New Jersey Environmental Justice Impact Statement Guidance

On April 17, 2023, the New Jersey Department of Environmental Protection (NJDEP) published the Environmental Justice (EJ) Rule under New Jersey Administrative Code (N.J.A.C.) 7:1C. The EJ Rule is applicable to any major source facility, or other type of facility as defined in N.J.A.C. 7:1C-1.5, submitting a permit application to NJDEP for a new or expanded facility or renewing a major source permit for a facility which is located in an Overburdened Community (OBC) as determined by the state’s Environmental Justice Mapping, Assessment and Protection Tool (EJMAP). The requirements under the EJ Rule must be completed prior to NJDEP beginning its review of the submitted permit application or renewal.

What is an EJIS?

One of the most extensive requirements of the EJ Rule is the development of an Environmental Justice Impact Statement (EJIS) for the proposed permit action or renewal. The purpose of the EJIS is to provide the community with information related to the permit application, and how the project contributes to environmental and public health stressors in the OBC. In addition to outlining the EJIS requirements under N.J.A.C. 7:1C-3, NJDEP has published a guidance document to help applicants navigate the development of the EJIS. Upon submission and approval, EJIS documents will be posted publicly to NJDEP’s EJ website.

EJIS Requirements

While there is no mandatory format or outline for an EJIS, N.J.A.C. 7:1C-3.2 includes several topics that must be adequately covered in the final, published EJIS.  These topics include:

• An executive summary of the EJIS
• A detailed description of the facility’s municipal and neighborhood setting
• Descriptions of the facility’s current and proposed operations
• Evidence of satisfying any local EJ requirements or cumulative impact analysis requirements
• Information from the facility’s initial EJ screening (either obtained through EJMAP or provided by NJDEP after the permit application was submitted)
• Assessment of positive/negative impacts of the facility on each of the environmental and public health stressors identified as affected in the EJ screening process
• Public participation plans that include the proposed methods to notify the members of the OBC of the permit application and proposed public hearing location
• Demonstration that the applicant is not located in an OBC subject to adverse cumulative stressors and will avoid disproportionate impact by not creating adverse cumulative stressors. If this demonstration cannot be done, the applicant will be required to provide additional supplemental information.
• As applicable, demonstration that a new facility will serve compelling public interest in the OBC. Under N.J.A.C. 7:1C-5.3, compelling public interest is demonstrated when the new facility is primarily serving essential environmental, health, and safety (EHS) needs; is necessary to serve essential EHS needs; and there are no reasonable alternatives outside of the OBC to serve essential EHS needs of the OBC and its individuals.

Depending on the outcome of the applicant’s initial EJ screening, additional supplemental information may be required to be submitted with an EJIS in order to be considered complete. If the facility is located in an OBC that is subject to adverse cumulative stressors or is unable to demonstrate the project will avoid disproportionate impacts to the stressors, the supplemental information will be required to be submitted with the EJIS. N.J.A.C. 7:1C-3.3 provides a comprehensive list of the 14 required supplemental information components. Some examples of the data that will need to be either compiled from previous projects or developed for the EJIS include several types of site mapping, a traffic study, and a detailed compliance history.

EJIS Resources

Preparing an EJIS will require a lot of work and refinement to get to the final product. It is highly recommended that facilities which need to submit an EJIS make the development a collaborative process. This could include not only working with ALL4 and our past experiences with other EJISs, but also other third parties to assist with potential supplemental information, and even collaborating with NJDEP. NJDEP has been very responsive in providing feedback and comments on draft EJIS documents prior to finalization. Additionally, having support from teams outside of the applicant facility will help ensure the EJIS is easy for an outside reader to understand, which is a crucial element to the accessibility of an EJIS to the public community.

If you have questions or need assistance in developing an EJIS and complying with the EJ Rule, please contact Molly McHale at mollymchale@all4inc.com or 267.921.1050.

For more information about the EJ Rule and its other requirements, ALL4 has published these additional articles:

• New Jersey Environmental Justice Rule Public Participation and Implications
• Advancing Environmental Justice: New Jersey’s Approach to Addressing Cumulative Stressors
• New Jersey Environmental Justice Final Rule Effective April 17, 2023

The Risk of Operating Obsolete CMS Equipment

Continuous Monitoring Systems (CMS) are required by applicable regulations to demonstrate compliance with emissions standards and/or parametric operational limits. Facilities have an obligation to minimize CMS downtime to maintain a continuous compliance demonstration. What if CMS downtime is incurred because a component of a CMS malfunctions and parts, service, or even technical expertise are no longer available by the manufacturer to correct the issue? How can this be avoided? What are your facility’s obligations to replace antiquated or obsolete equipment needed for regulatory purposes?

Your facility is potentially at risk of violations and enforcement due to increased CMS downtime related to obsolete equipment. Agencies typically use enforcement discretion when a catastrophic CMS malfunction occurs. However, the agency may be less forgiving if the CMS downtime could have been avoided by utilizing equipment that has available parts and support, especially if you were made aware of the obsolescence by the manufacturer and neglected to act. In most cases, the manufacturer will issue an obsolescence letter that establishes a schedule for when the analyzer or monitor will no longer be supported. CMS support can include providing replacement parts, malfunction service, and technical expertise.

The recommended steps for managing the obsolescence of your CMS components are presented below.

Development of an Obsolescence Plan

It is important to develop and maintain an obsolescence plan for your CMS that tracks the remaining lifespan of the CMS components to properly plan and budget for replacements. An obsolescence plan includes tracking manufacturers’ websites and compiling obsolescence letters to develop a schedule for capital expenditures over the next five years or so. The obsolescence plan is a living document and should be reviewed at least annually.

Budget Accordingly

The easiest part of the obsolescence plan is its development. The hardest part of the obsolescence plan is staying true to the capital expenditures. It can be a hard decision to spend money to replace CMS equipment that work fine today. However, what happens when it breaks tomorrow and cannot be repaired? An obsolescence plan may outline the replacement schedule and associated effort, but it is the allocation of capital that executes the obsolescence plan. If you still can’t budget the capital, there may be other options depending on how you want to manage risk. Evaluate similar components across all your (and maybe a sister facility’s) CMS components to stock replacement components that can be available across the facility (or facilities). Engage a third-party integrator and discuss replacements.  Some integrators maintain an inventory of replacement parts that can be immediately deployed upon request.

