January 2023

OSHA Requires Employers to Update Injury Tracking Application Through Login.gov

Each year, the Occupational Safety and Health Administration (OSHA) requires all applicable employers to upload information to the Injury Tracking Application (ITA) by March 2. For the 2022 reporting year, OSHA has transitioned login information from individual accounts to “login.gov”. All applicable employers must update their accounts by March 2, 2023.

OSHA will be transitioning its login procedure for employers that are required to use the OSHA ITA. This new procedure will utilize one single account to access the applications, login.gov, instead of individual accounts. All current and new account holders will be required to connect their ITA account to a login.gov account utilizing the same email address to access the application for reporting of 2022 calendar year Form 300A information. OSHA is encouraging all entities to review their published guidance on connecting your accounts. The changes to reporting will not affect the March 2 deadline and employers are encouraged to ensure their account access is up to date or risk failing to timely upload their Form 300A.

The OSHA provided ITA website allows three options for injury and illness data submissions. The data may be transmitted by an application programming interface, manually entered, or by uploading a CSV file to add multiple entities concurrently. OSHA does not send out notifications to employers that are required to report the Form 300A data. Therefore, it is up to the employer to determine if they meet the industry and size reporting criteria. OSHA has a tool that can be used to determine if your employer is required to submit the data. The ITA Coverage Application found on the OSHA website uses the state, peak number of employees for the previous calendar year, if the establishment is a government facility, and NAICS code to determine if you are required to submit your 300A electronically. If you are in one of the 22 states with their own State Plan, reach out directly to state OSH office. An interactive map of these states with contact information can be found on the OSHA website, under the State Plans tab.

More information, including step-by-step instructions and FAQs about creating a login.gov account can be found here: https://www.osha.gov/injuryreporting/faqs

ALL4 provides Safety and Health and Industrial Hygiene services. If you have questions or need assistance with OSHA recordkeeping and reporting, please reach out to Victoria Sparks at vsparks@all4inc.com

SBTi Releases Guidance for Maritime Decarbonization

The maritime sector plays an important role in maintaining the global economy and is the foundation of international trade. There has been a growing call for the maritime industry to decarbonize its activities due to its present and future contributions to greenhouse gas (GHG) emissions which are accelerating global climate change. The United Nations Conference on Trade and Development (UNCTAD) reported that 80% of global trade by volume is carried by sea and that the maritime industry contributes to about 3% of global GHG emissions, an amount which is on pace to increase more than fivefold by 2050.¹ As an industry that is heavily reliant on fossil fuels, there is an enormous opportunity for the maritime sector to decarbonize to assist in meeting the Paris Agreement’s goal to substantially reduce GHG emissions this century to limit warming to less than 2 degrees Celsius, while pursuing efforts to limit the increase even further to 1.5 degrees Celsius.² An International Council on Clean Transportation (ICCT) report found that although ocean-going ships could contribute to 17% of anthropogenic GHG emissions by 2050, “by mid-century marine emissions could be cut by as much as 71% from projections through operational changes, efficiency improvements, use of sustainable biofuels, and zero-emission technologies”.³ Furthermore, according to a University Maritime Advisory Services (UMAS) Transition Strategy Report, the maritime industry must scale up climate action and cut its carbon dioxide (CO2) emissions by 45% by 2030 and reach net-zero by 2040 to get on track and meet the global climate goals.⁴

The call to decarbonize the maritime industry led to the November 2022 publication of the Science Based Target initiative’s (SBTi) guidance titled Science Based Target Setting for the Maritime Transport Sector. This world’s-first maritime decarbonization guidance was designed for shipping companies that own and operate ocean-going vessels and for those setting targets for supply chain emissions associated with maritime trade. The SBTi is an international initiative that seeks to define best practices in emissions reductions and net-zero targets in line with climate science and is considered the “gold standard” for certifying companies’ decarbonization targets. To date, more than 4,000 companies that have submitted science-based commitments and targets, with more than 2,000 already being approved. Working in conjunction with the World Wide Fund for Nature (WWF), the Smart Freight Centre (SFC), and UMAS, the new SBTi maritime guidance covers the movement of all goods and people on shipping vessels, and most importantly, outlines how much and how quickly shipping companies need to cut their GHG emissions to be in line with the global goals set forth by the Paris Agreement.⁵

The SBTi maritime guidance was developed for all users and providers of marine transportation services and applies to maritime types such as ship owners, ship operators, ferry operators, commodity traders, consumer goods companies, cargo owners, charterers, cruise companies, commuters, and logistics service providers. The two main components of the SBTi maritime guidance include the technical guidance and the corresponding toolkit, including a GHG calculator, which shipping companies can use to measure the carbon intensity of their various activities and assist in the setting of near- and long-term science-based targets related to their owned operations. The new SBTi maritime guidance and toolkit provide shipping companies with an approach that can enable and clearly communicate their adoption of a strategy unambiguously aligned with the Paris Agreement.

There are several emerging technologies that shipping companies are seeking out to start their maritime decarbonization journeys. The use of alternative fuels other than fossil fuels for powering ships including the use of hydrogen and ammonia is the most promising advancement in recent years. According to the International Energy Agency (IEA), “ammonia and hydrogen will be the main marine fuels if the world reaches net-zero in 2050, accounting for about 60% of the market together, and with ammonia occupying the largest share”.⁶ Hydrogen and ammonia have the potential to be fundamental in decarbonizing the global maritime industry due to both gases being widely traded commodities with the global infrastructure already in existence to produce, store, and transport it for maritime purposes. Furthermore, unlike electric batteries, hydrogen and ammonia fuel cells need to be fueled less frequently and are better suited to larger ships that take longer, international routes.

There are a few companies that are paving the way to help decarbonize the maritime industry using hydrogen and ammonia instead of fossil fuels. A great real-world example of the potential hydrogen can play in decarbonizing the maritime industry can be seen through the company Future Proof Shipping. Future Proof Shipping, based out of the Netherlands, successfully retrofitted its inland container vessel Maas to run on 100% hydrogen using fuel cell technology and has plans to retrofit an additional vessel in 2023.⁷ In addition, Amogy, is a great example of a company striving to use ammonia as its main fuel source for its maritime activities. Amogy is developing a chemical reactor that takes ammonia stored in fuel tanks and converts it into its constituent parts of hydrogen and nitrogen.⁸ The hydrogen flows through a fuel cell, which converts chemical energy into electricity to drive the motors of the ships. Companies like Future Proof Shipping and Amogy will help propel the global adoption of hydrogen and ammonia alternative fuels for shipping purposes because they have the technology to do so. This will help other companies adopt the technology and innovate accordingly, making the transition away from fossil fuels less painful for the industry.

If you are interested in learning more about how ALL4 can assist your company with its environmental, social, and governance (ESG) goals, including setting a scienced-based target with the SBTi, please reach out to ALL4’s James Giannantonio, Managing Consultant of ESG & Sustainability, at jgiannantonio@all4inc.com.

Sources:

2023 Look Ahead: Digital Solutions (Industry 4.0)

Expectations both internally and externally (public, regulatory agencies) are continually increasing around availability, quality, transparency of environmental and health and safety data (EHS). This data is typically expensive to collect, manage and report and digital solutions can help address those challenges through automation, harmonization/standardization, streamlining and improved efficiencies, and removal of duplicative efforts.

