South Coast Air Quality Management District to Update Rule 1173

South Coast Air Quality Management District (South Coast AQMD) in the last few months has held four working sessions to discuss proposed updates to Rule 1173 “Control of Volatile Organic Compound Leaks and Releases from Components at Petroleum Facilities and Chemical Plants.” If you work at a refinery, chemical plant, lubrication oil and re-grease refinery, marine terminal, oil and gas production field, natural gas processing field, or pipeline transfer station, these changes to Rule 1173 might affect your business operations.  

South Coast AQMD is committed to improving leak detection and Volatile Organic Compound (VOC) emissions per the Wilmington, Carson, West Long Beach (WCWLB) Community Emissions Reduction Plan (CERP) and the 2022 Air Quality Management Plan (AQMP) Control Measure FUG-01: Improved Leak Detection and Repair. The proposed Rule 1173 updates include requiring the use of enhanced leak detection technology at greater frequencies, establishing lower leak standards, and introducing contingency measures (CM) for applicable ozone National Ambient Air Quality Standards (NAAQS). 

The use of enhanced leak detection technology is part of the proposed self-inspection requirements update to Rule 1173, which includes a change from audio-visual inspections to Audio-Visual Olfactory (AVO) inspection methods and the addition of Optical Gas Imaging (OGI) inspections. Oil and gas production fields and pipeline transfer stations will need to conduct weekly AVO inspections of all accessible pumps, compressors, and atmospheric process relief devices (PRDs). Facilities to which this rule applies will need to conduct AVO inspections at least once per operating shift with less than 12 hours between inspections.    

Additionally, all facilities would conduct monthly OGI inspections of each component, unless a component will be out of service for more than 14 calendar days. These inspections would be done by someone who has completed a manufacturer’s certification or training program or an equivalent California Air Resources Board (CARB) training for an OGI device. Currently, OGI cameras on the market have an estimated lifetime of 10 years and a retail price of around $120,000. SCAQMD estimates an operating and maintenance cost of almost $5,000 per year per camera and a labor cost of about $400 per operating day. An inspection exemption for unsafe weather conditions is also proposed, allowing facilities to postpone inspections until conditions improve. 

The other major changes proposed involve leak and violation standards and repair requirements. The proposed rule lowers the violation standard for light liquid, gas, and vapor components from 50,000 ppm to 10,000 ppm. Reduced component leak standards are also proposed, lowering the standard for compressors and pumps (light liquid) from 500 ppm to 400 ppm and for valves, fittings, and other devices from 500 ppm to 100 ppm.  

Additionally, options for reporting and repairing leaks are proposed to be implemented in this rule. The proposal would require detected visible leaks and visible vapors from an accessible component to be eliminated no later than one calendar day after the detection. Visible leaks and visible vapors that are detected from an inaccessible component would be notified electronically to the Executive Officer before the end of the operating shift (less than 12 hours) and would be eliminated within 14 calendar days of the detection. Also, if a leak exceeds the leak standard for that component, the owner or operator would, within one day of detection, either use an OGI device to show no visible vapors are emitted or use an appropriate analyzer (Method 21) to confirm the leak is below the violation standards. In addition, they would complete repairs to meet the leak standards within 14 days of detection. 

The updates to this rule also incorporate ozone contingency measures (CM) if the United States Environmental Protection Agency (U.S. EPA) determines the South Coast Air Basin has not made reasonable further progress or attained the 2008 or 2015 ozone NAAQS by the required date. CM would go into effect in 60-day sequential stages after the determination is made public. Stage 1 CM, effective 60 days from the determination, would reduce leak standards for light liquid compressors or pumps to 300 ppm from the proposed 400 ppm. Stage 2 CM, effective after 120 days, would require the facility to conduct OGI inspections every two weeks, and Stage 3 CM, effective after 180 days, would reduce the leak standard for valves, fittings, and other devices to 50 ppm from 100 ppm. 

As with many of South Coast AQMD’s recent rule updates, the proposed Rule 1173 changes incorporate increases to record retention requirements from two to five years, as well as electronic records submission requirements. 

The proposed rule is scheduled to go before the South Coast AQMD Governing Board in a public hearing on October 4, 2024. The proposed changes may go into effect as early as October 1, 2025. 

ALL4 can assist you with evaluating the impacts of the proposed Rule 1173 changes on your facility, filing public comments, or even creating compliance calendars to help you stay on top of all your facility’s compliance obligations. If you have any questions regarding the proposed updates to Rule 1173 or ALL4’s strategy and compliance services, please reach out to your contact at ALL4 or Bruce Armbruster at barmbruster@all4inc.com or 909.477.7103. 

Good Neighbor Plan Update

The U.S. Environmental Protection Agency (U.S. EPA) published the “Good Neighbor Plan” (GNP), also known as the Ozone Transport Federal Implementation Plan (FIP), in the Federal Register on June 5, 2023. The purpose of the rule is to establish restrictions on nitrogen oxides (NOx) emissions from electric utility and industrial combustion sources in states where U.S. EPA has determined that emissions from that state impact a downwind state’s ability to achieve the 2015 ozone National Ambient Air Quality Standard (NAAQS). The rule applies to states where U.S. EPA disapproved their State Implementation Plan (SIP) submitted to fulfil the “good neighbor” clause in the Clean Air Act. In 2023, 12 states (Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia) were awarded stays of U.S. EPA’s SIP disapprovals, pending the outcome of litigation, so the GNP did not go into effect in those states. In January 2024, U.S. EPA proposed to add five additional states (Arizona, Iowa, Kansas, New Mexico, and Tennessee) to the GNP. In March 2024, U.S. EPA denied petitions for reconsideration and associated requests for an administrative stay of the rule.

