OSHA’s Top Ten Safety Violations for Fiscal Year 2022

The National Safety Council (NSC) released an update to its annual list of the Occupational Safety and Health Administration’s (OSHA) top-ten cited standards. The list provides a starting point for employers to review their own safety programs on an annual basis. 

Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented OSHA’s preliminary Top 10 most frequently cited workplace safety standards for fiscal year 2022. The Top 10 list includes standards from both General Industry (1910) as well as Construction (1926). The list was presented during the 2022 National Safety Council (NSC) Safety Congress and Expo on September 20, 2022. The violations for 2022 shared at the session utilized preliminary data from October 1, 2021, to September 6, 2022.

According to OSHA and NSC, Fall Protection – General Requirements remains at the top of the list for the 12th year in a row, followed by Hazard Communication and Respiratory Protection.

The NSC indicated that the Top 10 most frequently cited workplace safety standards for 2022 are:

1. Fall Protection – General Requirements (1926.501): 5,260 violations
2. Hazard Communication (1910.1200): 2,424 violations
3. Respiratory Protection (1910.134): 2,185 violations
4. Ladders (1926.1053): 2,143 violations
5. Scaffolding (1926.451): 2,058 violations
6. Lockout/Tagout (1910.147): 1,977 violations
7. Powered Industrial Trucks (1910.178): 1,749 violations
8. Fall Protection – Training Requirements (1926.503): 1,556 violations
9. Personal Protective and Lifesaving Equipment – Eye and Face Protection (1926.102): 1,401 violations
10. Machine Guarding (1910.212): 1,370 violations

Hazard Communication Standard (HazCom) violations increased drastically from fifth place in 2021 to second in 2022. A total of 1,947 violations were issued in 2021 and 2,424 violations were issued by OSHA in 2022. An increase of over 400 violations. The HazCom standard, found at 29 CFR 1910.1200, requires businesses and chemical manufacturers to provide information pertaining to hazard classification, a program, labels, training, and specific information on Safety Data Sheets.

For the 12^th year in a row, Fall Protection was at the top of the list. Even though the quantity of violations has decreased from 5,424 in 2020 to 5,295 in 2021 and 5,260 in 2022, it is still ranked number one. OSHA requires employers to ensure all open holes with a potential fall hazard of six feet or greater are guarded, use of guard rails and toe-boards for elevated work surfaces and when there is a risk of falling in or on a machine or equipment, and use of safety equipment such as harnesses, nets, or railings.

In a press release, NSC president and CEO Lorraine Martin said, “OSHA’s annual Top 10 list helps define trends so safety professionals can find the appropriate solutions…Despite advancements in workplace safety, we continue to see the same types of violations each year. It’s more important than ever employers seek education and resources to keep their workers safe.”

Employers can get ahead of any violations and ensure compliance with these regulations by reviewing their safety programs and trainings. ALL4 can help with this by developing workplace safety programs, trainings, and providing OSHA compliance evaluations, including recommendations and corrective actions for any compliance gaps.  If you have questions on how these health and safety regulations affect your facility, please reach out to Victoria Sparks at vsparks@all4inc.com.

A Quick Guide for Completing your Illinois Annual Emissions Report (AER)

As environmental reporting season is now upon us, it is time to complete and submit your Annual Emissions Report (AER), which is due to the Illinois Environmental Protection Agency (Illinois EPA) by May 1^st.  Here is a quick guide to help answer some of the questions you may have about this report and its requirements.

Do I have to file?

If you have, or are required to have, a State of Illinois air pollution operating permit, you are required to file an AER. This requirement is contained in 35 Ill. Adm. Code Part 254.

How do I begin?

Around February 1 of each year, the Illinois EPA will send you the forms necessary to be completed for the AER. To complete the report, you should have available items such as: your permit, records maintained throughout the year, emissions calculation references (e.g., AP-42, FIRE, etc.) and, if necessary, your permit application.  If you do not receive your forms from the Illinois EPA in the mail by mid to late February, contact them at EPA.AERQuestions@illinois.gov. Failure to receive the AER forms does not relieve you of the obligation to file a timely report.

Once you receive your forms, identify each emissions unit that is permitted. In many cases, your permit will specify or give you a general idea as to how to calculate your emissions. Use the data you’ve collected throughout the year and the calculation methods and references to calculate your actual emissions.

What if my AER forms information doesn’t agree with my permit or application?

If the AER forms information sent to you in the mail does not agree with your permit or application, e-mail the Agency at EPA.AERQuestions@illinois.gov with the specific issues and the Illinois EPA will work with you to resolve the discrepancies.

Does everyone complete the same type of report?

No. There are two types of reports. The “short” report requires the source to report emissions for the facility as a whole. The “long” report includes the short report and additionally requires a source to report emissions at the emission unit level.

What makes me qualify for the long report?

Sources that are required to complete the long report include:

• all Clean Air Act Permitting Program (CAAPP) (or Title V) sources
• sources whose total allowable emissions are >= 25 tons/year
• sources who are in an ozone nonattainment area whose potential NOx or VOM emissions >= 25 tons/year

When determining what type of report the source must file, the Illinois EPA also looks at the values reported for the previous year. Therefore, if you reported total emissions >= 25 tons/year in the previous year but the database shows typical emissions < 25 tons/year, you will be required to file a long report.

What makes me qualify for the short report?

If you do not meet one of the requirements for submitting a long report, then you fall into the short report category. Sources that have been issued lifetime operating permits often fall into this category.

What emissions must be reported?

All sources must report annual actual emissions for regulated pollutants, which include criteria pollutants, hazardous air pollutants (HAPs), and greenhouse gases (GHGs) shown below. Emissions of HAP are to be reported only if there is a specific regulation (NESHAP or MACT) that applies to the source. For example, if your source is subject to the MACT for halogenated solvent cleaning, emissions of the HAPs used in that solvent cleaning must be reported.

