA), with proposed draft standards anticipated by the end of 2022.

The development of information and evolving regulatory landscape provides many questions, and not a lot of answers, to date. Although PFAS are currently unregulated in the Commonwealth, KDEP, Kentucky Department of Fish and Wildlife Resources, and the Kentucky Department for Public Health are all working with U.S. EPA and other public health and environmental protection agencies across the nation on appropriate ways to regulate fish consumption levels for PFAS. The Kentucky PFAS website includes current state sampling data and links to other relevant data sources.

ALL4 will continue to provide information and updates on PFAS regulations as they develop. For additional information, check out this recent article on U.S. EPA’s proposal to designate PFOA and PFOS as hazardous substances under CERCLA. If you would like to know more about how ALL4 can assist you with evolving PFAS regulatory development or general environmental, health and safety issues, please contact Scott Kirkpatrick at skirkpatrick@allinc.com or one of our regional offices.

Carolinas Air Quality Updates

The Carolinas Air Pollution Control Association (CAPCA) hosted the Fall Technical Workshop and Forum on October 12-14, 2022, in Myrtle Beach, South Carolina. The technical sessions included air program updates from the United States Environmental Protection Agency (U.S. EPA) Region IV, the South Carolina Department of Health and Environmental Control (SC DHEC), and the North Carolina Department of Environmental Quality (NC DEQ). Daniel Blackman, the Regional Administrator of the U.S. EPA Region IV, provided the Keynote Address. Session topics also included tools for compliance, Environmental, Social, and Governance (ESG), review of the National Ambient Air Quality Standards (NAAQS), and a legal session focused on federal enforcement actions. Technical session highlights are summarized below.

NAAQS Review

The federal and state agency presentations all covered the hot topic of the expected lowering of the Particulate Matter less than 2.5 micrometers in aerodynamic diameter (PM_2.5) NAAQS. Environmental professionals are keeping a close eye on the release of the proposed rule that is anticipated at the end of 2022. It is currently unknown where the standard will be set, but the Clean Air Scientific Advisory Committee (CASAC) recommendations are as follows:

• Annual Standard currently at 12 ug/m³
  • Majority Report: 8-10 ug/m³
  • Minority Report: 10-11 ug/m³
• Daily Standard currently at 35 ug/m³
  • Majority Report: 25-30 ug/m³
  • Minority Report: maintain current standard

The U.S. EPA Administrator will consider the recommendations from the CASAC and U.S. EPA Staff on where to set the standard. A public comment period will follow the proposed rule and U.S. EPA’s current goal is to issue the final rule in Spring of 2023. The states will have one year after the effective date of the new NAAQS to make attainment designation recommendations and the U.S. EPA will have two years after the effective date of the new NAAQS to set the final designations. A new NAAQS must be considered on the effective date of the rule for permit applications still being processed. In areas that attain the NAAQS, it will become more difficult to model compliance with the PM_2.5 NAAQS because the background will be closer to the standard. For nonattainment areas, states will establish Reasonable Available Control Technology (RACT) rules and major permitting will require emissions offsets and application of the Lowest Achievable Emission Rate (LAER). Facilities can plan ahead by performing air dispersion modeling analyses to understand the impact of a reduced NAAQS, reviewing PM emissions reduction projects, and evaluating emissions factors refinements.

SC DHEC Update

SC DHEC is proposing to amend the definition of insignificant activity within the Title V Operating Permit Program located in SC Regulation 61-62.70.5(c), to change the Toxic Air Pollutant threshold from less than 1,000 pounds per month to less than 1,000 pounds per year. This change impacts the definition of insignificant activity as it relates to obtaining a Title V permit; however, the construction permit exemption criteria is not changing. The change is expected to take effect in December 2022. As a reminder, sources that meet this exemption threshold still are required to evaluate how the change impacts compliance with SC Regulation 61-62.5, Standard No. 8 Toxic Air Pollutants.