Even though the supply-chain restraints are easing, it has taught us that next day overnight delivery options aren’t available for all CMS components. Some analyzers can still take up to a year to procure. Understanding the lead times for replacements of obsolete CMS should also be considered when executing your obsolescence plan (i.e., if CMS components are projected to be readily available and quickly procured, then the risk of quickly obtaining the equipment would be low).

Plan for Initial Certification or Recertification

Facilities should operate CMS in accordance with a Quality Assurance/Quality Control (QA/QC) Plan. The QA/QC Plan outlines the actions to be taken if an analyzer or major CMS component is replaced. Depending on the nature of the replacement, the CMS may need to be initially certified or recertified. A CMS certification can be a long and tedious process, so it is best to be prepared for it before it is suddenly upon you after a malfunction event. ALL4 presented a webinar in November 2023 that covered the steps of recertification and the importance of a plan for analyzer malfunction for both temporary and permanent replacements. To summarize those steps, when recertifying an analyzer you will need to notify the agency, test the analyzer for accuracy and validity, and update associated plans. If you would like more information about CMS recertification, you can watch the webinar or reach out to me or anyone on the ALL4 CMS team.

Additional Risks to Consider

Some additional risks to consider when thinking about your now-obsolete analyzer include the potential to accrue excessive monitor downtime or whether process downtime is needed to avoid accruing said monitor downtime. To prevent excessive monitor or process downtime, you may want to acquire a backup or replacement analyzer to allow for a temporary or permanent installation and recertification of the CMS. Large durations of monitor downtime are best avoided because they can trigger additional scrutiny or even an audit from the regulatory agency.

Takeaways

If you have obsolete CMS, put an obsolescence plan in place! Hoping that obsolete CMS will last another year or budget cycle can be risky. With some analyzer lead times as high as they are right now, it might be wise to order a backup or replacement for your now-obsolete analyzer as soon as possible. Limiting both monitor and process downtime is crucial to keeping a site productive and in compliance. If you have any questions, feel free to reach out to me at bjohnson@all4inc.com or (502) 874-4500.

Final Lime Manufacturing NESHAP – U.S. EPA decides against HBEL

The final amendments to 40 CFR Part 63, Subpart AAAAA (National Emission Standards for Hazardous Air Pollutants for Lime Manufacturing [Lime Manufacturing NESHAP]) were signed on June 28, 2024 and were published in the July 16, 2024 Federal Register. With this final rulemaking, the United States Environmental Protection Agency (U.S. EPA) is setting maximum achievable control technology (MACT) emissions standards for previously unregulated hazardous air pollutants (HAP):

• hydrogen chloride (HCl);
• mercury (Hg);
• organic HAP (as the sum of formaldehyde, acetaldehyde, toluene, benzene, xylenes (mixed isomer), styrene, ethyl benzene, and naphthalene); and
• dioxin/furans (D/F).

Background

The Lime Manufacturing NESHAP regulates HAP emissions from new and existing major source plants that use a lime kiln to produce lime product from limestone or other calcareous material by calcination. Lime kilns at pulp and paper mills and a few other specific types of units are not subject to the Lime Manufacturing NESHAP.

In its 2020 residual risk and technology review (RTR) for the Lime Manufacturing NESHAP, U.S. EPA found that the current rule provided an ample margin of safety to protect public health. However, in light of the Louisiana Environmental Action Network v. EPA, 955 F.3d 1088 (D.C. Cir. 2020) (LEAN) decision, U.S. EPA proposed revisions to the Lime Manufacturing NESHAP on January 5, 2023 and included emissions standards for the unregulated HAP. U.S. EPA published a supplemental proposal on February 9, 2024 that addressed economic impact concerns expressed in public comments. See ALL4’s blog covering the February 9, 2024 supplemental proposal for more details.

Final Emissions Standards

The following table summarizes the final emissions standards for the previously unregulated HAP by lime kiln type and type of lime produced. The limits are largely consistent with those proposed in the February 9, 2024 supplemental proposal, with the exception of the organic HAP limit. U.S. EPA agreed with public commenters on adjustments to how U.S EPA calculates the 3x representative detection limit (RDL) they are finalizing as the MACT floor, which resulted in a higher emissions limit than what was originally included in the supplemental proposal.

^ADolomitic lime (DL), quick lime (QL), dead burned dolomitic lime (DB).

^BOrganic HAP is an aggregated emission limit for formaldehyde, acetaldehyde, toluene, benzene, xylenes (mixed isomer), styrene, ethyl benzene, and naphthalene as a surrogate for total organic HAP.

Notably, U.S. EPA decided not to promulgate a health-based emission limit (HBEL) for HCl. Clean Air Act (CAA) section 112(d)(4) grants U.S. EPA the flexibility to set a less stringent emission limit for a HAP based on an established health threshold with an ample margin of safety than would otherwise be required using the technology-based method of setting MACT standards. In the February 9, 2024 supplemental proposal, U.S. EPA asked for public comment on the use of an HBEL for HCl, as opposed to a MACT standard, because the 2020 RTR demonstrated very low risk to public health from HCl emissions from the source category. However, in this final rulemaking, U.S. EPA abandoned its proposed HBEL and decided to set a MACT standard for HCl, which will certainly be of interest to other industries. The February 9, 2024 supplemental proposal was one of the few times that U.S. EPA has proposed to set an HBEL, and its exclusion from the final rule sets a potential precedent as other NESHAP are revised to cover low-risk, yet previously unregulated HAP pursuant to the LEAN decision.

The final rule includes an emissions averaging compliance alterative that allows facilities to comply with the applicable HCl and Hg limits by averaging emissions across multiple existing kilns in the same subcategory located at the same facility, at the cost of having to meet alternative emission limits that are 10% more stringent. Facilities that intend to use the emissions averaging compliance alternative must develop an emissions averaging plan detailing the affected units, control technologies installed, parametric monitoring, and HAP test plan.