Criteria Pollutants:

• CO – Carbon Monoxide
• LEAD – Lead
• NH₃ – Ammonia
• NO_X – Nitrogen Oxides
• PART – Particulate Matter
• PM₁₀ – Particulate Matter < 10 microns
• PM_2.5 – Particulate Matter < 2.5 microns
• SO₂ – Sulfur Dioxide
• VOM – Volatile Organic Material

Hazardous Air Pollutants (HAPs)

• Individual HAPs regulated at your source by NESHAP, MACT or other regulations.

Greenhouse Gases (GHGs)

• Carbon Dioxide (CO₂)
• Methane (CH₄)
• Nitrous oxide (N₂O)

How do I request confidentiality?

Certain information requested in the AER forms may be claimed as trade secret, privileged information, or confidential only if the information does not represent “emissions data” as described in 40 CFR 56.7042. All claims of trade secret must comply with 2 Ill. Adm. Code 1827.201, Procedures for Claiming and Determining Trade Secrets. A claim of trade secret for data contained in an AER applies only to that report and must accompany the report. Any information claimed as a trade secret in the AER that also appears in other documents submitted to the Illinois EPA (such as permit applications), must be claimed under separate letter. A separate, edited version of the AER, omitting the confidential information, must be submitted to the Illinois EPA to provide a version of the report which may be inspected by the public.

Is there any other information that must be reported?

Title V permits (called Clean Air Act Permit Program (CAAPP) permits in Illinois), Federally Enforceable State Operating Permits (FESOPs), and Lifetime Operating permits commonly contain conditions specifying additional data or certification requirements that must be provided with the AER. For example, issued CAAPP permits require annual compliance certifications to be completed and filed with the AER. You should review your permit before completing the AER to ensure you are providing all the necessary information.

Where do I send the completed report?

After the AER has been completed and signed, mail the report to the address below:

ATTN: Annual Emissions Report
Illinois EPA
Bureau of Air
Air Quality Planning Section (#39)
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276

We hope this short guide helps you with completing your AER report.  Please contact Mike Liebert at mliebert@all4inc.com or 314-562-7925 or your ALL4 project manager for more information on AER reporting or for assistance in completing and submitting the report.

WOTUS Rule: Let’s Settle Down and Take a Deep Breath

The Revised Rule

The United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (USACE or Corps) announced the final “Revised Definition of Waters of the United States (WOTUS)” rule On December 30, 2022. On January 18, 2023, the rule was published in the Federal Register and will be effective on March 20, 2023. This revised definition comes after much debate and ligation during the previous two presidential administrations.

The revised definition includes seven categories of WOTUS.

1. Traditional Navigable Waters
2. Territorial Seas
3. Interstate Waters
4. Impoundments (impounded bodies of water created in or from WOTUS like reservoirs and beaver ponds)
5. Tributaries (branches of creeks, streams, rivers, lakes, ponds, ditches, and impoundments that ultimately flow into the first three categories)
6. Adjacent Wetlands (adjacent wetlands are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard, or where the wetland is adjacent to waters in the first three categories)
7. Additional Waters (lakes, ponds, streams, or wetlands that do not fit into the above categories and meet either the relatively permanent standard or the significant nexus standard)

U.S. EPA and USACE provided two tests in the updated definition. These terms are taken from the 2006 Supreme Court Case Rapanos v. United States.

• Relatively Permanent – To meet the relatively permanent standard, the waterbodies must be relatively permanent, standing, or continuously flowing waters connected to traditional navigable waters, territorial seas, interstate waters, or waters with a continuous surface connection to such relatively permanent waters or these categorical waters.
• Significant Nexus – A significant nexus exists if the waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.

Neither U.S. EPA nor USACE has provided a clear definition of relatively permanent considering it uses the term in the defining statements. In addition, the seventh category, additional waters, increases the number and types of water bodies that can be included as WOTUS.

The updated rule does provide for specific exclusions:

• Prior converted cropland, adopting United States Department of Agriculture (USDA) definition and generally excluding wetlands that were converted to cropland prior to December 23, 1985.
• Waste treatment systems, including treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.
• Ditches (including roadside ditches), excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water.
• Artificially irrigated areas, which would revert to dry land if the irrigation ceased.
• Artificial lakes or ponds, created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.
• Artificial reflecting pools or swimming pools, and other small ornamental bodies of water created by excavating or diking dry land.
• Waterfilled depressions, created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of WOTUS
• Swales and erosional features (e.g., gullies, small washes), that are characterized by low volume, infrequent, or short duration flow.

Again, these exclusions do not clarify the additional waters category which leaves open the opportunity for multiple types of water bodies not otherwise categorized to fall within WOTUS. This uncertainty and ambiguous language has sparked early litigation.

Early Litigation

Although the WOTUS rule has been finalized, the Supreme Court has not finalized its opinion in Sackett v. U.S. EPA (Sackett II) based on the oral arguments presented on October 3, 2022. The court’s opinion will have impacts to the recent rule, either upholding the definition of jurisdictional wetlands or forcing U.S. EPA and USACE to revise the recent rule.

In addition, the same day as the WOTUS rule was published in the Federal Register, the Texas Attorney General filed a lawsuit to defend the State against the “unlawful Rule defining Waters of the United States which would assert Federal control over Texas land.”

Farm Groups have filed a separate lawsuit and have called for an injunction of the rule. Joining the American Farm Bureau in the lawsuit are 17 other organizations representing agriculture, home builders,  and construction infrastructure companies.

What does all this mean?

From now until March 20, 2023, we will all be tuned in to see if the rule will be stayed until the court cases have been decided. This will have the most effect on greenfield projects and expansion projects that are in the pipeline (planning or constructing in 2023 or 2024) where the project may have new jurisdictional waters as a result of applying the significant nexus test or relatively permanent test.

In the meantime, if you have a pending application with USACE regarding jurisdictional waters or are currently planning a project, you should be reaching out to your Corps district to see how those applications will be reviewed considering the current lawsuits.