SC DHEC sent a proposed rule and fact sheet to 186 affected facilities impacted by the Risk Management Plan (RMP) proposed rule changes. The public comment period ended on October 31, 2022, and the estimated date of issuance of the final rule is in third quarter 2023.

NC DEQ Update

NC DEQ provided rule development updates on the potential for NC to join the Regional Greenhouse Gas Initiative (RGGI), synthetic minor noticing procedures and permit fees, and electronic submittal of documents. NC DEQ is currently developing a fiscal analysis and EJ report for RGGI, which will be followed by a public hearing and then final action by the Environmental Management Commission (EMC). NC DEQ is in the process of getting clarification on the details from the U.S. EPA to move forward with the synthetic minor noticing procedure changes and the stakeholder process for evaluating the synthetic minor permit fees is expected to be executed in late 2022 or early 2023. Finally, NC DEQ is working toward a rule change that would allow paper submittals to be submitted electronically.

Closing

The session entitled “Permitting Basics: Part 1 – Before the Application” was introduced as the first part of a three-part series that will continue at two future CAPCA meetings. We look forward to the presentations that will follow in 2023!

The CAPCA meeting is a great opportunity to network and hear the latest air regulatory updates. If you have questions regarding air permitting and compliance in North or South Carolina or the topics mentioned here, please reach out to Claire Corta at ccorta@all4inc.com or 919-578-4195.

U.S. EPA OLEM September 2022 EJ Action Plan: What you need to know

In September 2022 the United States Environmental Protection Agency (U.S. EPA) Office of Land and Emergency Management (OLEM) published their Environmental Justice (EJ) Plan – EJ Action Plan: Building Up Environmental Justice in EPA’s Land Protection and Cleanup Programs. Back in February, ALL4 highlighted anticipated changes OLEM planned based on the initial Draft Plan. The final Plan has not changed much from the draft.

The OLEM EJ Action Plan has a four-pillar approach:

• Strengthen Compliance
• Incorporate EJ Considerations
• Improve Community Engagement
• Justice 40

WHAT ACTION IS OLEM TAKING?

Under the pillar of strengthening compliance, OLEM is focusing on specific programs including the Resource Conservation Recovery Act (RCRA), Risk Management Plan (RMP) rule updates, Spill Prevention Control and Countermeasure (SPCC), and Facility Response Plans (FRP). For Indian Territories, resources will be allocated to enhancing Underground Storage Tanks (USTs) and the Emergency Planning and Community Right to Know Act (EPCRA).

• RCRA: U.S. EPA, under “Good Governance,” has started developing processes and tools meant to track and follow up with the general public when concerns are raised in public meetings that may be outside the scope of RCRA.
• RMP regulation: U.S. EPA published the proposed rule August 31, 2022 in the Federal Register (FR) to reincorporate key prevention and response measures of the 2017 RMP Amendments rule. It also proposes additional requirements for accident prevention programs at facilities that are in or near EJ communities. U.S. EPA is taking comments until October 31, 2022. The final rule is expected in summer 2023.
• Inspections of facilities with SPCC Plans and 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. These inspections are continuing. 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 fully operational in 5 to 7 years depending on funding.

Under EJ considerations, Hazardous Waste Treatment, Storage, and Disposal Facility (TSDF) Universe Analysis and Mapping 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. Further, the EJ screening tools will be applied to assist in evaluating Superfund Sites.

While the EJ Action Plan provides actions in multiple areas, including community assistance, ALL4 has concentrated on areas that result in or may result in changes to regulations that affect your facility’s compliance. While improvements to community engagement and Justice 40 are important, the actions are more internal facing to the agency to achieve the outcomes. ALL4 will continue to monitor EJ developments and provide periodic updates. If you have any questions, please reach out to either Rich Hamel, rhamel@all4inc.com or Karen Thompson, kthompson@all4inc.com.