In 2023 and beyond, there will be more need and opportunity to leverage digital solutions to tackle ever-increasing demand for more frequent and granular data, to allow for companies to move from being reactive to being proactive and preventive. External data consumers require assurances on data quality including expanding best practices and pending regulations related to ESG data. With evolving SEC regulations, international pressure, etc. the concept that EHS data is auditable to the level of financial data directly applies to the need for clarity on the source of data, processing of the data, and audit trails for the inputs into calculated and reported values.

Related to these evolving needs is an offering that two of our teams are collaborating on to develop and implement a digital strategy that includes upstream data collection system (CEMS, PEMS), the use of a digital transformation tool such as a data acquisition and handling system (DAHS) or other extraction/transformation/loading tools that can be configured to incorporate client business rules, validation best practices, etc., so that downstream EHS systems receive high quality, consistent, pre-processed data that has full transparency for audit purposes but that can also be used more easily used in calculations and reports. For example, let’s follow the breadcrumbs on a fuel value being used in an ESG calculations. Through developing a digital strategy that incorporates multiple digital tools that all talk to each other and work hand-in-hand seamlessly we can show that the meter used to capture the fuel flows was calibrated and providing accurate data, we can show how individual minute data was aggregated and any missing data substituted using best management practices (not via manual interventions), we can show how this aggregated fuel value was used in a standard calculation methodology with rigor on other relevant values such as emission factors and how teams can be alerted to discrepancies and outlier conditions before they are buried in an annual emission number. This concept removes subjectivity and the need for most if not all manual intervention in the data capture, processing, managing and outputs (reports, dashboards, alerts and notifications).

On the safety side, companies are adopting technologies such as wearables, internet of things (IoT), beacons, sensors and other tools that permit the capture of exponentially more data which then needs to be analyzed in order to glean the benefits and insights. Fortunately no company has a high enough volume of employee injuries to qualify as “big data” but if companies use technology to capture conditions, worker positions, operational data on nearby equipment, etc., then we are getting into the volume of data that could provide the ability to identify underlying issues and contributing causes for safety events. With these increased volumes, simple spreadsheet analysis or even manual reviews are less practical and digital tools such as artificial intelligence and machine learning may be required.

ALL4 has a Digital Solutions Practice (DSP) comprised of IT and EHS professionals who understand the challenges and solutions available to tackle these challenges. Please contact Stephanie Taylor at staylor@all4inc.com or Linsey DeBell (ldebell@all4inc.com).

2023 Air Quality Monitoring Look Ahead

In our 2022 Air Quality Monitoring Look Ahead, we looked at community organized low-cost monitoring networks, the continued use of Federal Reference Method (FRM) and Federal Equivalent Method (FEM) air quality monitoring, and funding for community partnerships for implementation of monitoring networks to reduce air pollution in communities that are disproportionately impacted by air pollution. Community-led monitoring networks will continue to expand in 2023 as there is an increased reliance on low-cost monitoring stations. The Inflation Reduction Act has earmarked funds to support the continued effort of advancing environmental justice and put the United States in line to achieve the Biden Administration’s climate goals. The funding includes the installation of more FRM and FEM equipment that could be installed in environmental justice areas or co-located with community-led monitoring networks as a reference point to aide in the validation of data.

In addition to additional funding for more ambient monitoring sites, changes may be in place for some FRM and FEM monitoring guidance. As discussed in Dan Dix’s PM_2.5 Annual National Ambient Air Quality Standard (NAAQS) Proposed to be Lowered article, U.S. EPA is proposing to lower the standard from the current 12 micrograms per meter cubed (µg/m³) to a level between 9 µg/m³ and 10 µg/m³. Given the importance of the PM_2.5 NAAQS updates, U.S. EPA has noted that they are proposing changes to PM_2.5 monitoring requirements within 40 CFR Part 50 – National Primary and Secondary Ambient Air Quality Standards Appendix L – Reference Method for the Determination of Fine Particulate Matter as PM_2.5 in the Atmosphere which outlines how to calculate the design value (background value) and data availability parameters. U.S. EPA indicated that these changes will improve the quality of data used and help in better characterizing air quality in communities that are at increased risk of PM_2.5 exposure and health risk. In addition, U.S. EPA is proposing to add monitoring siting criteria to include specific requirements for monitors to be located in at-risk communities. While U.S. EPA is not proposing requirements to add new PM_2.5 monitors they indicated there may be the need to add up to 10 additional PM_2.5 ambient monitors to the current total of 1,000. The details of these proposals haven’t been announced at the time of this article’s posting, but the changes to monitoring requirements and data availability parameters may be announced with the finalization of a PM_2.5 NAAQS threshold.

Fenceline monitoring requirements will continue to roll out in 2023. The U.S. EPA has delayed signing a proposed rule for the hazardous organic NESHAP (HON) from December 16, 2022 to March 31, 2023. It is still expected that the proposed revisions to HON will include Method 325A/B fenceline monitoring requirements. The U.S. EPA issued Clean Air Act (CAA) Information Collection Requests (ICRs) in 2022 for the Chemical Manufacturing and Coke Oven industries, both of which utilized U.S. EPA Methods 325A (Sampler Deployment and VOC Sample Collection) and 325B (Sampler Preparation and Laboratory Analysis) among other sample collection methodologies. ALL4 assisted clients in sample collection and reporting for both ICRs. Should your industry be issued an ICR, consent decree, or new rule requirement with monitoring components, it is important to be in action quickly regarding the planning and development of monitoring plans. The deadlines for meeting the monitoring timelines set by U.S. EPA for both the Chemical Manufacturing and Coke Oven ICRs did not offer much flexibility in scheduling and planning. Local community monitoring may also start showing up around your facilities. During the collection of monitoring data for one ICR effort, local funding was obtained to conduct Method 325A/B sampling in the community near the Facility where ALL4 was conducting monitoring.

There are many reasons your facility might want to consider being proactive around monitoring in 2023:

addressing community or agency interest in your fenceline/fugitive emissions,
comparing modeled concentrations with actual measured concentrations,
obtaining more representative meteorological data for use in air dispersion models,
evaluating the impacts of lower ambient standards,
evaluating monitoring technologies in anticipation of upcoming regulatory requirements,

Note that ambient monitoring systems installed as a result of a rule or a consent decree may have a requirement for the collected data to be published (similar to the refinery fenceline monitoring data on U.S. EPA’s ECHO website).

ALL4 can help you with any of these items including deployment and operation of monitoring efforts. We can also help review and validate community led monitoring data as it is generally publicly accessible data. Please contact Dustin Snare or your ALL4 project manager for more information.

PFAS in 2023

Looking forward to 2023, we expect PFAS will continue to gain momentum as an emerging contaminant and will be a top priority for regulators and the regulated community alike. Not only are there still items from the U.S. EPA’s “PFAS Strategic Roadmap” that have not yet been completed, but PFAS topics were identified several times as U.S. EPA priorities in the U.S. Office of Management and Budget (OMB) “Fall 2022 Agency Statements of Regulatory Priorities” published on January 4, 2023. As we’ve seen so far, we also expect these new changes to continue to be met with pushback and litigation.