Looking out into the future, changes in the definition of WOTUS may have effects on Clean Water Act programs such as National Pollutant Discharge Elimination System (NPDES) permitting. Some states already have stricter language around regulated waters, but others do not. As a general rule, the update to the WOTUS definition has more impact to the underdeveloped or rural areas of the country. Developed areas with larger cities and denser populations will have less waters that have not already been well defined under WOTUS or State Waters. The WOTUS definition doesn’t have a substantive impact in states with stricter definitions of waters of the state.  However, for certain industrial/farming sectors and states, this rule represents an overreach of federal authority. Certain states such as Texas want to continue to have primacy over waters that are not traditional navigable waters, territorial seas or interstate waters.

ALL4 currently assists our clients with not only permitting and compliance issues, but we also partner to provide regulatory permitting strategies for new facilities and expansions along with long term compliance and capital project planning. We will continue to provide updates on WOTUS issues. If you would like more information or would like to discuss a project, contact Karen Thompson at kthompson@all4inc.com.

Environmental Justice Concerns in Air Permitting

The U.S. Environmental Protection Agency (U.S. EPA) Office of Air and Radiation identified eight principles addressing environmental justice in Clean Air Act (CAA) permitting decisions in a December 22, 2022 Memorandum authored by Principal Deputy Assistant Administrator Joseph Goffman. U.S. EPA’s stated purpose for promulgating these eight principles is to improve and practice meaningful stakeholder involvement and fair treatment at all stages of the permitting process, as well as increase transparency in the permitting process. Summarized below are the eight principles to promote use of best practices, address local environmental justice concerns, and engage with affected groups throughout the air permitting process for permitting actions that may result in disproportionately high and adverse human health or environmental effects on a community.

1. Identify communities with potential environmental justice concerns: In order to promote fair treatment and meaningful involvement of affected communities when taking air permitting actions, consider using EJScreen or other suitable geographic information systems to identify communities with potential environmental justice concerns. The use of screening tools will help identify if affected communities are already affected by other pollution sources and may be vulnerable based on age, unemployment, or linguistic isolation.

2. Engage early in the permitting process to promote meaningful participation and fair treatment: Permitting actions with potential environmental justice concerns should be identified by permitting authorities before the permit application is submitted. It is encouraged that air permit applicants collaborate with the permitting authority to identify resources that facilitate understanding of potential effects of a permitting action on the affected community for meaningful participation and fair treatment before, during, and after the air permitting process. Early engagement is recommended to identify siting alternatives, if appropriate, or mitigation measures the applicant can take to address potential adverse and disproportionate effects of the permitting action.

3. Enhance public involvement throughout the permitting process: It is important for the permitting authority and the permit applicant to provide the affected community meaningful input on significant permitting actions. Recommended enhancements include training the public on how to effectively comment on permits; make all relevant permitting documents publicly available; communicate the action through mail, social media, and going door-to-door; holding formal and informal public hearings/meetings; providing translation and interpretive services; and providing easily understandable support documents.

4. Conduct a “fit for purpose” environmental justice analysis: Permitting authorities are encouraged to conduct an environmental justice analysis of appropriate scope to inform the permitting decision. The primary policy objective is to address the principle of fair treatment by further evaluating adverse and disproportionate impacts and how to prevent or mitigate those impacts. The secondary policy objective is to address the principle of meaningful involvement by fostering enhanced community engagement in permitting decisions. It is recommended that the results of the analysis are included in the administrative record and the permit shows how it may affect a community. It might be necessary for the permitting authority to conduct an analysis of disparate impacts under federal non-discrimination laws.

5. Minimize and mitigate disproportionately high and adverse effects with the permit action to promote fair treatment: Fair treatment can be promoted by examining relevant statutory and regulatory authorities (including discretionary authorities) to develop permit terms and conditions that address or mitigate identified air quality impacts. U.S. EPA may submit formal comments to identify available discretion under federal, state, or local authorities that may be applied to mitigate or address the effects of an air permitting action on the community.

6. Provide federal support throughout the air permitting process: S. EPA will be available to collaborate with the permitting authority to provide technical support, guidance, and recommendations to address the cumulative effects of a permitting action on the community.

7. Enhance transparency throughout the air permitting process: The administrative record for the permitting action should be readily available in a format and location that is easily accessible to the affected community to provide transparency in decision making throughout the air permitting process. Community concerns and addressing/responding to community concerns should be clearly documented in the administrative record. The permitting authority and applicant can consider ways to make compliance monitoring, test results, records, and reports required by the permit publicly available to the community in an understandable and readily accessible manner.

8. Build capacity to enhance the consideration of environmental justice in the air permitting process: S. EPA recognizes the importance of building the collective capacity of federal, state, tribal, and local co-regulators to promote the fair treatment and meaningful involvement of communities with environmental justice concerns in the air permitting process. U.S. EPA supports peer learning between regulatory partners, stakeholders, and affected communities to identify best practices on how to address environmental justice concerns and expand the positive impact in environmentally overburdened communities.

Regulated stationary sources should thoughtfully consider these principles when planning a significant permitting action and act in a proactive manner to address them. U.S. EPA plans further refinement of these principles in the months ahead and setup a mailbox at ejinairpermitting@epa.gov for its implementation partners (state, tribal, and local air agencies) to provide feedback. It is reasonable to expect that implementation of these principles will vary across jurisdictions and applicants should partner with the permitting agency to best understand implementation practices well before submitting an air permit application. If you need help or want to know about how this might impact your facility contact me at vspring@all4inc.com or your ALL4 project manager.