Several parties have challenged the GNP in the D.C. Circuit Court. Because the D.C. Circuit Court did not agree to stay the rule, an emergency stay was requested from the Supreme Court of the United States (SCOTUS). The petitioners argued that the GNP was no longer valid because it relied upon the participation of all the states included in the 2023 final rule, and that the SIP disapprovals and the GNP itself have various flaws. On June 27, 2024, SCOTUS issued a stay of the GNP pending the outcome of various petitions.

Although many thought the SCOTUS decision stayed the 2023 GNP for everyone, U.S. EPA’s interpretation of the decision was that it stayed the rule only for facilities that were covered by the parties involved in the litigation (e.g., located in a state that litigated, a member of an association that litigated, or part of a company that litigated¹) . U.S. EPA issued a memo on August 5, 2024, that laid out their interpretation of the current situation and their near-term plans related to the GNP.

First, to avoid the “administrative complexity” of determining the remaining sources subject to the GNP, they will issue a rule to implement an administrative stay of the GNP for all sources. That rule was sent to the White House Office of Management and Budget (OMB) for review on August 30, 2024, and has not yet been published.

Second, U.S. EPA asked the D.C. Circuit Court for a remand of the GNP rulemaking record to respond to the SCOTUS criticism that they failed to explain how the GNP could function effectively with only a fraction of the covered states participating. That remand was granted on September 12, 2024, and did not vacate the rule. U.S. EPA is now attempting to justify how the GNP should move forward even if it is only in effect in some states, as they believe it is needed to meet the schedule for achieving the 2015 ozone NAAQS in downwind states.

Third, in light of their pending administrative stay of the GNP, U.S. EPA indicated that they will not enforce procedural deadlines prior to substantive compliance dates. It is assumed that U.S. EPA would extend procedural and compliance deadlines under a future rulemaking after the legal situation plays out.

Fourth, U.S. EPA anticipates taking rulemaking action to clarify ongoing regulatory requirements and good neighbor obligations for states (e.g., ensure continued compliance with previous Cross State Air Pollution Rule [CSAPR] requirements). Meanwhile, the final rule to add five additional states to the GNP is also at OMB for review.

U.S. EPA’s position is that the GNP is not invalid simply because it has been “temporarily suspended” in some states. Industry’s position is that the SCOTUS decision should have resulted in a remand with vacatur and that there are many flaws that U.S. EPA must address with the rule itself. States are asking U.S. EPA to implement NOx controls on non-traditional sources like combustion in/on buildings and the transportation sector. With the remand of the record, litigation in the D.C. Circuit itself is on hold while other cases continue in regional appeals courts over issues related to U.S. EPA’s SIP denials. There is also a request pending for SCOTUS to decide whether the SIP disapprovals should only be heard in the D.C. Circuit because they are national and not local matters.

Questions about the GNP? Contact Amy Marshall at amarshall@all4inc.com.

[1] See Appendix to https://www.epa.gov/system/files/documents/2024-08/gnp-stay-policy-memo-08-05-2024-signed.pdf

Distilling Industry Operations: Navigating OSHA Regulations for Safety and Compliance

The art of distilling spirits has deep roots, blending tradition with modern technology. However, as the industry evolves, so too does the responsibility to maintain safe operations. Distilleries, like all manufacturing environments, must navigate a complex landscape of safety regulations to ensure not only quality products but also the well-being of their workers. In the United States, Occupational Safety and Health Administration (OSHA) sets the standards that distilleries must adhere to for safe working conditions.

In this post, we’ll explore how distillery operations intersect with OSHA regulations and highlight some key areas of focus for safety compliance.

Hazard Communication: A Recipe for Safe Operations

Distilleries rely heavily on chemical processes, particularly during fermentation and distillation. Ethanol, the primary product of distillation, is a highly flammable substance, requiring rigorous control and handling protocols. OSHA’s Hazard Communication Standard (HCS), also known as HazCom, mandates that all hazardous chemicals in the workplace be properly labeled and that employees receive training on how to handle them safely.

In distilleries, this means that workers need to understand:

• The dangers of ethanol vapor, which can ignite at low temperatures.
• Proper storage and labeling of hazardous materials, including cleaning agents and other solvents.
• Procedures for safely handling high-proof alcohol during bottling and transfer processes.

Process Safety Management: Preventing Explosive Hazards

The distillation process itself can be hazardous. High-pressure steam, open flames, and flammable liquids create the potential for fires and explosions. OSHA’s Process Safety Management (PSM) standard is designed to prevent catastrophic events involving highly hazardous chemicals, and while ethanol is below the threshold for mandatory PSM implementation, many distilleries opt for similar measures to ensure safe operations.

Key PSM-related activities in distilleries include:

• Conducting regular inspections of equipment, especially boilers and stills.
• Implementing strict maintenance schedules to avoid failures that could lead to accidents.
• Training employees on emergency shutdown procedures.

Machine Guarding: Protecting the Workforce

Distilleries utilize a variety of machinery, from large fermenting vats to bottling lines. OSHA’s Machine Guarding Standard ensures that workers are protected from injuries related to moving parts, such as rotating blades, conveyors, and mixers. In distilleries, machines must be equipped with appropriate safety guards to prevent entanglement, lacerations, and other injuries.