PFAS are becoming a bullet point under nearly all environmental discussions, so there are many 2023 PFAS topics to choose from. However, for the purposes of this lookahead, let’s distill the conversation down into three main elements that are expected to expand in the coming year:

1. Regulation and Reporting

To no surprise, 2023 will bring with it more PFAS regulations and reporting obligations, established at both the state and federal level. Several examples include:

Proposed TRI “de minimis” exemption removal:

U.S. EPA published the proposed rulemaking on December 5, 2022, which would add the TRI-regulated PFAS to the list of “chemicals of special concern,” thereby making them ineligible for the “de minimis” exemption for threshold and release calculations. This changes supplier notification requirements, among other things. Currently, the de minimis level is 0.1% for perfluorooctanoic acid (PFOA) and 1% for all other listed PFAS. The comment period ends on February 3, 2023, and comments are expected to be considerable.

National Primary Drinking Water Standard for PFOA and PFOS:

U.S. EPA published the “Regulatory Determinations for Contaminants on the Fourth Contaminant Candidate List” in March 2021, which included a final determination to regulate PFOA and perfluorooctane sulfonic acid (PFOS) in drinking water. A federally enforceable drinking water standard has been long awaited by many state regulators, who up until this point have either established their own state-enforceable standards amid public calls for regulation or deferred to U.S. EPA. The proposed rulemaking will include both a non-enforceable Maximum Contaminant Level Goal (MCLG) and a federally enforceable standard, or Maximum Contaminant Level (MCL)/treatment technique. U.S. EPA anticipates proposing the rule in early 2023 and finalizing the rule in 2024. Although the preliminary rulemaking is currently focused on PFOA and PFOS, U.S. EPA will be evaluating additional PFAS for regulatory consideration as well.

CERCLA Hazardous Substance Designation:

U.S. EPA published a proposed rulemaking for the “Designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFOS) as CERCLA Hazardous Substances” on September 6, 2022. If finalized, this rulemaking would affect CERCLA reporting, disclosure, transportation, investigation, and remediation requirements. The comment period on the draft rule was closed on November 7, 2022, and U.S. EPA anticipates finalizing the rule in the Summer of 2023.

RCRA Hazardous Constituent Designation

U.S. EPA is still in the process of evaluating the toxicity and health effects of PFOA, PFOS, PFBS, and “Gen X” chemicals [i.e., hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt] to determine if they should be listed as “hazardous constituents” under RCRA. U.S. EPA has outlined a plan to initiate rulemaking to designate the four PFAS as RCRA Hazardous Constituents under Appendix VIII, which is the building block for eventual designation of certain materials containing these compounds as “hazardous waste.” No specific timeframe on the potential decision has been provided at this time, but this is another important item to watch out for as it would have significant implications.

TSCA Recordkeeping and Reporting Requirements

U.S. EPA issued a proposed Toxic Substances Control Act (TSCA) rulemaking on June 28, 2021 to require certain persons that manufacture (including import) or have manufactured listed PFAS in any year since January 1, 2011, to electronically report information regarding PFAS uses, production volumes, disposal, exposures, and hazards. U.S. EPA is incorporating public comments and additional information received during the comment period and is anticipating issuing the final rulemaking in early 2023.

Also anticipated in early 2023, U.S. EPA is planning to issue a proposed rulemaking for a Significant New Use Rule (SNUR) under TSCA for PFAS that are designated as “inactive” on the TSCA Inventory. The SNUR would require a 90 day notification to U.S. EPA prior to the manufacture or processing of any “inactive” PFAS.

2. Sampling and Testing

Another area of expansion we are expecting to see in 2023 is PFAS sampling and testing. Not only do we expect more sampling and analytical methodologies to become available, allowing for greater quantification, research, and development of PFAS data, but we also expect to see more monitoring and testing requirements. For example:

Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs

U.S. EPA issued a memo to the Regional Water Division Directors on December 5, 2022, recommending that states use the most current sampling and analysis methods in their NPDES programs to identify known or suspected sources of PFAS and to take actions using their pretreatment and permitting authorities, such as imposing technology-based limits on sources of PFAS discharges. The guidance in this memo, along with the guidance provided in the April 2022 memo relating to monitoring requirements, lays the groundwork for agencies to establish monitoring, sampling, and limitation requirements in NPDES permits. Newly issued NPDES permits or permit renewals may start to include such provisions in 2023 depending on the source category.

Fifth Unregulated Contaminant Monitoring Rule

U.S. EPA published the fifth Unregulated Contaminant Monitoring Rule (UCMR 5) on December 27, 2021. UCMR 5 requires drinking water samples be collected for 30 contaminants (29 PFAS and lithium) at public water systems. Sampling will begin in 2023.

Orders Under U.S. EPA National PFAS Testing Strategy

In conjunction with the “PFAS Strategic Roadmap,” U.S. EPA also published its “National PFAS Testing Strategy” in October 2021. Under the strategy, U.S. EPA has selected PFAS to be tested based on an approach that breaks the large number of PFAS into smaller categories. The first set of testing orders were issued in June 2022. The next set of testing orders for trifluoro(trifluoromethyl)oxirane (HFPO), used in making plastics, were issued to certain companies on January 4, 2023. Testing orders will continue to be rolled out in phases, with more phases anticipated in 2023.

PFAS Air Emissions Testing

Although generally speaking PFAS air emissions are still the least talked about topic with the least amount of available data, requirements and sampling techniques are growing and will continue on that trajectory in 2023.

3. Transparency

PFAS are a challenging topic, with regulators and the regulated community alike working to balance data availability and public concerns. A key piece of the regulatory process is public involvement and transparency with affected communities. Many state agencies have dedicated PFAS websites, posting PFAS news and facts, and new to 2023 is U.S. EPA’s interactive “PFAS Analytic Tool”. This tool will serve as a publicly available landing page for PFAS-related data across the country. The tool allows users to search for PFAS manufacturers, releases, completed testing, and PFAS occurrences in a given community using a robust mapping, charting, and filtering functionality. The tool is compiled of data from several subsets, including but not limited to, drinking water testing from the UCMR, site specific sampling required by state agencies, and data reported under rules such as TSCA and TRI. This tool will help communities gain a better understanding of local PFAS sources.

It’d be safe to assume that permitting, monitoring, reporting, and other PFAS obligations and investigations will continue to grow for facilities. Even if you aren’t in an industry involved in the manufacturing of PFAS products, expect there to still be a crossover into your operations – for example, with the need to understand whether any of your suppliers use PFAS, whether any states that you supply to have consumer product PFAS declaration requirements, or if any neighbors are contributing to local PFAS contamination. The most prudent thing you can do to prepare for potential change is to review your materials and products on-site and determine if any could be a potential source of PFAS. This is a proactive first step to understand whether or not you may be impacted for future regulations. If you have any questions or would like further information, please reach out to me at kturney@all4inc.com.

2023 Look Ahead: Battery Technology and Regulatory Changes

As the market demand increases for electric vehicles and alternative energy storage, i.e., batteries, the technology and regulations around the technology are developing. As we lookahead in 2023, we see the following items getting traction.

Advances around battery technology with impacts to storage, transportation, recycling, and disposal are on the rise. New rules and regulations will affect the industry from production to disposal and reuse. More specifically, as battery components change and larger batteries are being produced, look for updated rules and regulations from agencies such as the U.S. Department of Transportation (DOT) and State Fire Marshall Offices. With the reports of battery fires on the rise, both safe transport and storage have become an issue for transporters of hazardous materials and industry sectors that store new and used batteries in larger quantities.