Biden Administration Issues New Executive Order on Environmental Justice

On February 16, 2023, the Biden Administration issued a new Executive Order (EO) “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” (A fact sheet summarizing the action is here.) The EO builds on EO 13985, signed on the first day of the administration. The new EO requires U.S. EPA and other agencies to develop annual plans to “address barriers they (underserved communities) face in accessing and benefitting from the agency’s policies, programs, and activities.” Some of the requirements for government agencies included in the EO are:

• Each agency must form an equity team in the next 30 days that includes senior officials from their program, policy, civil rights, regulatory, science, technology, grants, data, budget, public engagement, and legal offices to develop strategies to make sure that their programs delivery services equitably for all Americans, including those living in underserved communities. Initial plans from these teams are required to be completed by this September, and then must be updated annually, including reports on progress and milestones under the Environmental Justice Scorecard being developed to track progress under the Justice40 program.
• The existing Interagency Working Group on Equitable Data is required to improve its “collection, analysis, and use of demographic data to advance equity, and to regularly report on progress to the White House and the American public.” The EO does not provide specifics on how the group is to achieve those gains, however.
• The formation of a White House Steering Committee on equity to coordinate government-wide efforts, including assistance and review of each agency’s annual equity action plans, to ensure that those plans are in line with the administration’s initiatives around EJ.
• The Office of Management and Budget (OMB) must issue government-wide guidance to support equitable decision making including how environmental and technical assistance can equitably be employed. The EO also calls on agencies to engage with OMB on matters of financial equity.
• Agencies are to “increase engagement with underserved communities by identifying and applying innovative approaches to improve the quality, frequency and accessibility of engagement.”
• Agencies are to help both rural and urban communities access federal resources to advance equitable development policies such as community wealth building. The EO includes direction on how to help underserved communities access federal resources and requires agencies to identify displacement risks that may occur as a result of federal facility siting and development and to engage with any potentially affected community.
• The EO sets an overall goal that 15% of federal dollars in FY2025 be awarded to small businesses owned and operated by socially and economically disadvantaged individuals and directs OMB to set an FY2024 goal to work with each agency to establish an agency-specific goal.
• Finally, the EO directs agencies to affirmatively advance civil rights, directing them to “comprehensively use their respective civil rights authorities and office to prevent and address discrimination and advance equity for all, including to increase the effects of civil rights enforcement and to increase public awareness with civil rights principals.” This comes along with a requirement that those agencies have their most senior civil rights official report directly to the head of the agency.

What Does it Mean?

The new EO is like many of the documents and announcements we have seen come out of the administration and is largely focused on getting the various agencies across the government on board with the administration’s EJ agenda. This agenda includes more structure and controls being put into place to ensure that those agencies are acting with EJ in mind and coordinating their efforts with other government agencies and the administration. The EO does not have a lot of content that would immediately impact industry, though there could be aspects that “trickle down” through the agencies directly affected by the EO and how they implement the requirements outlined for them.

If you have concerns about the potential implications of this latest executive order and you’d like to discuss them, feel free to contact your ALL4 Project Manager or Rich Hamel. We’ll continue to monitor EJ guidance from the administration and states for its potential impact on permitting in the future. We can also help you evaluate permitting risks from EJ concerns to regulatory issues and assist in developing a strategy to make the permitting of your project as efficient as possible.

U.S. EPA Plan 15 – Numerous Industries Remain in the ELG’s Crosshairs

Introduction

The United States Environmental Protection Agency (U.S. EPA) released it prepublication of The Effluent Guidelines Program Plan 15 (Plan 15) on January 19, 2023. Plan 15 was prepared in accordance with Section 304(m) of the Clean Water Act, which requires U.S. EPA to biennially update Effluent Limitation Guidelines (ELGs), national limits for wastewater that is discharged to surface waters and publicly owned treatment works (POTW). These limits are on an industry-by-industry basis and are based on current existing technologies. Changing limits can mean the need to implement new treatment technologies or a change in process methods and materials. In Plan 15, U.S. EPA continues to study and focus on steps to address polyfluoroalkyl substances (PFAS) consistent with its Preliminary Effluent Guidelines Program Plan 15 (Preliminary Plan 15) [see ALL4’s October 2021 Article “U.S. EPA’s Game Plan for ELGs Outlined in Preliminary Plan 15” for more information on the preliminary plan].

Ongoing ELG Rulemaking

Plan 15 provides several new planned changes in ELGs in the U.S. EPA’s Regulatory Agenda as follows:

• Supplementary additions for “Legacy” wastewater for Steam Electric Power Generating Category (40 CFR part 423). The U.S. Court of Appeals for the Fifth Circuit shot down portions of the 2020 ELG rule pertaining to “legacy” wastewater and combustion residual leachate. The U.S. EPA is initiating a revised supplementary rule that could lower ELGs and require upgrade or installation of treatment technologies such as biological treatment systems and membrane treatment systems. U.S. EPA anticipates signing a notice of proposed rulemaking by early 2023.
• Revision of Meat and Poultry Products Category (40 CFR part 432) to address nutrient discharge. The rulemaking would address high levels of nitrogen and phosphorous in wastewater discharged to POTWs and could result in reduced ELGs, or requirements to pretreat waste, for nitrogen and phosphorous. U.S. EPA intends to propose this regulation in December 2023.
• Revision of Organic Chemicals, Plastics, and Synthetic Fibers Point Source Category: PFAS Manufacturers and Formulators (40 CFR part 414) to address PFAS. The rulemaking could result in ELGs to address PFAS through treatment such as granular activated carbon or usage of alternative materials such as coatings that contain reduced amounts of PFAS. U.S. EPA intends to propose this regulation in Spring 2024.
• Revision of Metal Finishing (40 CFR part 433) and Electroplating (40 CFR part 413) Point Source Categories to address PFAs. The rulemaking could result in ELGs to address PFAS through treatment such as granular activated carbon or usage of alternative materials such as chemical fume suppressants that contain reduced amounts of PFAS. U.S. EPA intends to propose this regulation by the end of 2024.