Some best practices include:

• Installing guards on bottling line machinery to protect workers from pinch points.
• Using proper ventilation systems to manage fumes and prevent the build-up of combustible gases.
• Conducting regular audits of machine safety features to ensure compliance.

Lockout/Tagout: Safeguarding During Maintenance

Maintenance is a critical component of any distillery’s operations, but it also poses risks. OSHA’s Lockout/Tagout (LOTO) Standard is designed to protect employees from the unexpected startup of machinery or the release of hazardous energy during maintenance or repair work. In a distillery, this is particularly important for equipment such as fermentation tanks, stills, and bottling lines.

LOTO procedures in distilleries typically involve:

• Shutting down and de-energizing equipment before any repair work begins.
• Applying locks and tags to prevent accidental startup.
• Training employees on how to properly implement LOTO procedures.

Confined Spaces: Safe Work in Tight Areas

Distilleries often contain confined spaces such as fermentation tanks, grain silos, or even large boilers, which pose unique risks. OSHA’s Confined Space Entry Standard requires that employers evaluate the potential hazards in confined spaces, including oxygen deficiency, toxic gases, or the potential for engulfment.

For distilleries, confined space safety includes:

• Testing the atmosphere within tanks or silos before entry to ensure safe oxygen levels.
• Using proper ventilation equipment to remove harmful vapors.
• Ensuring workers are properly trained and have emergency rescue procedures in place.

Personal Protective Equipment (PPE): A Shield Against Hazards

Distillery workers face various physical and chemical hazards. OSHA’s Personal Protective Equipment (PPE) Standards require employers to provide necessary gear to protect employees from exposure to hazardous substances, noise, and moving machinery.

In distilleries, PPE might include:

• Flame-resistant clothing (FRC) to protect against flash fires.
• Gloves and safety goggles for handling chemicals.
• Ear protection to guard against the high noise levels in bottling operations or near boilers.
• Dust Hazard Analysis: Managing Combustible Grain Dust

Grain milling and storage are essential steps in distillery operations, but they come with the significant risk of combustible dust explosions. OSHA’s Combustible Dust National Emphasis Program requires facilities that handle fine particulate materials, such as grain, to conduct a Dust Hazard Analysis (DHA). In distilleries, grain dust generated during milling, storage, and transfer can accumulate in confined areas and ignite, leading to fires or explosions.

To mitigate this risk, distilleries should:

• Regularly clean and inspect equipment to prevent dust buildup, particularly around mills, conveyors, and storage bins.
• Ensure proper ventilation systems are in place to capture dust at its source.
• Conduct DHAs to identify potential ignition sources and implement controls, such as explosion-proof electrical systems and grounding to prevent static discharge.

Electrical Safety: Powering Distillery Operations Safely

Distilleries rely on a wide range of electrical systems to power equipment, control processes, and ensure efficient operations. However, the combination of flammable materials like ethanol and grain dust with electrical systems can create significant safety hazards, including fires, explosions, and electrical shocks. OSHA’s Electrical Safety Standards are designed to mitigate these risks by enforcing strict guidelines for equipment installation, maintenance, and worker training.

Key aspects of electrical safety in distilleries include:

• Explosion-Proof Equipment
• Grounding and Bonding
• Routine Inspections and Maintenance
• Employee Training

Fall Protection: Safeguarding from Heights

In distilleries, working at heights is common, whether on catwalks, ladders, or elevated platforms for maintenance and inspections. OSHA’s Fall Protection Standard mandates the use of fall protection systems to prevent falls that could result in serious injury or death. OSHA also has requirements related to all Walking Working Surfaces that employees may encounter. This could include the use of ladders, stairways, platforms, and loading dock areas.

Key considerations for fall protection in distilleries include:

• Ensuring proper installation and use of guardrails, safety nets, or personal fall arrest systems where employees are at risk of falling.
• Regularly inspecting fall protection equipment for wear and compliance.
• Training employees on safe practices and the correct use of fall protection systems.

Emergency Preparedness: Ready for the Unexpected

Emergencies in distilleries can range from chemical spills to fires and natural disasters. OSHA’s Emergency Action Plan (EAP) Standard requires employers to develop and implement plans to address such scenarios. OSHA also addresses other emergency related items such as exit routes, fire prevention, medical emergencies, and fire protection.

Key elements of an effective emergency preparedness plan include:

• Developing and practicing emergency evacuation routes and procedures.
• Providing training on emergency response, including fire drills and chemical spill response.
• Ensuring that emergency contact information and resources are readily accessible to all employees.

Conclusion

Running a distillery requires more than mastering the craft of creating exceptional spirits. Just like a finely distilled spirit, safety in the workplace comes from careful attention to detail. It involves maintaining a safe workplace that complies with OSHA’s extensive regulations. By staying informed and compliant with OSHA regulations, distilleries can maintain a safe environment that not only safeguards workers but also contributes to a successful and sustainable business. With the right safety programs in place, distilleries can focus on what they do best—crafting quality spirits—while ensuring their workforce remains protected.

ALL4 can assist organizations with conducting internal audits, training, and by reviewing current policies and procedures. The health and safety professionals at ALL4 have extensive expertise spanning various workplace safety and health concerns. Serving a diverse array of industries, including specialty manufacturing, automotive, food and beverage, pharmaceuticals, energy, pulp and paper, and federal defense agencies, ALL4 tailors its services to meet the unique needs of each client. The ALL4 team is dedicated to developing site-specific strategies that prioritize accident and injury reduction and risk management.