Timing and Impacts

Although the pre-publication version of the rule had set the effective date 60 days from Federal Register publication, the revisions became effective as of July 16, 2024. The compliance date for existing affected sources is July 16, 2027. The final rule includes first-time emissions limits for the 34 major sources subject to the Lime Manufacturing NESHAP, as well as performance testing, monitoring, recordkeeping, and reporting requirements. Facilities may need to install additional controls to meet the new MACT standards. U.S. EPA in this rulemaking estimates the average capital investment per facility will be more than $14 million and the average annual cost per facility to comply with the requirements will be approximately $5 million.

Summary

The revised rules will add a substantial compliance burden on the affected facilities and will require many to consider a permitting and compliance strategy that involves additional controls to meet the standards. It remains to be seen whether transitioning from major to area source status will be a viable option for facilities to avoid these standards because U.S. EPA is contemplating changes to the “Major MACT to Area” provisions and rethinking the prior “Once In, Always In” policy. If you have questions on the revised rules or need assistance with planning for and implementing these new requirements, ALL4 can help you develop and implement a compliance strategy, design a stack testing program, and collect and submit data and reports. Reach out to either your ALL4 Project Manager or Caleb Fetner at cfetner@all4inc.com for assistance with these new requirements.

CFATS Update

As we approach the first anniversary of the expiration of the statutory authority for the U.S. Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program on July 28^th, there is still no concrete path to reauthorization on the horizon. Read on for recent activity related to CFATS.

Reauthorization

DHS and industry groups such as the American Chemistry Council (ACC) are continuing to push for the CFATS program’s reauthorization. There have been attempts at reauthorization, including a bipartisan amendment to the 2025 National Defense Authorization Act (NDAA) in mid-June 2024 that would have reauthorized CFATS; however, the amendment failed to reach the floor in the house. Two Senate committee chairs, Environment and Public Works Committee and Homeland Security and Governmental Affairs Committee, are currently looking at amendments to the 2025 defense bill and other ways to reauthorize CFATS. Funding was maintained in the fiscal year 2024 budget, meaning that funding is available if/when the program is reauthorized. In July, DHS hosted virtual Chemical Security Seminars in lieu of the in-person Chemical Security Summit held in years past. CFATS reauthorization continues to have strong bipartisan support in both houses.

CSAT Breach

According to DHS’s website, the Chemical Security Assessment Tool (CSAT) portal was the “target of a cybersecurity intrusion by a malicious actor from January 23-26, 2024.”  During the CFATS program’s tenure, facilities subject to CFATS were required to submit information to DHS via the CSAT portal including Top-Screen surveys, Security Vulnerability Assessments, Site Security Plans, and Personnel Surety Program (PSP) submissions. The PSP submissions included personally identifiable information (PII) for individuals with access to areas where regulated chemicals are stored at covered facilities; PII included, at a minimum, first and last name, date of birth, and gender or country of citizenship. The PSP screened individuals’ PII against the Terrorist Screening Database (TSDB) to alert DHS to individuals with known terrorism ties seeking access to chemicals of interest (COI).

The CSAT portal has been inaccessible since the program’s statutory authorization expired in July 2023. DHS launched a thorough investigation once the intrusion was discovered; that investigation turned up no evidence of exfiltration of data but revealed that the intrusion may have resulted in unauthorized access of information submitted to the portal as well as CSAT user information. In late June 2024, DHS issued notifications to participant facilities about the breach. Out of an abundance of caution, DHS has recommended the following actions:

• CSAT users should change passwords for any other business or personal accounts that use the same password as their most recent CSAT portal login; and
• Individuals whose PII was submitted through the PSP should be notified of the incident. Because the PII submitted did not include contact information, DHS is unable to contact individuals directly. DHS provided a template letter, which can be found on DHS’s website linked above, for facilities to provide to affected individuals on a voluntary basis. DHS plans to set up a call center for impacted individuals and will provide identity protection for impacted individuals, however neither are available at this time.

Where do we go from here?

As reiterated during the Chemical Security Seminars in July, the threat to chemical facilities did not expire with the CFATS program authorization. During the Seminar, Secretary Alejandro Mayorkas and others shared about recent incidents where nefarious actors attempted to or were successful in obtaining access to dangerous chemicals. Facilities previously regulated under the CFATS program are encouraged to maintain their security posture to the extent possible and continue to take advantage of other DHS resources, including the ChemLock program. At this time, there is no way for facilities to screen employees against the TSDB as previously required by Risk Based Performance Standard (RBSP) 12.4 of the CFATS program.

With the Presidential election looming on the horizon, it seems unlikely that CFATS will be reauthorized in the near future, but anything can happen. Stay tuned for more, and feel free to reach out to Lizzie Smith at lsmith@all4inc.com with any questions.

West Virginia Department of Environmental Protection to Update WV NPDES Multi-Sector General Permit No. WV0111457

The West Virginia Department of Environmental Protection (WVDEP) has proposed to update the West Virginia/National Pollutant Discharge Elimination System (WV NPDES) Multi-Sector Stormwater General Permit (MSGP) for Industrial Activities (Permit No. WV0111457) which will expire on September 12, 2024. The draft 2024 MSGP is available for review on the WVDEP MSGP Webpage; the public comment period has ended. The planned effective date for the 2024 MSGP is not yet known.

Proposed Changes to Permit No. WV0111457

Substantial changes to the existing permit include but are not limited to:

• Updating the total recoverable lead benchmark for Sector G-1
• Creating additional requirements for the stormwater pollution prevention plan (SWPPP) figure map
• Updating the reapplication timeline from 180 days to 30 days following reissuance of the general permit
• Standardizing the quarterly sampling period and reporting deadline to be the same for each permittee
• Stipulating new facilities applying for coverage under the 2024 MSGP to comply with the antidegradation requirements.

What Actions do you Need to Take?