Just when we thought air emissions and use of batteries didn’t go together, we found out there are facilities performing thermal runaway evaluations (burn tests) on batteries to obtain certification for their safe use in certain applications. ALL4 has evaluated air emissions data and whether there are air permitting requirements for these operations.

Also, continue to look for developments with existing and fully viable technologies such as lead-acid batteries. Storage capacities and design continue to drive the components of batteries in the marketplace. Lead-acid batteries are still more viable for certain applications where more storage is required and weight is not the issue. We are up to date on the potentially changing environmental requirements for these facilities.

There will be more funding opportunities in 2023 for large grants mandated by the Inflation Reduction Act and Infrastructure Investment and Jobs Act I through agencies such as U.S. Department of Energy (DOE) as incentives for innovation and supply chain development will be available. We will see additional battery facilities as well as recovery and recycling facilities being announced.

Last, there will be funding released for tax credits and other financial incentives as defined in 2022 legislation at the state and federal level which will drive demand for batteries overall and especially for those produced in the U.S. or sourced from preferred trading partners.

ALL4 has industry experience in battery manufacturing and recycling, including recycling of newer battery technology such as Li-ion. If you have questions or need assistance with permitting, storage requirements, hazardous material planning, or evaluation of your current practices, please contact Bruce Armbruster at BArmbruster@all4inc.com. Our ESG team can also assist your company with determining and documenting provenance of recycled materials; contact Daryl Whitt at dwhitt@all4inc.com.

New Source Review (NSR) – What to Expect in 2023

If you have not already noticed, NSR is a fairly common air quality topic in ALL4’s annual Look Ahead series of articles and in our 4 The Record blog posts, and with good reason. The NSR air permit program, consisting of the prevention of significant deterioration (PSD) regulations that apply in areas attaining the national ambient air quality standards (NAAQS) and the nonattainment new source review (NNSR) regulations, which apply in areas that are not in attainment with the NAAQS, requires careful consideration and evaluation very early in the planning stages of a project. The rules have a common set of challenges including project definitions, applicability determinations, emissions inventories, agency and non-governmental organization (NGO) scrutiny, public review and comment, lengthy permit application preparation and regulatory agency review schedules, and now environmental justice (EJ) obligations. Add to that the technical challenges associated with PSD permitting [e.g., best available control technology (BACT) and air quality dispersion modeling], NNSR permitting [e.g., lowest achievable emission rate (LAER), emissions offsets, and alternative siting analysis], and state program regulatory nuances, the end result is two very challenging permitting programs, mostly implemented by individual state or local permitting agencies, that in most cases, facilities choose to avoid whenever possible. To further complicate the NSR program, United States Environmental Protection Agency (U.S. EPA or EPA) guidance regarding how the PSD and NNSR programs are implemented can change like the political wind, with policies that are implemented under one administration often reconsidered, revised, or rescinded by the following administration.

From our vantage point, 2023 looks to be more of the same, except that U.S. EPA is additionally taking a closer look at and considering changes to state and local minor NSR permitting programs. Our 2023 NSR outlook is provided below and it looks like we will be in for an interesting ride. If you are considering a project that will require an air permit application, we can help you navigate the ever-changing landscape of NSR permitting.

Recission of December 7, 2017, Pruitt Memo

On December 9, 2022, EPA Administrator Regen formally rescinded the memorandum titled “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected- Actual Applicability Test in Determining Major Modification Applicability” that was issued by former EPA Administrator Pruitt on December 7, 2017. The 2017 memorandum clarified (at that time) what the current U.S. EPA policy was with respect to a facility’s use of the actual-to-projected-actual applicability test when evaluating facility modifications for NSR applicability and states “the EPA intends to focus on the fact that it is the obligation of source owners or operators to perform pre-project NSR applicability analyses and document and maintain records of such analyses as required by the regulations.” The key piece of the 2017 memorandum was the U.S. EPA’s acceptance of a strategy that included a facility’s use of the actual-to-projected actual applicability test as a means to avoid NSR applicability. With the rescission of the 2017 memorandum, we can expect that U.S. EPA (and states) will now officially be able to “second guess” your projected actual emissions rates and that the use of the actual-to-projected-actual applicability test as an overt means to avoid major NSR (setting your projection to just under the significant emissions rate and managing post-project emissions) is no longer a viable option. Expect to include more detail and justification for your emissions projections in your permit applications.

Discretionary Project Emissions Accounting (PEA) Rule Revisions

On March 13, 2018, the U.S. EPA issued a policy guidance memorandum titled “Project Emissions Accounting Under the New Source Review (NSR) Preconstruction Permitting Program.” The 2018 PEA policy guidance allowed facilities to account for emissions decreases that are associated with a given project during “step one” of an NSR applicability analysis thereby changing a 2006 U.S. EPA policy where only emissions increases were considered during step one of an NSR applicability analysis and enforceable emissions decreases were only considered during the “step two” netting evaluation. The PEA policy did not require step one emissions reductions to be enforceable. The PEA policy was formalized as a revision to the NSR regulations on November 24, 2020, and became effective on December 24, 2020. A consortium of environmental non-governmental organizations (ENGO) filed a Petition for Reconsideration on January 21, 2021, regarding the final PEA rule. On October 12, 2021, EPA Administrator Regan denied the petition for reconsideration, denied a request that the rule be stayed, and denied a request to withdraw the March 13, 2018 PEA memorandum. However, EPA Administrator Regan concluded that “…the petition raises concerns that warrant further consideration by the EPA in a separate rulemaking effort” and that “…the EPA …plans to initiate, at its own discretion, a rulemaking process to consider revisions to the NSR regulations to address the concerns raised by the petition for reconsideration.” As we enter 2023, ALL4 anticipates that EPA will initiate rulemaking to revise the PEA rule to address the primary concerns of the petitioners which include:

The final rule fails to ensure that offsetting emission decreases are used to show that a “project” will not cause a significant emission increase in Step 1 of the NSR applicability analysis result from the change being evaluated (i.e., are the emissions decreases really part of the project?).
The final rule unlawfully allows a source to avoid NSR by offsetting emission increases resulting from a change with non-contemporaneous emission decreases (i.e., emissions decreases that are accounted for may not be “contemporaneous” with the project).
The EPA has not ensured that project emission decreases will occur and will be maintained (i.e., the emissions decreases relied upon are not permanent and enforceable).

The U.S. EPA anticipates a rule proposal in the Fall of 2023. It will be interesting to see whether any policy changes at state agencies result since states were not required to adopt the PEA approach.

Fugitive Emissions Rule Revisions

On October 14, 2022, the U.S. EPA proposed to repeal the 2008 Fugitive Emissions Rule that has been stayed, in some form, since September 2009 and to remove an exemption for modifications that would be considered major solely due to the inclusion of fugitive emissions. In essence, the proposed revisions retain the rule provision that excludes fugitive emissions when determining whether a facility is a new major stationary source if the facility is not one of the 28 listed categories required to include fugitive emissions in 40 CFR 52.21(b)(1)(iii). However, once a non-listed facility becomes a major source under the applicable NSR regulations, the proposed revisions require that increases in all types of emissions (including fugitive emissions) must be considered when determining whether a proposed change would be a major modification. The EPA expects that the proposed revocation of the 2008 Fugitive Emissions Rule will have a “limited practical impact” on the regulated community. ALL4 anticipates finalization of the proposed Fugitive Emissions Rule revisions in 2023. If your facility is a non-listed major stationary source, you will want to consider how this rule change would impact permitting projects you are planning.