For further information or to get ALL4 engaged to assist your organization, contact Brian Godfrey at 864.520.4663 or bgodfrey@all4inc.com.

OSHA Hazard Communication Standard, 29 CFR 1910.1200

OSHA Process Safety Management, 29 CFR 1910.119

OSHA Machine Guarding, 29 CFR 1910.212

OSHA Lockout/Tagout Standard, 29 CFR 1910.147

OSHA Confined Space Entry, 29 CFR 1910.146

OSHA Personal Protective Equipment, 29 CFR 1910 Subpart I

OSHA Combustible Dust National Emphasis Program, CPL 03-00-008

OSHA Electrical Safety, 29 CFR 1910 Subpart S

OSHA Fall Protection, 29 CFR 1910.28

OSHA Emergency Action Plans, 29 CFR 1910.38

Electronic Reporting for Engines is here!

On August 30, 2024, the U.S. Environmental Protection Agency (U.S. EPA) finalized amendments to the following regulations applicable to Reciprocating Internal Combustion Engines (RICE):

40 CFR Part 60 [Standards of Performance for New Stationary Sources, also referred to as New Source Performance Standards (NSPS)]:

• Subpart IIII (NSPS for Stationary Compression Ignition Internal Combustion Engines)
• Subpart JJJJ (NSPS for Stationary Spark Ignition Internal Combustion Engines)

40 CFR Part 63 [National Emission Standards for Hazardous Air Pollutants (NESHAP)]:

• Subpart ZZZZ (NESHAP for Stationary Reciprocating Internal Combustion Engines)

This rulemaking is mostly geared toward establishing electronic reporting requirements for RICE for various routine compliance reporting but does include several clarifications and language updates facilities should be aware of. The final revisions are generally consistent with what was proposed by U.S. EPA on June 26, 2023. See ALL4’s blog on the 2023 proposed revisions for more details.

Electronic Reporting

Facilities with engines subject to NSPS Subparts IIII or JJJJ, or NESHAP Subpart ZZZZ, must now submit the following reports electronically through U.S. EPA’s Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI):

• Certain initial notifications of compliance,
• Performance test reports,
• Notification of Compliance Status (NOCS), and
• Annual and semiannual compliance reports.

Performance test results must be submitted in the format generated using the Electronic Reporting Tool (ERT), if the test method is supported. If not, performance test results must be submitted in portable document format (PDF) using the attachment module of the ERT. For annual and semiannual compliance reports, facilities must use the appropriate spreadsheet template to submit information to CEDRI.

U.S. EPA asked for comments on the proposed reporting templates with the 2023 proposal. Based on comments received, the final reporting templates include some additional clarifications and are available in the docket. Interestingly, the Department of Defense (DoD) and the U.S. Navy provided comments to U.S. EPA with concern that the electronic reporting templates, which require specific latitude and longitude coordinates, could disclose the location of certain engines that would compromise national security. U.S. EPA acknowledged the potential risks, and now facilities can submit a national security exemption and not provide coordinates.

Carbon Monoxide (CO) standards for Fire Pump Engines

In the 2023 proposal, U.S. EPA recognized that Table 4 to Subpart IIII of Part 60—Emission Standards for Stationary Fire Pump Engines has been frequently misinterpreted based on how the table appears in the CFR. As proposed, Table 4 to Subpart IIII has been updated to show that the same CO standard applies for all model years. Facilities should review any fire pumps they operate to ensure that any applicable CO standard was correctly captured in permitting.

Clarifications to Annual Oil Changes and Inspections

40 CFR Part 63, Subpart ZZZZ requires routine oil changes and spark plug, air cleaner, and hose/belt inspections for several different types of RICE. Generally, the requirements are “Change oil and filter (or perform inspection) every X,XXX hours or annually, whichever comes first.” As we’ve seen with other rules, there is often confusion on how to interpret whether “annual” means once per calendar year (e.g., January 2022 and December 2023 [23 months apart]) or within 365 days.

In the proposed revisions, U.S EPA sought comments on replacing “annual” with “every 12 months” for oil changes and inspections. U.S EPA received comments pointing out that “every 12 months” potentially results in owners and operators needing to complete oil changes in January 2025 and December 2025 (11 months apart). U.S. EPA acknowledged the practical issues with their proposed language, so the final language is “within 1 year + 30 days of the previous change (or inspection).” This is a similar solution to the industrial boiler annual tune-up requirements of 40 CFR Part 63, Subpart DDDDD (Boiler MACT), which must be conducted within 13 months of the previous tune-up for several types of boilers. It is important to note that the new Subpart ZZZZ language of “1 year + 30 days” is not always exactly equivalent to 13 months. Facilities should be mindful of the discrepancy if they are attempting to sync up annual engine maintenance and boiler tune-ups.

50-Hour Provision

In the proposed rule, U.S. EPA requested comments on the NSPS and NESHAP provisions specifying that emergency engines can operate for up to 50 hours per year to supply power for local system reliability. U.S. EPA received numerous comments both for and against removing the 50-hour provisions from various industries, municipalities, states, and government organizations. However, U.S. EPA is not finalizing any changes to the 50-hour provisions with this rulemaking and state they are still considering what action, if any, to take.

What now?

The electronic reporting requirements for all three rules are effective 180 days from the final rule. Mark your calendars – any submittals due February 26, 2025, or later must be submitted electronically. For any newly required electronic annual or semiannual reporting, the compliance date is February 26, 2025, or 1 year from the date that the report template is made available on CEDRI, whichever is later. All other clarification and language updates are effective immediately, as of August 30, 2024.