If your facility has coverage under this permit, expect to submit a notice of intent (NOI) and an updated SWPPP via the Electronic Submission System (ESS) within 30 days of the effective date of the 2024 MSGP to ensure the facility’s stormwater coverage is uninterrupted. Facilities with a No Exposure Certification must resubmit within 30 days of the effective date of the 2024 MSGP as well.

If your facility is a new facility seeking coverage under this permit, prepare to comply with antidegradation requirements including public notice, implementing best management practices (BMPs) prior to stormwater discharge, and submitting a SWPPP and Groundwater Protection Plan with your NOI.

If you have any questions regarding the proposed updates to the 2020 MSGP or what your next steps should be to prepare for the adoption of the 2024 MSGP, please reach out to me at jfantone@all4inc.com. ALL4 will continue to track updates to the 2024 MSGP, and we are here to help with any of the above actions your facility may need to take, along with any other aspects of stormwater compliance your facility may need.

Annual U.S. Greenhouse Gas Inventory

The Annual U.S. Greenhouse Gas (GHG) Inventory is a report that provides information on the sources and sinks of greenhouse gases in the U.S. The newest version was published on April 11, 2024 and compiles the GHG data from 1990 to 2022. The report is produced by the U.S. Environmental Protection Agency (U.S. EPA) and is used to inform policy decisions related to climate change.

What are the Key Findings from the Report?

The report includes emissions of carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), and fluorinated gases, with CO₂ accounting for the majority of U.S. greenhouse gas emissions. The report found that in 2022, greenhouse gas emissions in the United States were 6.34 billion metric tons of carbon dioxide equivalent (CO₂e), a slight increase from 2021 but a 3% decrease since 1990. Net CO₂e emissions have decreased by 15% from 2005 levels, which is consistent with the overall downward trend. The sectors with the largest decrease are the energy and waste sectors. Figure 1 shows the U.S. GHG emissions trends from 1990 to 2022 (U.S. EPA Document No. 430-R-24-004).

Figure 1
U.S. Greenhouse Gas Emissions and Sinks by Gas.

The 2022 data shows that carbon dioxide emissions from natural gas combustion have been increasing over the years while coal and petroleum usage have been slowly decreasing. Coal combustion had an increase in 2021 but is trending down again with a 6% decrease from 2021. The rise in natural gas combustion emissions was seen across all sectors except in the U.S. Territories sector. The trends in CO₂e emissions from fossil fuel combustion are subject to various long-term and short-term factors. Yearly fluctuations are often tied to changes in economic conditions, energy prices, weather, and the availability of non-fossil fuel alternatives. For instance, a year marked by high consumption, low fuel prices, and extreme weather events is likely to see increased fossil fuel use compared to a year with an economic downturn, high fuel prices, and mild weather. The trends from 2021 to 2022 show the continuing effects of the COVID-19 pandemic, which initially decreased fossil fuel demand in 2020 but led to an increase as activities resumed in 2022. However, more permanent shifts in energy usage patterns are influenced by broader societal trends such as population growth, the number of vehicles, house sizes, and the efficiency of energy-consuming equipment. Social planning and consumer behavior, like choosing to walk, bike, or telecommute, also play a significant role in these long-term changes.

The Land Use, Land-Use Change, and Forestry (LULUCF) sector offset 13.5% of total emissions in 2022. These activities include reducing deforestation and ecosystem restoration, which help in carbon sequestration. An important driver in improving the LULUCF sector is forest management practices.

The report also provides information on the sources and sinks of specific greenhouse gases, with transportation, electricity generation, and industrial activities being the three largest sources. Transportation accounts for the largest portion of GHG emissions at 28.4% with the lowest sector being residential emissions. The full trends for GHG emissions by sector are shown in Figure 2 (U.S. EPA Document No. 430-R-24-004). The transportation and electric power industry sectors saw a dip in emissions in 2020 due to the COVID-19 pandemic and 2021 and 2022 emissions reflect the economic rebound.

Figure 2
U.S. Greenhouse Gas Emissions Allocated to Economic Sectors

Since 1990, the United States has seen a marginal decline in greenhouse gas emissions, averaging a 0.01% annual decrease. GHG emissions peaked in 2005 and have been consistently declining since. The rate of decline in emissions has been slightly slower compared to the growth in total energy usage, fossil fuel consumption, as well as the overall growth of the nation’s gross domestic product (GDP) and population, shown in Figure 3 (U.S. EPA Document No. 430-R-24-004). This trend is due to the increase in energy efficiency technologies and GHG emissions reduction strategies.

Figure 3
U.S. Greenhouse Gas Emissions Per Capita and GDP

What is the Direction for the Future?

The U.S. GHG Inventory offers valuable information for decision-makers as they deal with climate change. The report highlights the need to reduce GHG emissions from the transportation and industrial sectors, which are the largest contributors to GHG emissions. There is potential for more carbon regulations to reduce the GHG emissions associated with these sectors. It also demonstrates that economic growth and GHG emissions reductions can be achieved simultaneously.

Strategies the U.S. can promote to reduce GHG emissions include transitioning to clean energy sources, promoting energy efficiency, and supporting the development of low-emissions transportation options. Recently these strategies have been promoted through the Inflation Reduction Act (IRA) and the Advanced Energy Project Credit (48C) Program.

Conclusions

The Annual U.S. Greenhouse Gas Inventory reveals the sectors that are the largest sources of GHG emissions in the country. Overall, GHG emissions increased from 1990 to 2000 then plateaued until the decline starting in 2008. There has been a decrease in GHG since the peak in 2005 but it is not at the necessary rate to mitigate the largest impact of climate change, according to the Intergovernmental Panel on Climate Change (IPCC). Although there has been success in lowering emissions, there is still a lot of effort needed to meet the economy-wide net-zero by 2050 objective set by the IPCC.

If you have questions about how to interpret this report or would like to discuss how your company contributes to GHG emissions, we would be glad to talk with you. Please contact Louise Shaffer at lshaffer@all4inc.com or your ALL4 Project Manager to discuss how we can help develop or improve your corporate GHG inventory or develop a strategy to reduce your GHG footprint.