Revisions to Minor NSR Program Requirements for State Implementation Plans

In response to a July 8, 2021 report issued by the U.S EPA Office of Inspector General titled “EPA Should Conduct More Oversight of Synthetic-Minor Source Permitting to Assure Permits Adhere to EPA Guidance,” U.S. EPA has begun to consider options to address the findings provided in the report. While the focus of the report centered on permitting programs in Colorado and Oklahoma, U.S. EPA plans to address the findings nationally as a focus on State’s Minor NSR programs, many of which are based on rules that are over 40 years old. As identified below, much of EPA’s concerns and common themes center around public notice requirements for NSR permits, transparency in the air permitting process, and accountability for affected facilities. U.S. EPA engaged stakeholders during the Fall of 2022 to solicit input and EPA’s key focus areas are summarized below:

Public Notice for Synthetic Minor Sources – U.S. EPA is concerned that state synthetic minor permits may not meet current EPA state implementation plan (SIP) rules regarding public participation. EPA’s position is that setting permit limits and conditions to ensure that a facility is not subject to more prescriptive requirements (i.e., major NSR) requires transparency and accountability.
Public Notice for Modifications at Major NSR Sources – U.S. EPA is concerned that some state/local air permitting agencies provide permit exemptions for modifications when emissions increases are less than their minor NSR permitting thresholds. Current EPA SIP rules require state/local permitting agencies to provide a 30-day public comment period for any NSR permit. EPA’s position is that transparency and accountability is required by applicant analyses that establish a project’s status as a non-major NSR modification.
Public Notice for True Minor Sources – U.S. EPA is concerned that certain true minor sources (e.g., “higher emitting” minor sources, minor sources in areas with high background concentrations of criteria pollutants, and cumulative impacts of multiple minor sources within a geographic area) are not subject to public notice and comment requirements. Current EPA SIP rules require state/local permitting agencies to provide a 30-day public comment period for any NSR permit. EPA’s position is that state/local air permitting agencies need to ensure transparency and accountability for true minor sources.
General Permits/Permits by Rule – U.S. EPA is concerned that current SIP regulations do not explicitly support the use of General Permits or Permits by Rule. While General Permits and Permits by Rule are public noticed at the time each are established by a state or local agency, EPA is concerned that public awareness regarding the use of General Permits and Permits by Rule is lacking. EPA’s position is that General Permits or Permits by Rule need to be based on a minor NSR program to ensure transparency and accountability and is considering several options to improve such programs.
Exempt or Deminimis Sources – U.S. EPA is concerned that classes or categories of sources that are considered exempt or deminimis by state air permitting agencies were established during the development of the state or local air permit program many years ago (e.g., mid-1970s) through a program demonstration. EPA’s position is that state and local minor NSR program exemptions or deminimis sources must “…continue to be protective of current day NAAQS, including short term NAAQS” and is considering whether exempt or deminimis projects should be allowed in nonattainment areas.
Additional Areas of Permit Review – U.S. EPA is considering additional means for public outreach related to minor NSR permitting programs including public hearings or meetings, databases of minor NSR permitting actions, and outreach to ensure that the general public understands administrative and legal remedies for challenging minor NSR decisions. U.S. EPA is also interested in additional means that state and local agencies can use to ensure protection of the NAAQS in their minor NSR permit programs including criteria used by air permit agencies to require NAAAQS analysis for minor NSR permits and their authority to prevent construction of minor NSR projects that endanger the NAAQS.

There is quite a bit to unpack with regard to EPA’s concerns with state and local minor NSR programs and how they plan to address their concerns. The underlying concern of industry is that state and local NSR programs are generally very effective and that any current benefits associated with state and local NSR programs (e.g., expediency, familiar processes, etc.) will be lost with additional U.S. EPA oversight. EPA anticipates a notice of proposed rulemaking in October of 2023 and a final rule by August 2024.

ALL4 is tracking all of this activity around NSR permitting and can help you navigate changing policies and regulations and the differences in NSR permitting across states. If you are contemplating a project that could be affected by any of these changes, we can help you develop a permitting strategy and timeline and work with you to successfully get your project permitted. We can also help you develop technical comments when federal or state regulatory changes are proposed. Reach out to Roy Rakiewicz or your ALL4 project manager for more information or for assistance with your next project.

Recent Changes Proposed to the Refrigerant Rules

The American Innovation and Manufacturing (AIM) act was enacted by Congress on December 27, 2020 to direct the U.S. Environmental Protection Agency (U.S. EPA) to curtail and restrict the use of hydrofluorocarbons (HFCs) by 85% in the United States by 2036. HFCs were developed as replacements for ozone depleting substances used in the refrigeration, air conditioning, aerosol, fire suppression, and foam blowing sectors. However, they are greenhouse gases with high global warming potentials. The three main goals of the AIM act are (1) to phase down the production and consumption of listed HFCs, (2) manage the listed HFCs and their substitutes, and (3) facilitate the transition to next-generation technologies. The U.S. EPA is proposing new rules to achieve these requirements of the AIM act.

What is the proposed rule?

The U.S. EPA has two approaches to limit HFC’s in certain sectors and subsectors:

The U.S. EPA is proposing to restrict the use of HFC’s in manufacturing, importing, exporting, packaging, selling, or distributing products containing restricted HFC.
The U.S. EPA is proposing to set Global Warming Potential (GWP) limits for certain higher-GWP HFC’s.

Recordkeeping and reporting requirements have also been proposed for any entity that domestically manufactures or imports products that use or are intended to use any of the restricted HFC’s.

When would the rule go into effect?

The proposed rule would prohibit the manufacturing and importing products containing restricted HFC by January 1, 2025, and later, prohibit the sale, distribution, and export of products containing restricted HFC by January 1, 2026.

The GWP limits will go into effect based on its sector and subsector; more information on this can be found in the U.S. EPA Fact Sheet linked below.

Who would this apply to?

The proposed rule would apply to sectors and subsectors in the aerosols, foam blowing, and refrigeration industries, air conditioning industries, and heat pump industries. These restrictions apply primarily to newly manufactured products and equipment, and any existing imported equipment and used products that do not meet the proposed GWP limits or other restrictions. These restrictions do not apply to any product that receives an application-specific HFC allowance under subsection (e)(4)(B) of the AIM Act. For more information regarding sector limitations and other exemptions, please see the U.S. EPA Fact Sheet linked below.

How might these changes affect my facility?

If your facility falls under the sectors or subsector applicable to the GWP limits, or your facility participates in any of the activities that will be prohibited in 2025 and 2026, your facility may need to transition to lower-GWP substitutes in order to stay in compliance.

How can I comment?