Ongoing ELG Studies

The following updates on ELG studies and analyses have been made since the preliminary plan was published:

• Following U.S. EPA’s analysis of landfill leachate, they have determined that revision of ELGs for Landfills Category (40 CFR part 445) are warranted. These revised ELGs, while not initiated yet, could add ELGs for PFAS requiring treatment or monitoring. Once EPA develops the schedule for this rulemaking, it will be published in EPA’s Regulatory Agenda.
• U.S. EPA will continue monitoring of PFAS use and discharge from the Pulp, Paper, and Paperboard Category (40 CFR part 430) and airports. If the studies show that action is warranted, expect ELGs to be added for PFAS. For pulp, paper and carboard, this could focus on food grade packaging; for airports this could result in a reduction in the usage of aqueous film forming foams containing PFAS.
• U.S EPA intends to initiate a POTW influent study on PFAS focusing on nationwide industrial discharge and the possible need to implement control measures at the source. U.S. EPA is planning to partner with several wastewater treatment facilities to conduct this nationwide sampling. U.S. EPA believes this data would fill a crucial data gap in the agency’s efforts to establish technology-based limits for PFAS.
• U.S. EPA intends to start a detailed study on Concentrated Animal Feeding Operations (CAFO) Category (40 CFR part 412), to allow U.S. EPA to make an informed decision whether to revise the ELGs for CAFO. If the ELGs are to be revised, expect a decrease in ELGs on nutrients such as nitrogen and phosphorous that could require action such as decreased application rates of surface fertilizers.
• U.S. EPA intends to expand the study on Textile Mills Category (40 CFR part 410) to gather information on the use and treatment of PFAS and associated PFAS discharges. If the study results show that action is warranted, expect ELGs to be added for PFAS. This could require reduction in usage of wetting or antifoaming agents that contain PFAS on textile products such as clothes.
• U.S. EPA is De-prioritizing Leather Tanning (40 CFR part 425), Paint Formulating (40 CFR part 446) and Plastics Molding and Forming (40 CFR part 463) from preliminary review. U.S. EPA does recommend state and local permitting authorities apply water based effluent limitation, meaning discharge limits may still apply.
• Following U.S. EPA’s study of the Electrical and Electronic Components (E&EC) Category (40 CFR part 469), U.S. EPA has decided the study does not demonstrate a need to revise existing ELGs. U.S. EPA will continue monitoring E&EC for PFAS discharge data through the POTW Influent Study.

What Can I Do?

As U.S. EPA continues to administer further studies and rulemakings to the ELGs, ALL4 will continue to provide updates to regulatory developments surrounding ELGs. Stay up to date by looking out for these blogs which may affect you. If you think the changing ELGs may affect you ALL4 can help determine and implement an initial and long-term strategy to comply with the changing limits. If you would like to know more about the changing ELGs, or how ALL4 can assist you, please reach out to Evan Mia at emia@all4inc.com.

Understanding CMS Data Validation

Many facilities that are subject to the requirements of a Title V Operating Permit must operate and maintain continuous monitoring systems (CMS) to demonstrate ongoing compliance with various state and Federal requirements in the permit. Managing the quality and evaluating the validity of data collected by a CMS is one of the most important aspects of running a successful CMS program.  A myriad of factors can influence how CMS data validity is assessed, including but not limited to: the parameter being monitored, the type of CMS, the applicable regulations (a source that is subject to two or more regulations may have different monitoring requirements for each), CMS maintenance, and CMS malfunction.  The goal of this article is to summarize some of the concepts surrounding data validity and substitution and show how they come into play in a hypothetical scenario.

What is a CMS?

CMSs are systems that are used to collect data that are used for demonstrating compliance with an applicable regulation on a continuous basis. CMS is a comprehensive term that includes several different types of monitoring systems.  Three of the most common CMS are continuous emissions monitoring systems (CEMS), continuous opacity monitoring systems (COMS), and continuous parameter monitoring systems (CPMS).

What is data validity? What is invalid data, and what causes data to be invalid?

Valid data is data that is collected by the CMS that can be used to demonstrate compliance with an emissions or operating limit.  For data to be valid, it must be quality-assured using the appropriate quality assurance procedures determined by the type of CMS and the applicable regulations, and it must also be representative of actual conditions in the environment being monitored (typically either in an exhaust stack or within a process or control device).

Invalid data is data that is collected by the CMS, but is not considered to be quality-assured or representative of what’s actually occurring in the environment being monitored.  A number of things can cause invalid data, but typical causes are CMS maintenance, CMS malfunctions, and issues with quality assurance/quality control on the system. Invalid data that is caused by the CMS failing quality assurance or quality control checks is considered to be out-of-control (OOC).

Sometimes, data can be invalidated based on how the compliance average is handled.  For example, if the compliance average is 1 hour, some types of CMS will have a valid hour as long as there is at least one valid minute for each 15-minute period in that hour.  For other types of CMS, at least 75% of the minutes in that hour must be valid to constitute a valid hour of data.  For longer averaging periods, the validity of the averaging period can be configured in several ways.  For example, for a 3-hour period, the validity of the period can be configured to be valid when only one hour is valid (one-of-three), two hours are valid (two-of-three), or all three hours are valid (three-of-three). A CMS monitoring one pollutant may have several data validity requirements – for example, the state and Federal requirements for data validity might be different – so it is important to understand the differences across data validity requirements and how they affect data used for compliance determinations.

What is done with invalid data?

Typically, if facilities are subject to continuous monitoring requirements, the length of the periods when invalid data were collected (and a compliance demonstration is not available) must be reported to the governing regulatory agency, but not necessarily the values. A period when a compliance demonstration is not available is considered downtime. Not all invalid data causes downtime; the threshold of invalid data that causes downtime can depend on the CMS and the applicable regulations. Depending on the type of CMS, there are downtime thresholds that may trigger the need to submit a more detailed report or even fines if the downtime is too high.

In some instances when a CEMS is being used, invalid data will be substituted to allow for estimation of emissions.  The facility’s data acquisition and handling system (DAHS) should be configured to handle data invalidation and substitution based on the applicable regulation and the facility’s needs.

What is data substitution, and when does it come into play?