Updates On Michigan’s Integrated Report

In March 2024, the Michigan Department of Environment, Great Lakes, and Energy (EGLE) Water Resources Division (WRD) published the newest version of Michigan’s Integrated Report, “Water Quality and Pollution Control in Michigan 2024” (Integrated Report or Report). The Report is prepared every two years pursuant to the requirements of the Clean Water Act (CWA) to provide water quality protection and monitoring information to the United States Environmental Protection Agency (U.S. EPA), Congress, and state and local agencies.

What does the update include?

The most important part of the publication is the identification of impaired water segments statewide, referred to by the regulatory citation mandating it, the 303(d)/305(b) List. The Report also provides information on the drainage basin codes for the state and public comments received and responded to before publication. The Report provides the updates made to the 303(d)/305(b) lists since the previous publication, specifically the 303(d) portion of the list identifies all the state waterbodies that currently have or were identified as requiring a total maximum daily load (TMDL), and the 305(b) portion of the list provides an assessment of the quality of surface waters. The full Integrated Report can be found on the EGLE website.

What effect does the update have on the industry?

When a surface water is identified as impaired, EGLE develops a TMDL for the pollutant(s) identified with the intention to restore the waterbody to attain the designated use and maintain the water quality standards. Once U.S. EPA approves the TMDL, the waterbody is removed from the 303(d) list, but its quality status continues to be tracked in the 305(b) list. Discharges to impaired waterbodies identified on the 303(d)/305(b) List impose more stringent requirements on industrial dischargers.

The updates affect facilities that discharge either stormwater or industrial wastewater discharges into waterbodies that have had their status or TMDL changed. If your facility discharges to an impaired waterbody, additional compliance activities may be automatically imposed based on your current permit(s). These activities could include, but are not limited to, adding increased monitoring, structural or non-structural best management practices (BMPs), or imposing a Pollutant Minimization Plan (PMP) that the facility would have to operate under. A list of potentially applicable BMPs can be found on the EGLE website and U.S. EPA’s website.

What should you do next?

Ensuring compliance with the new updates will require an understanding of your facility stormwater and wastewater discharges. Permitting requirements for stormwater and wastewater may be triggered or removed if your facility discharges into a waterbody that was added or removed from the 303(d)/305(b) lists. Therefore, review the 303(d)/305(b) lists to see if any waterbodies near your facility have recently been added or removed. If your local waterbodies have not been added to the Lists, no further actions are needed. However, if the opposite is true, additional actions may be required to reach compliance.

ALL4 is here to help evaluate how the updated Report will affect your operations and will help facilitate your company in meeting environmental compliance. If there are any questions about the updated Report and how your Facility may be affected, please reach out to me at bhsieh@all4inc.com or your ALL4 project manager for more information.

U.S. EPA Finalizes Benzene Fenceline Monitoring for Coke Oven Facilities

In August of 2023, ALL4 covered the proposed monitoring amendments to the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Coke Ovens: Pushing, Quenching, and Battery Stacks (PQBS) and Coke Oven Batteries (COB) at 40 CFR Part 63, Subparts CCCCC and L. The United States Environmental Protection Agency (U.S. EPA) published the final amendments to the NESHAP for Coke Ovens in the Federal Register on July 5, 2024. The revisions are a result of the Clean Air Act (CAA) mandated risk and technology review (RTR) for PQBS and technology review for COB and address previously unregulated hazardous air pollutants (HAPs) and HAP emissions sources. As part of the revisions, U.S. EPA is requiring certain Coke Oven Facilities to measure fugitive benzene emissions at their fenceline (where fenceline is equivalent to the perimeter) using passive samplers.

According to U.S. EPA, benzene is ever-present at coke oven facilities, accounts for about 70 percent of emissions of all volatile compounds and is a surrogate for organic HAPs from fugitive sources at these facilities. U.S. EPA is requiring a minimum number of passive samplers collecting two-week time-integrated samples continuously, following EPA Method 325. These samples would be analyzed for benzene, background corrected for each sampling event, assessed against an annual action level, with results reported to U.S. EPA on a quarterly basis and made available to the public.

PASSIVE SAMPLING

Passive sampling involves using small inert-coated metal tubes filled with an adsorbent and special cap that allows ambient air to diffuse onto the sorbent at a fixed rate, thereby retaining the compound of interest. Following a two-week sampling period, the tubes are collected and sent to a laboratory for analysis, with new tubes installed to maintain continuous sampling.

The number of required samplers is based on the size of the COB plant per EPA Method 325, with a minimum of 12 equally spaced samplers. The final rule requires deployment of the first sampling period no later than July 7, 2025 for existing facilities and no later than July 7, 2025 or upon start up (whichever is later) for new facilities. In the final rule, U.S. EPA is requiring only coke oven facilities with production processes that have by-product chemical recovery (ByP) to conduct fenceline monitoring. U.S. EPA removed the monitoring requirement at coke oven facilities with heat and nonrecovery (HNR) because these facilities have sufficient monitoring of visible emissions to ensure minimal fugitive emissions and the operation of coke ovens at HNR facilities is under negative pressure which prevents excess fugitive emissions.

BENZENE CONCENTRATION ACTION LEVEL

U.S. EPA originally proposed an action level of 3 micrograms per cubic meter (µg/m³) benzene based on modeled fenceline concentrations from emissions inventories associated with data for 2016 and 2022 facility-wide risk assessments; however, U.S. EPA increased the action level in the final rule to 7 µg/m³ as a result of comments received regarding the unique layout of coke oven sources and the elongated shape of facility fencelines, which do not allow a sufficient receptor grid to accurately estimate the maximum ambient concentrations. This action level is intended to reflect fugitive emissions sources only and exclude background concentrations. A facility would exceed this action level when the highest of the rolling annual average fenceline concentrations (corrected for background) is greater than 7 µg/m³. Additionally, the final rule allows for reduced sampling if every sample at a monitoring site is below 0.7 µg/m³ for two years (i.e., 52 consecutive sampling events).