Comments can be submitted to the U.S. EPA via the Federal eRulemaking Portal, via mail as written comments mailed to the U.S. Environmental Protection Agency, EPA Docket Center, Air and Radiation Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20004, or via hand deliver as written comments to the EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. All comments must include the Docket Identification number EPA-HQ-OAR-2021-0643. Further instructions can be found on the published proposed rule on the Federal Register. The comment period closes on January 30, 2023.

Where can I find additional information?

The EPA Fact Sheet and Press Release can be found on the U.S. EPA website, the Proposed Rule can be found on the Federal Register. ALL4 is following this and will continue to provide updates on regulatory development for the HFC’s and this proposed rule. To understand the impact to your facility, ALL4 can support efforts to compile an inventory of HFCs and/or HFC-containing equipment on-site, review currently used materials compared to the proposed restrictions and limits, and provide a summary of impacts. This will allow your facility to assess if HFC substitutes or equipment change-out will be required. If you have any questions on the HFC’s or other refrigerant-related topics, and for any additional information, please contact me at jfantone@all4inc.com or contact your ALL4 project manager for more information.

ALL4’s Texas 2023 Look Ahead

The new year is upon us, and ALL4 is looking forward to the changes and challenges it will bring. Whether the concerns are related to air, water, waste, or health and safety, we are here to assist and find solutions for your challenges. Our Practices include Air Quality, Environmental, Health, and Safety (EHS), Digital Solutions (DS), and Environmental, Social, and Governance (ESG). ALL4 has published our Annual Look Ahead, and we encourage you to read it. The EHS regulatory environment in Texas is also quite active and has many unique aspects. Some upcoming changes that might affect Texas facilities in 2023 include the following.

New Form PI-1 General Application for New Source Review Permits
Public Participation Activities for Applications
Texas to Issue Renewed TPDES General Permit for Construction Activities
PM_2.5 Annual NAAQS Proposed to be Lowered
Ozone Non-Attainment Area Reclassification
88^th Texas Legislative Session
Reconsideration of the 2008 Fugitive Emissions Rule
Ethylene Oxide Emissions
What’s New With ALL4?

New Form PI-1 General Application for New Source Review Permits

The Texas Commission on Environmental Quality (TCEQ) has announced that there will be a new version, Version 6.0, of the Form PI-1 General Application. This form will be required for all New Source Review (NSR) applications that are submitted after January 15, 2023. NSR applications submitted on or before January 15, 2023 can use either Version 5.0 or Version 6.0. The updates to Version 6.0 are not as significant as those made to previous versions, but there are still a few noteworthy updates, including the following.

Updated attainment status for Dallas/Fort Worth (DFW), Houston, Galveston, and Brazoria (HGB), and Bexar county.
Removal of the requirement to provide longitude and latitude.
Updated wording on the Best Available Control Technology (BACT) and Monitoring tabs.
Updates to ‘behind-the-scenes’ calculations.
Updates to the Federal Applicability information for Greenhouse Gas (GHG) emissions.

For more information or for help assessing how these changes will affect your facility, please contact Rachel Henn at rhenn@all4inc.com.

Public Participation and the TCEQ Public Involvement Plan (PIP)

In response to the Title VI complaint filed against the agency in 2019, TCEQ has been making updates to their public notice requirements, including updates to the public participation plan and language access plan. Early in 2022, we saw an update requiring alternative language notice requirements and alternative language public participation in the public notice process from postings to public forms, and the new requirement of a Plain Language Summary form for all applications subject to Chapter 39.

TCEQ now requires the new Public Involvement Plan (PIP) (TCEQ Form 20960) for all multimedia applications (not just air) and applicable standard permit registrations (that require public notice) that meet all three of the following criteria:

new applications and/or activities requiring notice;
have significant public interest; and
are within the following geographical regions: Urban metroplexes, West Texas, Panhandle, and the Texas/Mexico border.

The form must be part of the initial submission, and the purpose of this plan is to allow facilities the opportunity to discuss their public outreach and involvement plans for projects being submitted. The first section of the form is the preliminary screening, and if you screen out, then you do not need to submit the form. All three of the criteria must be selected in Section 2 to proceed to Section 3.

There are no changes to the public notice process or any new delays anticipated with the introduction of this plan. The purpose of the PIP is to provide facilities with the opportunity to start preparing for any potential public concern or concern. With public participation and scrutiny increasing as new permit applications are evaluated, the PIP provides facilities with a head start on planning their responses. For any additional questions on the PIP, including information it requires, contact Rawan El-Afifi at relafifi@all4inc.com.

Texas to Issue Renewed TPDES General Permit for Construction Activities

The TCEQ’s Pollutant Discharge Elimination System (TPDES) is currently in the final stages of renewing General Permit TXR150000 for stormwater discharges from construction activities (permit), which expires March 5, 2023. A draft was issued on September 16, 2022. The permit is required for stormwater discharges to surface waters of the United States from construction sites where an operator disturbs an acre or more of ground. It also requires the implementation of a Construction Stormwater Pollution Prevention Plan (SWPPP). Primary operators that disturb five or more acres of ground are required to submit a Notice of Intent (NOI).

Once the new permit is issued, those required to submit an NOI will have to do so electronically using TCEQ’s online State of Texas Environmental Electronic Reporting System (STEERS), unless a waiver is obtained. For those with existing permits for active construction sites, the submittal must take place within 90 days of the new permit issuance. Electronic submittals are authorized upon confirmation of receipt. Paper submittals must be made at least seven days before operations commence, and provisional coverage will start 48 hours after the submittal is postmarked. A facility must have a SWPPP in place before applying.

Significant changes proposed for the new permit include:

revised definitions;
a decrease in provisional coverage from seven days to 48 hours for paper applications;
a requirement that Delegation of Signatories forms for large construction site operators be submitted electronically;
a requirement that Delegation of Signatories forms for small construction site operators be submitted by paper;
allowing for the suspension of inspections in adverse conditions;
a requirement that dewatering must be managed by controls to prevent sedimentation and erosion and that the controls must be inspected during dewatering;
requirements for good housekeeping measures related to wastes;
requirements to document when it is not feasible to utilize outlet structures that withdraw water from the surface of basins and impoundments; and
technical and administrative clarifications.

Failure to obtain a permit for regulated construction activities is a violation of the Clean Water Act and could lead to enforcement actions, including fines of up to $25,000 per day for each violation and imprisonment for up to one year. Penalties increase for willful and repeat violations.

ALL4 is available to assist with your stormwater permitting or compliance needs. If you have questions about how the draft permit could affect your facility, please reach out to Adam Czaplinski at aczaplinski@all4inc.com.

PM_2.5 Annual NAAQS Proposed to be Lowered

After completing the White House Office of Management and Budget (OMB) review on December 27, 2022, the much anticipated proposal to lower the annual particulate matter of less than 2.5 microns (PM_2.5) National Ambient Air Quality Standard (NAAQS) was officially signed on January 6, 2023. U.S. EPA is proposing to lower the standard from the current 12 micrograms per meter cubed (µg/m³) to a level between 9 µg/m³ and 10 µg/m³. U.S. EPA is taking comments on the proposed rule for 60 days upon publication in the Federal Register, which is anticipated in the coming weeks.

As you plan out your 2023, here are some things to consider to put yourself in the best position once the new standard is finalized later this year.