Data substitution is the practice of substituting invalid data based on other valid data that was collected.  This is typically done to estimate mass emissions (e.g., tons of SO₂ in a 12-month period).  Data substitution can be as simple as taking the average of the period before and after the invalid period, or it can be as complicated as using statistical analysis to determine confidence levels and using values that align with that, such as the data substitution requirements laid out in 40 CFR Part 75 (Part 75).  Part 75 uses tiered data substitution; the more downtime a CMS has, the higher the substituted value used to estimate emissions.  The correct data substitution procedures are based on the applicable requirements for each CMS. Some regulations or permits require Part 75 data substitution, some require more general substitution, and some don’t allow for substitution.

The hypothetical scenario:

A facility must continuously monitor the stack from their process with NO_X and SO₂ CEMS.  The NO_X has an emission rate limit of 50 pounds per hour (i.e., lbs NO_X /hr) on a 1-hour average.  The SO₂ has a mass emissions limit of 50 tons on a 12-month rolling sum basis.  It is important to distinguish the difference between an emissions rate and a mass emissions limit since it can determine if missing data substitution is required.  Considering the scenario above, the NO_X emissions rate in terms lbs/hr is the average rate of emissions that occurred during that hour, not the mass of NO_X emitted during the hour.  If the source operated at an emission rate of 50 lbs NO_X /hr and only operated for 30 minutes in that hour, then the mass emissions would only be 25 lbs of NO_X.  Therefore, data substitution is not typically applied when complying with an average emissions rate that occurred during the hour.

On the other hand, SO₂ has a mass emissions limit of 50 tons on a 12-month rolling sum basis.  Since the emissions limit is in terms of a sum, missing data needs to be considered at the hourly level (i.e., you do not get to sum zeros when the source is operating and the CEMS are not functioning).  The facility uses hour before/hour after substitution procedures for SO₂.  The facility experiences an issue in the sampling system that prevents sampling of stack effluent for two hours.  How should the facility assess its downtime and data substitution for this period?

First, the period when the sampling system was not operating must be invalidated.  The facility is allowed to use substituted data for SO₂ for those two invalid hours.  The facility uses the average of the SO₂ emission rate for the hour before the event and the hour after the event to report SO₂ emissions during the missing two hours.  For NO_X, the facility does not use data substitution procedures since the emissions limit is an emissions rate (i.e., lbs NO_X/hr) versus a mass emissions rate (i.e. lbs of NO_X emitted IN the hour).

In both cases, the two hours in which the sampling system was having issues are considered CMS downtime and the duration of the event will be recorded to be submitted to the governing regulatory agency.  However, substituted data would only be utilized for the SO₂ mass sum limitation and not for the average NO_X emissions rate limitation.

What now?

Every facility that must maintain and operate a CMS will be subject to rules that determine data validity and specify whether a substitution methodology is allowed or required. The regulatory agency may also have a policy that determines when enforcement action is taken based on the amount of invalid data reported by a facility. It is important to accurately characterize your CMS data and the amount of invalid data on required reports, but it is not always straightforward. Please reach out to me at (610) 933-5246 or at tcunningham@all4inc.com for more information regarding this subject or any other general CMS questions you may have.

10 Steps to Preparing a Successful Air Construction Permit Application for New Equipment

Are you planning on building a new greenfield facility that will have air emissions units or expanding your current facility with additional air emissions units?  If so, there is a good chance that you will need to obtain an air construction permit before commencing construction on your project.  Here is a list of 10 steps to preparing a complete and well-organized air permit application.

Step 1.  Identify your Emissions Units

Take an inventory of your planned equipment and identify all the potential sources of air emissions that will be involved in the project.  There are state-specific definitions of ‘emissions unit,’ but a general definition for emissions unit is any equipment capable of emitting air contaminants to the atmosphere.  Some examples of emissions units include kilns, boilers, engines, paint booths, chemical storage tanks or reactors, and haul roads.

Step 2.  Calculate Potential to Emit (PTE)

To determine whether or not you will need to apply for an air permit, you will need to calculate the potential to emit (PTE) for each pollutant associated with the new emissions units identified as part of the project.  Calculating the PTE will also determine what level of air permit will be appropriate for the project.  Potential emissions are different than actual emissions.  Generally, potential emissions are the maximum emissions that would result from the emissions unit at full capacity 24 hours a day, 365 days a year.  Emissions factors, capture efficiencies, and control efficiencies used to calculate PTE can come from a variety of sources including (but not limited to) vendor guarantees, stack testing, state-approved emissions factors (e.g., from industry studies), or U.S. EPA’s AP-42 compilation of emissions factors for various industries and operations.

Step 3.  Check Exemptions

Once you have identified your emissions units and calculated their PTE, it’s time to review the list of exemptions in your local/state rules to check whether your project’s emissions units might fall under either a categorical or emissions threshold exemption.  Your new equipment might be on a list of emissions units that your agency categorically exempts from needing an air permit or your project’s potential emissions might be so low that you fall under the agency’s emissions thresholds that could eliminate the need for obtaining an air permit for the project.  This is an important step to ensure that you don’t waste time and energy if your project is exempt from air permitting requirements.

Step 4.  Determine the Permit Level you Need

Now that you have reviewed the exemptions and concluded that your project will need an air permit to construct, the next step will be to determine what level of construction permit is appropriate for your project.  Every agency has different naming conventions for levels of construction permits, but in general there are two basic levels of air permits:  minor and major.  This delineation is based on several factors, but mainly on whether your site is considered a minor or major source of emissions before the project and also the calculated PTE of all the emissions units involved in your project.  There are a number of other variables and layers of complexity that go into the selection of the type of air permit that your project may need, so if you are unsure or confused as to what type of air permit is right for your project, it is advisable to reach out to an air quality consultant to review your project’s details and help with this decision.  One final determination in this step is to review whether your facility is in an Environmental Justice (EJ) area as this could require you to engage in some public outreach regarding the details of the project and the permit application could face additional scrutiny by the agency.