To account for background, each facility will determine a delta concentration (Δc), calculated as the lowest benzene sample value subtracted from the highest benzene sample value for each two-week period. This approach is intended to subtract out any estimated contribution from background emissions that do not originate from the facility. U.S. EPA is also allowing for near-field source correction which requires coke oven facilities to implement a site-specific monitoring plan (SSMP) that documents how the facility will calculate reductions in monitored benzene concentrations from non-coke oven contributions by utilizing additional benzene monitoring and on-site meteorological data. In the case of additional monitoring for near-field source correction, the proposed monitoring could be more frequent passive sampling or near-real time monitoring. If near-real time monitoring is employed, the proposed technology must consistently achieve results for benzene at or below 0.7 µg/m³.

If the rolling annual average exceeds the concentration action level, the coke oven facility must initiate a root cause analysis within five days of calculating the rolling annual average to determine the primary and contributing causes of the exceedance. This root cause analysis must be completed within 45 days of initiation, followed by the corrective action plan to reduce emissions. The coke oven facility would not be deemed out of compliance with the proposed concentration action level if appropriate corrective action measures are taken.

DATA REPORTING

To report and submit results, coke oven facilities will be required to calculate a rolling annual average within 30 days of completion of each sampling episode and report the data for each sampler within 45 days of the end of each quarterly period using U.S. EPA’s public electronic reporting and data retrieval portal. This submittal will include the individual results from each sampler, coordinates of all sampler locations, biweekly 12-month rolling average concentration values, and notes for each value (e.g., background corrections used, if the value was under detection, or an outlier that was removed from the data set). Reporting will start after the first full year of data is collected (i.e., within 45 days from the completion of the 26th biweekly sampling event).

WHAT DOES THIS MEAN FOR MY FACILITY?

Following collection of a year’s worth of data to generate a rolling annual average, your facility will need to demonstrate compliance with the action level within three years following the effective date of the final NESHAP rule (July 15, 2027).

U.S. EPA estimates costs for fenceline monitoring to be $107,000 per year; however, these costs do not include effort associated with development of a monitoring plan, data assessment, quarterly reporting, root cause and corrective action, the possibility of an SSMP, or other quality assurance activities.

HOW CAN ALL4 HELP?

As your facility advances closer toward implementation of benzene fenceline monitoring, do not hesitate to ask for assistance. ALL4 would be glad to discuss any of the following:

• Conducting a pilot study to determine if your facility has excessive benzene emissions ahead of the required monitoring.
• Developing an air monitoring plan.
• Developing an SSMP for near-field source correction.
• Installation and placement of passive samplers to meet the proposed rule.
• Installation and placement of additional benzene sampling methodologies for near-field source correction.
• Collecting, processing, and submitting samples.
• Training for facility personnel.
• Creation of tools to record bi-weekly data and calculate annual rolling averages.
• Analyzing raw data to subtract out background concentrations as appropriate.
• Installation and maintaining meteorological equipment for on-site ambient meteorological data (for SSMP source correction).
• Conducting quality assurance audits to verify the collection of representative samples.
• Preparing electronic reports for U.S. EPA.
• Preparing root-cause analysis and corrective action plans to submit to U.S. EPA if the facility exceeds concentration action level.

We can also help with strategy around implementation of the many other requirements U.S. EPA has added to the NESHAP (e.g., new standards, electronic reporting, and removal of startup/shutdown/malfunction exemptions). For more information on Benzene Fenceline Monitoring please contact Dustin Snare at dsnare@all4inc.com / 610.422.1126 or Kyle Hunt at khunt@all4inc.com / 512.705.0123.

U.S. EPA Releases EJSCREEN v.2.3

On July 9, 2024, The United States Environmental Protection Agency (U.S. EPA) released an update of its environmental justice (EJ) screening tool, EJSCREEN version 2.3. The revised tool adds new map layers and two new EJ Indexes, along with reports that are more customizable.

New EJ Indexes

The main new features of the tool are two new Environmental Burden Indicators, renamed from the “Pollution and Sources” category in the tool in the previous versions (which was somewhat misleading, as the categories did not contain any source-specific data). The two new Environmental Burden Indicators are nitrogen dioxide (NO₂), which uses National Aeronautics and Space Administration (NASA) satellite data to show average annual NO₂ levels, and drinking water non-compliance, which uses modeled drinking water system boundaries and overlays Safe Drinking Water Act violations of water systems. Like the existing Environmental Burden Indicators, these are then weighted against the demographic index of each census block to generate a corresponding EJ Index.

The addition of the water non-compliance indicator continues a trend in EJ where we have seen more of a focus on the availability of clean water to communities as opposed to a more air quality-focus that we’d seen in the first year or two of the administration’s EJ agenda. Meanwhile, the use of annual NO₂ data as an Environmental Burden Indicator seems a bit puzzling: There hasn’t been a non-attainment area for NO₂ in the U.S. in over 25 years. A review of the tool shows that a census block with an EJ Index for NO₂ in the 95^th-100^th percentile in the US, which would typically classify the census block as potentially being an EJ community, had an annual NO₂ concentration of 16 parts per billion (ppb), or only about 30% of the National Ambient Air Quality Standard for NO₂, which would not normally raise air quality concerns. While NO₂ concentrations are a concern in urban areas, using annual data does not seem like a good indicator on the potential for short term NO₂ concentrations that could raise a health concern.

Meanwhile, two of the EJ Indexes that were present in previous versions and often were closely examined, Air Toxic Cancer Risk and Air Toxics Respiratory Hazard Index, were moved to the Places tab to better represent the raw data, leaving the total number of EJ Indexes at 13 as in the previous versions.