The RICE regulations are notorious for their complexity and apply to a wide range of industries that operate stationary engines. Facilities should review the reporting requirements that apply to their RICE and develop a plan for developing and submitting upcoming reports electronically. ALL4 is here to help! Reach out to me at ghowell@all4inc.com or your ALL4 Project Manager for more information.

Mid-Year Regulatory Update for Per- and Polyfluoroalkyl Substances (PFAS)

We are now just a few weeks away from the November 2024 Presidential Elections, the Supreme Court of the United States (SCOTUS) is in recess, the Unified Spring Agenda is out, and many new rules have been issued and court cases decided since our 2024 Look Ahead was published in January. Let’s recap where we currently stand on some of the key Polyfluoroalkyl Substances (PFAS) related regulations.

Drinking Water

In April 2024, the United States Environmental Protection Agency (U.S. EPA) finalized the National Primary Drinking Water Regulation (NPDWR) for six PFAS. The NPDWR establishes maximum contaminant levels (MCLs), which are federally enforceable standards, and maximum contaminant level goals (MCLGs), which are health-based, non-enforceable levels. The final MCLs and MCLGs are shown in the table below.

This rule applies to all public water systems (PWS), including small community water systems (CTW) and non-transient, non-community water systems (NTNCWS). To comply with the PFAS NPDWR, PWS must do the following:

• Conduct initial and ongoing compliance monitoring for these PFAS. Initial monitoring must be completed within three years (by 2027).
• If an MCL is exceeded, implement solutions to reduce these PFAS in the drinking water. PWS must implement these solutions within five years (by 2029).
• Beginning in five years (in 2029), PWS that have exceeded an MCL must take action to comply with the PFAS MCLs and notify the public of the violation(s).

This rule was important because it marked the first federally enforceable drinking water standard for PFAS and is estimated to reduce PFAS exposure for approximately 100 million people. Additionally, this rule was important for state regulators, as it gives states the basis and authority for establishment of their own standards. These drinking water standards are also being cited or referenced in other media as well – such as in federal and state cleanup programs, which may establish remediation standards (e.g., groundwater) equivalent to the drinking water MCLs. So even if you are not a PWS subject to this rule, you may begin to see trickle down effects into other regulations that do apply to you.

Industrial Wastewater & Stormwater

We are starting to see state led rules around PFAS in the National Pollutant Discharge Elimination System (NPDES) permitting process as well as stormwater general permits. Irrespective of specific regulations, many states have also begun introducing PFAS monitoring requirements into individual permits for facilities in certain industrial categories that are suspected to use or manufacture PFAS, or facilities that discharge to publicly owned treatment works (POTWs). If you have upcoming permitting actions or renewals, be sure to check the required application contents for changes and new PFAS sampling requirements, as this information is not always announced.

While the list below is not exhaustive, it contains a summary of example industrial wastewater and stormwater permitting requirements.

• Michigan NPDES: The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has added questions around PFAS to their NPDES Industrial/Commercial Application Form for permitting direct discharges of wastewater. This update came as a result of the December 5, 2022 memorandum issued by U.S. EPA to state-authorized permitting authorities which recommended that these agencies leverage the NPDES program to restrict PFAS discharges. EGLE responded to this memorandum by publishing an interoffice communication on March 14, 2023, which addressed how EGLE’s Water Resources Division (WRD) would develop and implement permitting strategies. This change affects both new and reissued permit applications. PFAS compliance measures that will now be required may include, but are not limited to, the following:
  • Source identification and process evaluation of process flows
  • Additional analytical testing parameters for PFAS
  • Submission of reports and action plans for how the facility is addressing PFAS at the facility
  • Product substitution
  • Installation of treatment systems
• Pennsylvania NPDES: The Pennsylvania Department of Environmental Protection (PADEP) updated its NPDES Individual Industrial Wastewater permit application process to now include PFAS as required pollutants to be sampled. Individual wastewater permit applications are now required to include analysis for PFOA, PFOS, PFBS, and HFPO-DA in the “Pollutant Group 1” testing. Because these PFAS were added to “Pollutant Group 1,” this means that all industrial categories are required to complete the testing. PFAS testing is not restricted to specific industrial sectors. Additionally, Module 1 of the individual permit application, which is used to obtain Industrial Stormwater coverage, now includes a question regarding aqueous film forming foam (AFFF) usage. If AFFF is used at a facility, then the PFAS analysis is also required in stormwater.
• Colorado General Stormwater: The Colorado Department of Public Health & Environment (CDPHE) issued revised stormwater General Permit COR900000, which now includes PFAS monitoring requirements for certain industrial sectors, as well as PFAS storage and release requirements relating to AFFF and other potential PFAS-containing materials. Sampling is required for all PFAS analytes covered under U.S. EPA Method 1633 or the most recent Department of Defense (DoD) Quality Systems Manual (QSM). However, the permit currently only requires PFAS monitoring and does not contain numerical standards.
• Proposed Federal NPDES: U.S. EPA is proposing to modify 40 CFR Part 122 to update requirements for NPDES permit applications to address PFAS. The current list of pollutants included in the applications does not include PFAS and has not been updated since 1987. The final rule is anticipated by December 2026. In the meantime, U.S. EPA is relying on state agencies to begin issuing permits with PFAS requirements in accordance with the December 5, 2022, memorandum cited above under the Michigan NPDES update.