Step 5.  Set up an Agency Meeting

If your emissions are close to or at a major source level, then setting up a meeting with the permitting agency is strongly encouraged (and sometimes required).  This meeting will serve to discuss the project details with the agency and confirm that the permit engineers at the agency are on the same page as you with regard to what type of application will be required and to also get a feel for how quickly the agency might be able to turn around your application and issue the air permit.  Major New Source Review (NSR) permits can sometimes take from 12-18 months to issue depending on the current backlog at the agency and the complexity of your application.  Minor air permits should not take as long and can usually be issued within 90-120 days depending on the agency and whether a public comment period is required. You should also determine whether the permitting agency has an expedited review program and whether your project can use it.

Step 6. Confirm Activities Allowed Prior to Obtaining Permit

You do not want to “commence construction” before you obtain the appropriate air permit from the state or local agency that has jurisdiction over your project.  Each agency has its own set of standards on what activities are allowed or prohibited before the air permit is obtained and often they are based on the type of permit you are seeking (minor versus major).  A typical example of what might be allowed before obtaining the air permit would be site clearing, grading, or entering into binding agreements or contractual obligations with vendors.  On the other hand, some examples of activities that may be prohibited before obtaining your air permit would include installation of equipment with air emissions or footings, pilings, or other materials to support these structures.  You will want to confirm with the agency what activities will be allowed prior to receiving your final construction permit for the project.

Step 7.  Communicate the Timeline to Stakeholders

Once you have confirmed with the agency the type of air permit that will be required for construction of the project, the estimated timeline for issuance of the permit by the agency, and the activities that are allowed prior to receipt of the construction permit, be sure to communicate these details to the project stakeholders.  It may come as a shock to some of the project stakeholders that for some major NSR air permit applications it can take up to 18 months (or sometime longer) to receive your final air permit.  The sooner you can communicate a realistic timeline of when your air permit will likely be issued, the better the project team can evaluate their project timelines and adjust appropriately.

Step 8.  Complete the Application

The next step is to complete the air permit application.  Your local agency will have likely have the appropriate forms and instructions posted on their website.  Typical air permit applications will include a narrative describing the process operations and equipment, a list of emissions units and control equipment with descriptions of emissions calculation methodologies, flow diagrams, site diagrams, PTE calculations, a regulatory applicability discussion, and the appropriate application forms. Sample calculations and copies of non-standard emissions factor references or vendor information are also a good idea to include for completeness. For some applications, there may be additional requirements such as air dispersion modeling or control technology analyses.  Minor source applications can usually be completed in 2-4 weeks while major source applications can take months depending on the specific requirements of the application and whether air dispersion modeling is required. The agency will review the application and may issue a request for additional information if your application is not complete or if something is not clear to them.

Step 9.  Maintain Agency Communication

It is very important to communicate with the agency throughout the application process as project details change or new information becomes available.  No matter the size of the project, things rarely go exactly as planned and so it is important to keep the agency informed of changes or additions to the project in a timely matter.  Try to avoid submitting your application with any big surprise elements that the agency is not expecting as this could throw off the issuance timeline.  Finally, respond to all agency questions in a timely manner as this will keep their attention on your project and allow for as efficient an application process as possible.

Step 10. Review the DRAFT Permit.

After you have submitted your air permit application, answered any follow up questions from the agency, and subsequently received your draft air permit for review, it is very important to read through the permit language to ensure that the information is accurate and you understand how you will comply with it.  If recordkeeping or monitoring requirements seem to be too onerous or permit limits too strict based on your experience or knowledge of similar air permits, it is perfectly acceptable to point this out in your review of the draft permit and start a dialogue with the agency on revisiting the language or limits.  This is your last chance to ‘push back’ on the permit language if there is something you feel the facility should challenge and it never hurts to initiate some discussions as to why you feel the need for changes to the permit language.

In summary, air permit applications can be challenging and complex and so we hope these 10 steps make your permit application experience a little bit smoother the next time your facility needs to apply for an air permit for new equipment.

Please contact Mike Liebert at mliebert@all4inc.com or 314-562-7925 or your ALL4 project manager for more information on air permitting strategy or for assistance developing your air construction permit application.

LMAPCD is Proposing to Change Several Air Regulations

Update (3/1/2023): The Public Comment Period has been extended to March 15, 2023.

Louisville Metro Air Pollution Control District (District) is proposing amendments to the following District regulations:

02 – Definitions,  11 – Control of Open Burning,  13 – Control of Objectionable Odors in the Ambient Air, 15 – Version of Federal Regulations Adopted and Incorporated by Reference

These proposed amendments are currently in the public comment period which began November 16, 2022 and runs through February 16, 2023. Pending adverse comments from the public that the District must address, the proposed amendments will likely go into effect in March 2023.

The following sections summarize the proposed amendments for each regulation and the potential impacts to regulated facilities.

Regulation 1.13 – Control of Objectionable Odors in the Ambient Air

This regulation provides standards for objectionable odors which are defined as “any odor present in the ambient air that, by itself or in combination with other odors, gases, or vapors, is offensive, foul, unpleasant, or repulsive.” This proposed amendment adds qualifying language to the Section 2.1 standard prohibiting emissions of “objectionable odor.” With this amendment, the odor must cause substantial injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public. (underlined words represent new added language for the proposed amendment).

This regulation is being amended in response to a lawsuit regarding alleged violations of this regulation. The added language is proposed to match state regulations regarding odors, contained in Kentucky Revised Statutes (KRS) §77.155, and to reflect the District’s current practice and policy of enforcing this regulation. The added language provides more stringent criteria on what is deemed as an objectionable odor (as determined by District investigation); however, the term “objectionable odor” remains subjective and is not determined using a prescribed field olfactometry procedure via Odor Intensity Referencing Scales (OIRS) and/or calibrated field olfactometers (e.g., a Nasal Ranger). Furthermore, the District retains sole deference to enforce the criteria because no objective criteria is established in the regulation.