New Maps

In additional to converting the Air Toxic Cancer Risk and Air Toxics Respiratory Hazard Index map layers, there are four additional new map layers available in EJSCREEN 2.3:

• Extreme Heat: Shows an assessment of potential for extreme heat events by census block using an average number of days over 90 degrees Fahrenheit for the period 2019-2023.
• Private Drinking Wells: Private wells provide about 20% of the population with their drinking water and because they are not regulated by federal regulations, they are often not tested and subject to having potential contamination go undiscovered. This layer shows private domestic drinking water wells by count, density, and percent population served.
• Drinking Water Area Boundaries: Shows community water system (CWS) boundaries serving over 99% of all public water customers.
• Environmental Justice Grants: Shows EJ grants and resources provided through the U.S. EPA’s Office of Environmental Justice and External Civil Rights Next Generation Grants System including:
  • Environmental Justice Small Grants Program
  • Environmental Justice Collaborative Problem-Solving Cooperative Agreement
  • Environmental Justice Government to Government Program
  • Environmental Justice Thriving Communities Technical Assistance Centers Program
  • Environmental Justice Thriving Communities Grantmaking Program
  • Inflation Reduction Act Community Change Grants Program

Other Changes

Finally, the calculation for the Supplemental Demographic Index was changed to (% Low Life Expectancy + % Low Income + % Disability + % Limited English Speaking + % Less Than High School Education”)/5.

This revised calculation adds disabilities data as one of the five categories averaged while dropping unemployment data from the calculation. This change drops the percentage of the population that are unemployed from the demographic calculations entirely.

The revised tool also contains an updated interface designed to help users navigate the tool more easily, with learning resources, new popup information, and the ability to click a “Contact Us” link to ask questions or provide feedback. The U.S. EPA Office of Environmental Justice and External Civil Rights will be holding training seminars, with the next occurring on July 24^th, and will offer office hours at noon on August 21^st.

Summary

All in all, the revisions provide the mapping of several new datasets to the tool, but don’t change the purpose or capabilities of the tool very much. When using the tool, it is important to remember that it is for screening purposes: a census block that has EJ Indexes in the highest percentiles (80^th+) does not mean that the census block is an EJ community but does indicate that further review of the community and its overall environmental burden is warranted. It is also important to remember that many state agencies have their own screening tools that are most likely to have definitive ties to what the state considers an overburdened or EJ community and potential additional requirements when it comes to permit actions in those areas.

If you have concerns about the potential implications of these updates or need help parsing through how they might impact your facilities, feel free to contact your ALL4 Project Manager or Rich Hamel. We’ll continue to monitor EJ guidance from the administration and states and the tools available to evaluate EJ concerns as they develop. 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.

Strategic Sustainability with Double Materiality in Corporate Reporting

Introduction 

The European Union’s Corporate Sustainability Reporting Directive (CSRD) is an important regulation that is revolutionizing how companies disclose sustainability information. Aiming to elevate sustainability reporting to the same level of rigor as financial reporting, the CSRD mandates the disclosure of specific environmental, social, and governance (ESG) topics from large companies and listed small and medium-sized enterprises (SMEs) operating within the European Union (EU), as well as for third-country companies with significant operations in the EU. Even if your company has previously reported nonfinancial data, the CSRD will likely require a significant expansion in the nature and extent of your disclosures. This blog builds on an earlier ALL4 blog on Double Materiality to provide updated information on the topic, including insights and pitfalls of the methodology. 

Understanding Double Materiality 

A cornerstone of the CSRD is the concept of “double materiality.” This broadens the traditional view of materiality, which focuses solely on financial impacts, to include a company’s impact on stakeholders and society. For CSRD compliance, companies must assess materiality from two perspectives: 

• Financial Materiality: This “outside-in” view examines how sustainability matters might pose material risks or opportunities affecting a company’s financial performance in the short, medium, and long term. 

• Impact Materiality: This “inside-out” perspective evaluates the short, medium, and long-term impacts on people and the environment linked to a company’s operations and value chain. These impacts can be positive or negative. 

Material risks and opportunities often arise from a company’s dependencies on natural, human, and social resources. Therefore, an effective materiality assessment requires viewing these factors from both financial and impact perspectives. Double materiality is a concept that acknowledges the interconnectedness of a company’s financial performance with its impacts on society and the environment. It requires companies to disclose how their operations and activities affect society and the environment, as well as how sustainability issues affect them. 

Timelines and Urgency 

The deadline for complying with the European Union’s (EU) CSRD is fast-approaching. Companies in the United States (U.S.) that are listed on EU exchanges or large EU subsidiaries of U.S. companies must report on 2025 data starting in January 2026. These companies need to be ready to start collecting relevant data on January 1, 2025. Non-EU based companies with revenues exceeding €150m annually for the past two years and meeting certain other requirements will report on 2028 data and file in 2029. While this may seem distant, the comprehensive nature of the required double-materiality assessment and relevant data means that companies should start preparing now. Early preparation is crucial and starting the process early allows companies to engage multiple internal departments, such as legal, audit, finance, and operations, fostering a shared understanding of the CSRD’s strategic implications. 

Steps for Conducting a Double Materiality Assessment 

1. Identifying Material Sustainability Impacts, Risks, and Opportunities: To comply with the CSRD, your company must conduct a thorough double materiality assessment. This involves identifying and evaluating both financial and impact materiality for various sustainability matters. 

2. Refining a List of Material Matters: Start by reviewing which ESG topics are most pertinent to your company. This involves: 

• Reviewing any previously conducted materiality assessments. 

• Digging into the European Sustainability Reporting Standard (ESRS). The ESRS is the reporting standard used to meet the CSRD reporting requirements. ESRS includes 12 topical standards covering environment, social, governance, general requirements and general disclosures. Sector specific guidance is under development by the European Financial Reporting Advisory Group (EFRAG). 

• Consulting with executives, the head of investor relations, and internal finance and risk teams. 

• Assessing potential ESG impacts on supply chain partners. 

• Consulting industry-specific materiality guidance from the International Financial Reporting Standards (IFRS) Foundation and the International Sustainability Standards Board (ISSB), which now has oversight over the Sustainability Accounting Standards Board (SASB) Standards. 

• Engaging a wide array of stakeholders, including customers, employees, shareholders, regulators, civil society, community organizations, and suppliers, is also crucial. This helps compile a comprehensive list of material matters and their relative importance from both financial and impact perspectives. 