In addition to permitting changes, U.S. EPA has proposed a rulemaking under 40 CFR Part 414 to revise the existing Effluent Limitations Guidelines (ELGs) for the Organic Chemicals, Plastics, and Synthetic Fibers point source category. The Notice of Proposed Rulemaking (NPRM) is expected in September 2024. This proposal was announced under ELG Program Plan 15 (Plan 15). Among other items, Plan 15 also included the proposal to revise the Metal Finishing and Electroplating point source category requirements to include PFAS.

The establishment of water quality standards is the next big to-do on U.S. EPA’s list, as this will be a necessary step to establish numerical effluent limits for facilities. While drinking water MCLs are a useful comparison tool in other programs such as cleanup standards, they are not appropriate for use as industrial effluent limitations and industry-specific data is necessary.

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

In April 2024, U.S. EPA released the pre-publication notice of the final rulemaking to designate PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This rule became effective on July 8, 2024. While the rule specifically designates PFOA and PFOS as hazardous substances, it also includes their ”salts and structural isomers,” which based on the U.S. EPA CompTox database, may include an additional 98 PFAS chemicals. Entities that will be potentially affected by this rulemaking include:

• PFOA and/or PFOS manufacturers (including importers and importers of articles)
• PFOA and PFOS processors
• Manufacturers of products containing PFOA or PFOS
• Downstream product manufacturers and users of PFOA and PFOS products
• Waste management and wastewater treatment facilities

While U.S. EPA mentioned these broad categories regarding potential remediation or CERCLA investigations, other facilities may be impacted through water intake and industrial water discharge if PFAS concentrations are above the reportable quantity (RQ).

This rulemaking is also expected to pave the way for the addition of other PFAS to the list of hazardous substances. U.S. EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public input on the future designation of additional PFAS as hazardous substances. This rulemaking was originally scheduled to be proposed in April 2025, however the deadline is now listed as “to be determined.”

In general, this CERCLA designation was met with heavy industry pushback and concerns regarding ultimate liability and cleanup responsibility. On August 21, 2024, U.S. EPA published five petitions that were filed relating to this rulemaking. The petitions request that the United States Court of Appeals for the District of Columbia Circuit revisit and review this final rulemaking.

There is speculation that these petitions are coming as a direct result of the Supreme Court’s decision to overturn the Chevron deference. As of now the CERCLA designations are in effect; however it will be important to closely monitor this rule.

Toxic Substances Control Act (TSCA)

In October 2023, U.S. EPA finalized a new one-time reporting rule for PFAS under Toxic Substances Control Act (TSCA)  Section 8(a)(7). The rule requires any entity that has manufactured or imported PFAS or PFAS-containing articles to report detailed information on those PFAS to U.S. EPA for each year since January 1, 2011. Of note, this rule includes a structural definition of PFAS, which based on the U.S. EPA CompTox database is estimated to include ~13,000 unique PFAS chemicals. Importantly, this is a new one-time reporting requirement separate from the typical four-year TSCA Chemical Data Reporting (CDR) cycle.

The original reporting window was scheduled to open from November 12, 2024 through May 8, 2025; however on September 4, 2024, U.S. EPA announced a direct final rule to delay the reporting period to now begin on July 11, 2025 and last through January 22, 2026. The delay is due to U.S. EPA budgetary constraints that impacted the TSCA program this year. In March 2024, the fiscal year budget was reduced by $5 million. This new reporting rule is reliant upon a new Central Data Exchange (CDX)-based reporting module, which has yet to be finalized due to the budget cuts. U.S. EPA is hopeful that the new software reporting application will be fully functional by July 2025.

Facilities should take advantage of this compliance date extension to ensure a thorough evaluation of operations and supply chain and to gather all the required information. Typical exemptions seen under other reporting reviews, such as PFAS contained in articles or low concentrations, do not apply to this one-time reporting rule. This rule is intended to cast a wide net as the information may be used for future risk evaluations or other purposes at U.S. EPA, and therefore, facilities outside of the obvious PFAS manufacturers may be pulled in to reporting. At a minimum, facilities should plan to prepare detailed documentation that supports their assessment and rationale for why or why not reporting is triggered.

Resource Conservation and Recovery Act (RCRA)

In February 2024, U.S. EPA published a proposed rule to list certain PFAS as “hazardous constituents” under Resource Conservation and Recovery Act (RCRA). The rule proposes the addition of the following nine PFAS, including their salts and structural isomers, to the list of hazardous constituents under 40 CFR Part 261, Appendix VIII:

• PFOA
• PFOS
• PFBS
• HFPO–DA
• PFNA
• PFHxS
• perfluorodecanoic acid (PFDA)
• perfluorohexanoic acid (PFHxA)
• perfluorobutanoic acid (PFBA)

It’s important to note that the designation as a hazardous constituent does not equate to the designation as a hazardous waste, but it is a critical step towards a potential future hazardous waste listing. However, the designation of a hazardous constituent allows for corrective actions under RCRA to address releases. If finalized, this rule would impact how facilities manage solid waste that contains these hazardous constituents, as those impacted facilities would be looking to minimize future corrective actions. It could also add difficulty to securing waste vendors willing to accept certain solid waste.

This proposed rule was open for comment until April 8, 2024; however, it was not on the Spring Unified Agenda for further rulemaking. Given the other uphill battles and opposition that U.S. EPA is currently facing regarding PFAS regulation, the finalization of this RCRA rulemaking appears to have taken a back seat.