Regulation 1.13 regulates objectionable odors in all of Jefferson County, Kentucky. However, District reports indicate odor complaints and investigations are most concentrated in Louisville’s Butchertown and Rubbertown neighborhoods located in the city’s central and west areas, respectively. It is important to note, enforcement actions on Regulation 1.13 (i.e., District investigations, public complaints, etc.) are likely to be highlighted in public notices associated with proposed preconstruction and operating permits which could heighten environmental justice[1] scrutiny from the District or members of the public. Enforcement actions by the District related to alleged violations of Regulation 1.13 could result in District-required implementation of odor abatement or controls, including installation of a catalytic incinerator or scrubber, tightly closing buildings with odorous materials, or updating handling procedures to minimize spillage of odor-producing materials.

If your facility has a history of enforcement actions on Regulation 1.13, ALL4 recommends reviewing odor mitigation practices whenever a facility modification or project is considered. A proactive approach to address potential sources of objectionable odors may reduce environmental justice scrutiny and demonstrate compliance with Regulation 1.13.

Regulation 1.02 – Definitions

This regulation provides definitions for the terms used throughout Parts 1-7 of the District’s Regulations. The proposed amendment to this regulation adds Appendix B containing a list of “trivial activities” and updates the definition of “Volatile organic compound” by adding one additional excluded compound primarily used in the production of polyurethane rigid insulating foams [cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z)].

Per the District’s Preliminary Regulatory Impact Assessment (PRIA), the list of trivial activities is being incorporated into Regulation 1.02 at the request of U.S. Environmental Protection Agency (U.S. EPA) for approval in a future State Implementation Plan (SIP) submittal. Previously, the District published the list of trivial activities on its website pursuant to Section 1.41 of Regulation 2.16 (Title V Operating Permits). Trivial activities are activities that are considered inconsequential by the District and not subject to stationary source air permitting requirements.

ALL4 recommends the trivial activities list be reviewed whenever a facility modification or project is considered to determine if the change (or a portion thereof) is exempt from permitting requirements by virtue of classification as a trivial activity.

Regulation 1.11 – Control of Open Burning

This regulation provides requirements for the control of open burning by any person; in particular, this regulation describes acceptable open fires as determined by the District. The proposed amendment adds clarifying language for controlled burns performed pursuant to Section 2.1.4. At the request of prescribed fire practitioners, the District eliminated the ban on the use of accelerants for controlled burns. This amendment is not expected to materially impact permitted stationary sources.

Regulation 1.15 – Federal Regulations Adopted and Incorporated by Reference

This regulation identifies the version of U.S. EPA regulations in Title 40 to the Code of Federal Regulations (CFR) adopted and incorporated by reference in Part 5 and Part 7 of the District Regulations. The proposed amendment incorporates the most recent version of the CFR incorporated by reference elsewhere in District Regulations. This amendment is procedural in nature to provide the District appropriate authority to enforce Federal regulations.

Summary

ALL4 will be following the public comment period for any developments (e.g., changes to proposed language). If you have questions about how the proposed amendments could affect your facility’s compliance, or what your next steps should be once the changes are finalized, please reach out to me at pbarreto@all4inc.com or Stewart McCollam at smccollam@all4inc.com. ALL4 is here to answer your questions, help you evaluate how regulatory changes impact your operations, and assist your facility with all aspects of air quality compliance.

New Chemicals Added to Toxics Release Inventory

On November 30th U.S. Environmental Protection Agency (U.S. EPA) finalized a rule in response to a petition submitted by the Massachusetts Toxics Use Reduction Institute (TURI) requesting 25 chemicals be added to Toxic Release Inventory (TRI) reporting list. Although the petition from TURI requested 25 chemicals, the final rule approved 12 chemicals to be added to the TRI reporting list. 

Reports for the following 12 chemicals manufactured, processed, or otherwise used above TRI reportable thresholds will be due July 1, 2024 based on calendar year 2023 data. 

• Dibutyltin dichloride (Cas No. 683-18-1)   polyvinyl chloride stabilizer, veterinary  
• 1,3-Dichloro-2-propanol (Cas No. 96-23-1)   
• Formamide(Cas No. 75-12-7)  
• 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta[g]-2-benzopyran (Cas No. 1222-05-5)
• N-Hydroxyethylethylenediamine (Cas No. 111-41-1)
• Nitrilotriacetic acid trisodium salt (Cas No. 5064-31-3)
• p-(1,1,3,3-Tetramethylbutyl)phenol (Cas No. 140-66-9) 
• 1,2,3-Trichlorobenzene (Cas No. 87-61-6) 
• Triglycidyl isocyanurate (Cas No. 2451-62-9) 
• Tris(2-chloroethyl) phosphate (Cas No. 115-96-8) 
• Tris(1,3-dichloro-2-propyl) phosphate (Cas No. 13674-87-8) 
• Tris(dimethylphenol) phosphate (Cas No. 25155-23-1) 

These chemicals are typically used in processes including, but not limited to, fragrance, metal cutting additive, polyvinyl chloride stabilizer, watercolor binder, pulp and paper processing, lubricants, production of silicones, polyurethanes, adhesives, sealants, paints, lacquers, resins, plastics, herbicides, insecticides, pesticides, fuel additives, surfactants, detergents, industrial cleaners, emulsifiers, specialty solvents, powder coating, curing agents, and flame retardant. 

Additionally, U.S. EPA classified 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta[g]-2-benzopyran, a chemical used in cleaning products, laundry detergent, fabric softener, air fresheners, scented candles, plastic and rubber products, and paper products, as persistent, bioaccumulative, and toxic (PBT), and assigned a 100-pound threshold.  Note that the de minimis exemption does not apply to PBT chemicals. 

Since the chemicals due to be added to TRI reporting list are used in a wide range of activities ALL4 suggests evaluating chemical usage in advance of the July 1 ,2024 reporting deadline to ensure continued compliance with TRI reporting requirements.   

For additional information regarding preparation of TRI reports please consider attending the informational webinar being hosted by ALL4 in April 2023. Additionally, if you have any questions or would like any assistance preparing calendar year 2023 TRI reports, please contact info@all4inc.com.