3. Scoring the Matters: Companies must score the shortlisted matters on both financial and impact materiality. This involves analyzing the scale, scope, irremediability, and likelihood of the company’s impacts on each issue, as well as assessing the actual or potential effects of each issue on the company’s financial performance. It’s important to note that while companies currently rely on qualitative scales, there is an expectation to quantify these material risks and opportunities over time.  

4. Developing a Double Materiality Matrix: Once all ESG matters have been scored, they need to be mapped against each other to determine what is and isn’t a material issue, informed by a set materiality threshold. The matrix should guide business strategy and sustainability reporting, with matters deemed material triggering mandatory disclosure under the CSRD. Companies have the leeway to develop their own thresholds for both impact and financial materiality, but it is essential to engage audit functions to ensure these thresholds are validated internally. 

Common Pitfalls and Key Insights 

A common mistake companies make is rushing the materiality assessment without adequately documenting the process. This oversight can lead to compliance risks and challenges in report preparation. Thorough documentation can save time and resources in the long run. Another pitfall is analyzing sustainability matters only at the topic level without defining impacts, risks, and opportunities, and where they occur in the value chain. It is crucial to consider subtopics and map specific components of the value chain to improve the accuracy of the materiality assessment. Many companies have not fully integrated sustainability matters into their strategic planning, reporting frameworks, and risk management, so the materiality assessment can take longer for these companies. Using tools such as scoring mechanisms, web scraping, interviews, workshops, and peer benchmarking can help evaluate impacts and the level of risk and opportunity. 

Running the materiality assessment in a siloed manner can lead to incomplete reporting outputs and long-term issues. Engaging both enterprise and subsidiary legal entity stakeholders ensures that critical components of the value chain are included, and that the assessment is aligned across the organization. Robust documentation of the materiality assessment is critical, including policies, procedures, tools, key assumptions, and governance levels used to identify and apply applicable criteria. Involving your assurance practitioner early in the process can help align expectations and address potential concerns before the start of the assurance engagement. 

Benefits of Embracing Double Materiality 

Embracing double materiality yields numerous benefits, from meeting sustainability-conscious consumer demands and attracting responsible investments to spurring innovation and ensuring compliance. Here’s a breakdown of how double materiality shapes the future of businesses: 

• Holistic Risk Management: Companies can proactively address environmental and social risks, enhancing overall resilience. 

• Elevated Sustainability Significance: Demonstrating a commitment to sustainable practices builds trust and loyalty among stakeholders. 

• Stringent Regulation Compliance: Integrating double materiality helps companies stay ahead of global regulations. 

• Catalyzing Innovation and Relevance: Spurring eco-friendly innovation aligns products and processes with environmental and social impact. 

• Resilient Supply Chains: Assessing suppliers’ sustainability challenges helps forge robust, responsible, and efficient supply chains. 

In an ever-evolving business landscape, sustainability is paramount for achieving success. Companies that integrate both financial and impact materiality into their decision-making processes can effectively manage risks, build trust among stakeholders, and pave the way for sustainable growth. Embracing double materiality is not only ethically crucial but also a prudent approach to thriving in a world demanding sustainable practices. The time to start is now, ensuring that your company is prepared to meet the CSRD requirements and lead in sustainable corporate governance. 

ALL4 Can Help Your Company Navigate Double Materiality and CSRD Compliance 

As the deadline approaches for companies to conduct double materiality assessments and comply with the EU’s CSRD, staying ahead of evolving climate regulations and expectations is crucial. Not sure if you are obligated under CSRD? The second installment of our CSRD coverage will detail who is obligated and the timeline of the reporting requirements. If you want to explore your obligations right away, please reach out to ALL4. ALL4 provides the expertise and resources your company needs to navigate these complexities. We specialize in guiding businesses through the intricate landscape of sustainability reporting, ensuring compliance with federal guidelines, and enhancing overall resilience. 

With ALL4’s support, your company can build a sustainable, resilient future and seamlessly navigate the complexities of CSRD compliance. ALL4 can assist your business in the following ways: 

• Materiality Assessments: We help you identify key environmental, social, and governance impacts to prioritize your sustainability efforts, ensuring you meet CSRD requirements with a thorough and strategic approach. 

• GHG Accounting Procedures: Our experts have more than 15 years of experience developing Scope 1, 2, and 3 GHG inventories following the GHG Protocol and other procedures to ensure accurate GHG reporting and providing third-party verification services, critical for meeting CSRD standards. 

• ESG Reporting Strategies: Enhance transparency and accountability through comprehensive ESG reporting. We provide tailored strategies that align with CSRD mandates, ensuring your disclosures are both compliant and impactful. 

• Carbon Reduction Targets: Establish and pursue net-zero goals to mitigate your carbon footprint. Our team helps you set realistic and ambitious carbon reduction targets, supporting long-term sustainability and regulatory compliance. 

• Climate Initiatives: Develop and implement comprehensive strategies for climate adaptation and resilience. We ensure your initiatives are robust and aligned with both current and future regulatory requirements. 

• Supply Chain Risk Assessments: Identify exposure to disruption across your facilities, suppliers, customers, and resources. Utilizing ALL4’s Risk Visualization tool, we clarify hotspots and plan for resilience, ensuring your supply chain is secure and compliant. 

• Physical and Transition Risk Assessments: Align your assessments with the Task Force on Climate-related Financial Disclosures (TCFD) methodology. Our experts ensure you are prepared for both physical and transition risks, critical for comprehensive CSRD compliance. 

For inquiries on whether your company is required to report via the CSRD, or about ALL4’s services, or questions regarding how our climate adaptation strategies can enhance your operations, please contact one of ALL4’s ESG and Sustainability Practice leaders: Practice Director, Connie Prostko-Bell, at cprostko-bell@all4inc.com; Technical Director, Daryl Whitt, P.E., C.E.M., at dwhitt@all4inc.com; or Managing Consultant, James Giannantonio, PMP, LEED AP, at jgiannantonio@all4inc.com.