Toxic Release Inventory (TRI)

In December 2019, the Fiscal Year 2020 National Defense Authorization Act (NDAA) was signed into law, which included the automatic addition of certain PFAS to the list of Toxic Release Inventory (TRI) chemicals under NDAA Section 7321. The NDAA also put into place the following regulatory activities that automatically trigger the addition of other PFAS to the list:

• Final Toxicity Value: The date on which the Administrator finalizes a toxicity value for the PFAS or class of PFAS
• Significant New Use Rule: The date on which the Administrator makes a covered determination for the PFAS or class of PFAS
• Addition to Existing Significant New Use Rule: The date on which the PFAS or class of PFAS is added to a list of substances covered by a covered determination
• Addition as an Active Chemical Substance: The date on which the PFAS or class of PFAS to which a covered determination applies is:
  • Added to the list published under TSCA Section 8(b)(1) and designated as an active chemical substance under TSCA Section 8(b)(5)(A); or
  • Designated as an active chemical substance under TSCA Section 8(b)(5)(B) on the list published under TSCA Section 8(b)(1).

In accordance with these provisions, U.S. EPA has updated the TRI list to include additional PFAS each year since the initial listing beginning in 2020. A summary of the number of reportable PFAS covered under each reporting year is provided below.

*U.S. EPA is currently in the process of incorporating additional PFAS to this list through a proposed rulemaking which is expected to be finalized by April 2025.

The other major update to TRI that occurred is that for reporting year 2024 (reports due July 1, 2025), among other things, the de minimis exemption no longer applies to PFAS as these chemicals were designated as “chemicals of special concern.” Because of the continuous evolution of PFAS regulation under TRI, it is important for facilities to diligently track new supplier notifications, safety data sheets (SDS), and the list of applicable PFAS under TRI to ensure that reports are complete, accurate, and reflect the latest regulatory requirements.

The world of PFAS continues to expand and the requirements are impacting more and more facilities. Even if you are not in an industry involved in the manufacturing of PFAS products, expect there to still be a crossover into your operations. If you are unsure of the next step to take, you may want to start by conducting a review of your materials on site to determine if any could be a potential source of PFAS. ALL4 can help – please contact me at knuschke@all4inc.com for assistance or questions.

Mastering EHS Audits: A Comprehensive Guide to Their Importance and Maximizing Your Benefits

An Environmental Health & Safety (EHS) audit is a crucial evaluation used to assess an organization’s policies, processes, and systems to confirm that they adhere to both federal and state regulatory standards. The purpose of an EHS audit is to identify regulatory gaps within the organization and create a plan of action to comply with the necessary regulatory requirements and improve business practices. An EHS audit may also be useful for continuous improvement audits under the International Organization for Standardization (ISO).

Why are Audits important?

Conducting EHS audits is essential for businesses to identify and address potential hazards and improve safety processes. Audits ensure compliance with regulations; help protect employees and customers, and can lead to significant cost savings by avoiding fines and penalties. Forming a dedicated audit team, whether internal or external, is crucial for effectively evaluating and improving workplace safety and environmental practices.

The audit process does the following:

• Identifies hazards and inefficiencies, preventing costly legal issues, accidents, and insurance claims.
• Supports operational efficiency, improves reputation with stakeholders, and promotes continuous improvement by highlighting areas for policy and procedural enhancements.
• Prioritizes safety by boosting employee well-being and satisfaction and reinforcing the organization’s commitment to a safe and responsible workplace.

What to expect during an audit?

An EHS audit starts with a comprehensive review of both federal and state regulatory requirements that are potentially relevant to the organization. Auditors develop a detailed checklist based on these regulations and then conduct a thorough inspection of the organization’s facilities and practices. During an audit, compliance with each potentially applicable regulation is evaluated, and areas of non-compliance are identified.

The audit process typically involves the following key steps:

• Pre-Audit Preparation: This includes setting the audit objectives (i.e., which regulatory categories are to be considered), understanding facility operations, gathering relevant documentation, and identifying regulations potentially applicable to the facility.
• Site Inspection: The auditor conducts a physical inspection of the facility, examining operations, equipment, work practices, and protocols. Photographs and notes are taken. It is helpful if someone knowledgeable in facility operations accompanies the auditor.
• Employee Interviews: Facility personnel are interviewed to help the auditor gain insight. Any relevant documentation that has not already been provided is requested.
• Identification of Non-Compliance: The facility’s policies, procedures, and records are reviewed to ensure that they align with regulatory requirements. The auditor notes any discrepancies between actual practices and regulatory standards, highlighting areas that require corrective action.
• Report Generation: A detailed report is compiled, summarizing findings of non-compliance and providing recommendations for improvement.

When should you conduct an audit?

EHS audits should be conducted regularly to ensure compliance with regulatory requirements and internal standards. It is crucial to schedule these audits when there are significant changes within the facility, such as the introduction of new processes or equipment, as these can impact EHS performance. Additionally, these audits should be conducted after any major incidents to identify root causes and prevent future occurrences. Regular audits will help identify potential risks before they become issues, ensuring that the company not only complies with current regulations but also fosters a culture of continuous improvement and safety. Furthermore, EHS audits should be scheduled in the event of a transition of EHS staff to ensure that new personnel are adequately informed of existing practices and to maintain continuity in compliance efforts. Lastly, conducting audits before regulatory deadlines or during strategic planning phases can provide a comprehensive review of the facility’s EHS practices and support long-term sustainability goals.

How can ALL4 help?

ALL4 partners with our clients to provide not only auditing, but also strategies around frequency, content, and corrective actions to maximize impacts and improvements from the audit process. ALL4 employs many experienced EHS auditors that can work with you to establish or enhance your organization’s audit programs.