Check to see what the current PM_2.5 design value is in your area to understand if there is the potential for your area to be classified as a PM_2.5 nonattainment area and/or how much “headroom” is available for PM_2.5 NAAQS air quality modeling demonstrations.
Review your current PM_2.5 emissions inventory and consider refining overly conservative emissions factors or utilizing particulate matter (PM) or particulate matter less than 10 microns (PM₁₀) as a surrogate for PM_2.5.
Considering emissions measurements to refine your emissions inventory.
Conduct PM₅ air dispersion modeling to assess your status with the PM_2.5NAAQS and to identify areas for improvement through stack modifications and/or equipment and process changes.
Consider an ambient PM_2.5 monitoring program to establish site specific background concentrations and or to be utilized in lieu of a required air dispersion modeling demonstration.
If it’s anticipated that you’ll end up in or near a PM_2.5 nonattainment area, consider projects that can reduce PM_2.5 emissions. PM_2.5 emissions reductions could be used for future projects at your facility or have the potential to be worth a lot of money as emissions reduction credits (ERCs) to other facilities in your area.

ALL4 will continue to monitor the status of NAAQS-related changes and how the changes will impact the regulated community. In the meantime, feel free to revisit our December 2022 webinar recording “Updates to the PM2.5 and Lead NAAQS” and read our latest article about PM_2.5. For more information or for help assessing how these changes will affect your facility, please contact Dan Dix at ddix@all4inc.com.

Ozone Non-Attainment Area Reclassification

On November 7, 2022, the EPA issued a final rule that changed the nonattainment status for six areas, including two areas in Texas. The Dallas-Fort Worth (DFW) and Houston-Galveston-Brazoria (HGB) areas failed to meet the 2008 ozone NAAQS by the attainment date and were reclassified as severe nonattainment. Both DFW and HGB areas have until July 20, 2027, to demonstrate compliance.

The nonattainment classification has a direct impact on state air permitting programs and compliance for each facility. Under the CAA, the major source threshold for a facility located in a serious nonattainment area is 50 tons per year for Nitrogen Oxides (NO_X) and Volatile Organic Compounds (VOC). However, the major source threshold in a severe nonattainment area is 25 tons per year for NO_X and VOC. Therefore, any facility located within the severe nonattainment area with the potential to emit greater than 25 tons per year of NO_X or VOC will be required to obtain a Title V operating permit. Any new facility with potential emissions greater than or equal to 25 tons per year of NO_X or VOC or any modification with an increase greater than or equal to 25 tons per year of NO_X or VOC will have to go through nonattainment NSR. For such facilities that would be new to a Title V operating permit, compliance activities will become more rigorous with respect to recordkeeping and reporting requirements.

Another area that will need to be carefully examined would be emissions netting for new projects at an existing Title V facility. If your facility will be amending an existing NSR permit or starting a new NSR project, the trigger for netting will be reduced and the ratio for emissions offsets will become less favorable. For severe nonattainment classification the offset ratio is 1.3 to 1. With more stringent offset ratios, permitting activities will become more difficult on the regulated community. For more information or for help assessing how these changes will affect your facility, please contact Meghan Skemp at mskemp@all4inc.com.

88th Legislative Session

It’s hard to believe that it’s time for the next Texas Legislative session already. The 87th Texas Legislative Session kicked off on January 10, 2023 in Austin and runs through May 29, 2023. Past sessions have laid the groundwork for TCEQ’s at-risk construction for minor NSR amendments, concrete batch plant permit, expedited air permitting program enhancements, and Texas Emissions Reduction Plan (TERP), among others.

What will this session bring from an environmental perspective? It’s too early to tell, however, multiple bills with environmental implications have already been introduced, and it’s anticipated many more will be. Currently, bills cover topics including environmental justice, contested case hearings, ESG, and, not surprisingly, a few related to concrete/aggregate operations. Additionally, we anticipate a TCEQ Sunset Bill. Stay tuned as the session progresses.

Want to refresh your memory on the legislative process in Texas as it pertains to companies operating with environmental permits and pursuant to environmental regulations? Refer to ALL4’s article Texas Legislative Session: The Process and Implications for Texas Facilities with Permits. For more information on this topic, please contact Wes Hill at whill@all4inc.com.

Reconsideration of the 2008 Fugitive Emissions Rule – What Does it Mean for Your Next Project?

In October 2022, the U.S. EPA proposed to fully repeal the 2008 Fugitive Emissions Rule that has been stayed, in some form, since September 2009. The U.S. EPA also proposed to remove an exemption for modifications that would be considered major solely due to the inclusion of fugitive emissions. As a result of the proposed changes, all existing major stationary sources would be required to include fugitive emissions in determining whether a physical or operational change constitutes a ‘‘major modification,’’ requiring a permit under the Prevention of Significant Deterioration (PSD) or Nonattainment New Source Review (NNSR) programs. Importantly, fugitive emissions may continue to be excluded when determining whether a facility is a new major stationary source if the facility is not one of the 28 listed categories required to include fugitive emissions in 40 CFR 52.21(b)(1)(iii). As such, this reconsideration affects only non-listed, existing major stationary sources. U.S. EPA believes a limited number of sources have invoked the fugitive exemption but does not address whether sources that did invoke the exemption would be required to retroactively review major modification determinations.

For more detail on this proposal and the challenges around fugitive emissions, see our article here or contact Chris Ward at cward@all4inc.com. If your facility is a non-listed major stationary source, you will want to consider how this rule change would impact permitting projects you are planning.

Ethylene Oxide Look Ahead

In 2020, the U.S. EPA revised the National Emission Standards for Hazardous Air Pollutants (NESHAP): Miscellaneous Organic Chemical Manufacturing (MON) based on their Risk and Technology Review, and the update included revisions as a result of the risk review to specifically address ethylene oxide (EtO) emissions from storage tanks, process vents, and equipment leaks as well as additional monitoring and operational requirements for flares that control ethylene oxide emissions. As part of the risk assessment in the 2020 MON final rule updates, the U.S. EPA calculated the cancer risks associated with EtO based on the 2016 Integrated Risk Information System (IRIS) value described below and found that the Maximum Available Control Technology (MACT) requirements did not lead to an acceptable level of risk for this pollutant. This analysis resulted in control requirements for EtO emissions from process vents, storage tanks, and other equipment in EtO service. The final rule received multiple petitions for reconsideration, one issue being the EtO risk value.

The risks associated with ethylene oxide have been the subject of agency evaluation/scrutiny over the past few years. U.S. EPA’s 2016 review of EtO resulted in its reclassification from a possible carcinogen to a probable carcinogen, with an updated IRIS risk value resulting in 30 times higher cancer potency than previously thought. EtO is a colorless, flammable gas made from petroleum or natural gas, and is a chemical intermediate in the manufacturing of multiple products (ethylene glycol, plastics, adhesives, pharmaceuticals, etc.). It is also a widely used sterilizing agent. Five of the top emitting industries associated with EtO emissions are located in Texas. As a result, TCEQ conducted their own risk evaluation of the chemical to confirm the U.S. EPA’s conclusions. Both the U.S. EPA and TCEQ developed exposure estimates based on the same study of nearly 17,500 workers in 13 sterilizing facilities, with little exposure to chemicals other than EtO. However, TCEQ’s evaluation of the dose-response curve of the study conflicted with EPA’s findings. TCEQ argued that EPA’s findings were highly conservative, and based on their review, they proposed increasing EtO’s long-term risk value to 2.4 parts per billion (ppb). In contrast, the U.S. EPA concluded that any long-term concentration of EtO above 0.01 ppb was deemed harmful and would result in probable cancer risk. In December 2022, U.S. EPA rejected the TCEQ’s assessment and deemed their risk review, and therefore the 2020 MON EtO updates, acceptable.

EtO-emitting facilities subject to MON will continue to be required to adhere to the standards set in the 2020 MON rule. This will result in evaluations of control technologies associated with storage tanks, process vents, uncontrolled fugitives, and flares at these facilities. In 2023, we will see whether the TCEQ and other industry-level associations will continue to argue the risk associated with EtO, and what additional findings may arise in order to provide additional comment/analysis on this topic. For more information on this topic, please contact Rawan El-Afifi at relafifi@all4inc.com.

What’s New With ALL4?

ALL4 continued to grow in 2022, celebrating our 20^th anniversary and crossing the 200-employee threshold amongst our four practices: Air Quality, Environmental Health and Safety (EHS), Digital Solutions, and Environmental Social and Governance (ESG) and Sustainability. Each of our offices (Pennsylvania, Georgia, Kentucky, Texas, California, North Carolina, and Washington D.C.) grew, and we added teammates across the U.S. and Canada in remote locations, increasing our geographic footprint.

Our Gulf Coast presence has continued to increase in staff and clients. We’re proud of the challenges we helped our clients tackle in 2022 and look forward to the difference we can make in 2023 as there is no doubt that the regulatory environment is becoming more complex by the day. If you have questions related to any of the topics above and/or know of talented consulting professionals looking for employment at a growth-oriented company with outstanding leadership and work culture, please reach out ALL4’s Southeastern Regional Director, Chuck Doyno, at cdoyno@all4inc.com.

The New PAG-03 Has Arrived!

The Pennsylvania Department of Environmental Protection (PADEP) has published the updated PAG-03 Authorization to Discharge Under the National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges of Stormwater Associated with Industrial Activity, as announced in the Pennsylvania Bulletin on December 24, 2022. To continue coverage under PAG-03, a facility much submit a Notice of Intent (NOI) and associated checklist by March 23, 2023. And for those waiting patiently to obtain new PAG-03 coverage, your wait is finally over.

In March 2022, ALL4 outlined the changes identified between the previously published PAG-03, which included the following:

New and Revised Benchmark Values – a reminder to check your relevant Appendix for added or updated benchmark values for specific pollutants! Total Nitrogen and Total Phosphorus are now required to be analyzed under the new PAG-03. Appendices B, J, O, P, Q, R, T, and U now also have additional benchmark pollutants.
A facility must submit a Corrective Action Plan (CAP) after benchmark exceedances of the same pollutant in two consecutive monitoring periods. After benchmark exceedances of the same pollutant in four consecutive monitoring periods, a facility must submit a BMP Checklist (Form 3800-PM-BCW0083L). Additional exceedances may result in termination of the General Permit and the facility would need to apply for an Individual Permit.
Changes were made to Monitoring and Reporting Requirements for semi-annual inspections, BMPs, and the removal of requirements for bypasses.

UPDATES TO PAG-03 COVERAGE AND RENEWALS

In addition to the above identified changes, PADEP has updated the terms and conditions for PAG-03 coverage and renewals. In their renewal letter sent to PAG-03 permittees on December 23, 2022 (if you did not receive this letter, it may be time to update your facility permit contact!), PADEP communicated that current PAG-03 coverage in in effect until the March 23^rd NOI submission deadline.

PADEP noted in their letter that if a facility discharges directly to a stream that has been redesignated as High Quality (HQ) or Exceptional Value (EV) under Chapter 93 of the department’s Rules and Regulations, that facility may no longer eligible for a PAG-03 and would need to apply for an Individual NPDES Permit (3800-PM-BCW0403). Facilities discharging to upstream waters prior to the redesignation would be eligible to be grandfathered for PAG-03 renewal.

In a change from previous NOI submissions, PADEP is now requiring that all outfalls at the facility – not only those associated with industrial activity – must be listed on the NOI. For the outfalls associated with industrial activity, stormwater sampling for the renewal is only required at representative outfalls if the facility is discharging to impaired waters. In that case, the parameter for which the stream is impaired must be sampled for the NOI. Otherwise, stormwater data from previous years may be used in the NOI form submitted on or before March 23^rd.

As noted in our previous blog post, the $2,500 fee for PAG-03 coverage has not changed, but it will now be collected annually in $500 increments. Under the updated General Permit renewals, the first $500 fee and the Annual Report are both due on May 1, 2023. Beginning in 2024, the incremental fee and Annual Report will be due March 23^rd of each year.

PADEP has also listed circumstances under which a facility should submit an NOI to amend its current General Permit. These include changes to existing outfalls, adding outfalls, or changes to the facility that change the flow or characteristics of stormwater, including new run-on flow from offsite.

ADDITIONAL CHANGES TO THE UPDATED PAG-03

While minor, there are three additional changes to this version of the PAG-03 which may apply to facilities requiring General Permit Coverage:

While often included in PPC Plans required for stormwater permitting, the NOI now directly calls for a site map showing structures, impervious surfaces, control measures, receiving waters, stormwater conveyances, monitoring points, and non-stormwater discharge sites.
PADEP published requirements for valve-controlled stormwater retention structures related to discharges and self-monitoring sample collection (i.e., collect within the first five minutes of discharge as opposed to the first 30 minutes for free-flowing structures.)
The target quantification limits (TQLs) for fulfilling sampling requirements of self-monitoring, reporting, and recordkeeping are now published in the General Permit. The inability to achieve these TQLs will be treated as non-compliance by PADEP. Check with your laboratory to be sure they are able to meet the published TQLs.

(SOON TO BE?) FREQUENTLY ASKED QUESTIONS

While developing this blog, ALL4 also came up with a list of questions, which may apply to your facility.

1. What can/should I do if I applied for and received an Individual Industrial Stormwater Permit during the period when PADEP was not issuing general permits for new discharges?

ALL4 recommends maintaining the Individual Permit until it expires, then re-evaluating your facility’s applicability. It may be advantageous to renew your Individual Permit, though in certain circumstances it may be better to apply for a new General Permit. This is site specific and depends on the characteristics of the operation and stormwater discharge.

2. What will happen if I do not submit an NOI prior to 3/23 to maintain coverage?

Your facility’s General Permit will be expired and you will no longer be authorized to discharge stormwater from your facility. This could lead to one or more Notices of Violation, fines, and additional corrective actions.

3. What if a benchmark value is added to my Appendix?

All sectors have total nitrogen and total phosphorus added. Any pollutants listed in an Appendix as impairing waters must also be sampled prior to renewal. PADEP has clarified that no additional sampling is required and sampling data from the previous two years may be used to complete the NOI form.

ALL4 is continuing to monitor developments related to PAG-03 and we will be providing timely updates as they become available. For more information regarding this or other topics related to stormwater and wastewater, please contact Michael Burfield of ALL4 at mburfield@all4inc.com. For information on how ALL4 may assist with your facility’s PAG-03 coverage, please contact Christine Chinofsky at cchinofsky@all4inc.com.