ALL4 can conduct an EHS audit for your organization! If you would like to learn more or would like to discuss your audit program, contact me at lblasius@all4inc.com or (770) 999-0270 or Adam Czaplinski at aczaplinski@all4inc.com or (720) 288-5141 or one of our project managers for more information.

U.S. EPA Finalizes Changes to Rules on Reclassification of Major Sources

The Clean Air Act (CAA) defines a major source of hazardous air pollutant (HAP) emissions as one that has the potential to emit (PTE) 10 tons per year (tpy) or more of any single HAP or 25 tpy or more of any combination of HAPs. Major sources of HAPs are subject to Maximum Achievable Control Technology (MACT) standards in 40 CFR Part 63 under the National Emission Standards for Hazardous Air Pollutants (NESHAP). In a 1995 memo (i.e., The Seitz Memo), the United States Environmental Protection Agency (U.S. EPA) established a policy to prohibit major HAP sources from reducing their HAP PTE to reclassify as area sources and thereby avoid coverage under a 40 CFR Part 63 MACT standard after the first substantive compliance date of that standard. This policy was known as “Once In, Always In” (OIAI) and was implemented to eliminate “backsliding” and to ensure that the maximum achievable emissions reductions that Congress had mandated for major sources would be achieved.  A 2018 U.S. EPA memo reversed that policy and was followed by a 2020 rulemaking that amended Part 63 to allow reclassification of a major source of HAP to an area source. Opponents of the rescission of OIAI policy have claimed that a facility with HAP emissions much less than the major source thresholds under the applicable MACT standards could increase its emissions to just under the major source thresholds if it were to reclassify and avoid coverage under MACT standards.

U.S. EPA reviewed the 2020 rulemaking and proposed changes in September 2023. Essentially, U.S. EPA proposed to continue to allow major HAP sources to reclassify as area sources, with the stipulation that they continue to comply with MACT or equivalent control requirements and maintain their HAP emissions levels with certain “safeguards” in their permits.  The final rule revisions, published in the Federal Register on September 10, 2024, do not address all of the issues brought forward in the proposal. The final rule still allows major sources to reclassify to area source status but requires that those sources remain subject to a subset of MACT standards, as described below.

Section 112(c)(6) of the CAA directs U.S. EPA to subject sources of the following seven persistent, bioaccumulative HAP to regulations such that no less than 90 percent of the aggregate emissions of each HAP are subject to MACT standards: alkylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans, and 2,3,7,8-tetrachlorodibenzo-p-dioxin. U.S. EPA has promulgated standards sufficient to meet the 90 percent requirement and published a completion notice. U.S. EPA has interpreted this directive to mean that it cannot allow sources subject to the MACT standards that serve to control emissions of these seven HAPs to escape coverage by these rules, even if they reclassify. Therefore, after September 10, 2024, sources that reclassify will still be subject to the following standards, pursuant to revised 40 CFR 63.1(c)(6)(iii):

• Subparts F through I (the Hazardous Organic NESHAP)
• Subpart L (NESHAP for Coke Oven Batteries)
• Subpart R (NESHAP for Gasoline Distribution Facilities)
• Subpart X (NESHAP for Secondary Lead Smelting)
• Subpart CC (Refinery MACT)
• Subpart GG (NESHAP for Aerospace Manufacturing and Rework)
• Subpart II (NESHAP for Shipbuilding and Ship Repair)
• Subpart JJ (NESHAP for Wood Furniture Manufacturing)
• Subpart KK (NESHAP for Printing and Publishing)
• Subpart LL (NESHAP for Primary Aluminum)
• Subpart MM (NESHAP for Chemical Recovery Combustion Sources at Pulp Mills)
• Subpart EEE (NESHAP for Hazardous Waste Combustors)
• Subpart HHH (NESHAP for Natural Gas Transmission and Storage)
• Subpart JJJ (NESHAP for Group IV Polymers and Resins)
• Subpart LLL (NESHAP for Portland Cement Manufacturing)
• Subpart RRR (NESHAP for Secondary Aluminum Production)
• Subpart UUU (NESHAP for Petroleum Refineries)
• Subpart FFFF (Miscellaneous Organic NESHAP)
• Subpart JJJJ (NESHAP for Paper and Other Web Coating)
• Subpart MMMM (NESHAP for Surface Coating of Miscellaneous Metal Parts and Products)
• Subpart PPPP (NESHAP for Surface Coating of Plastic Parts and Products)
• Subpart ZZZZ (NESHAP for Stationary Engines)
• Subpart CCCCC (NESHAP for Coke Ovens: Pushing, Quenching, and Battery Stacks)
• Subpart DDDDD (Boiler MACT)
• Subpart FFFFF (NESHAP for Iron and Steel Manufacturing)
• Subpart IIIII (NESHAP for Mercury Cell Chlor-Alkali Plants)
• Subpart LLLLL (NESHAP for Asphalt Processing and Roofing)
• Subpart YYYYY (NESHAP for area source Electric Arc Steelmaking Facilities)
• Subpart JJJJJJ (NESHAP for area source Boilers)
• Subpart EEEEEEE (NESHAP for area source Gold Mines)

In other words, after the effective date of the final rule (September 10, 2024), a facility cannot avoid applicability of the standards listed above by reclassifying from major to area source status (or even from area to major source status, since some area source standards are listed.) This limitation could affect the operation of your facility post-reclassification and will mean that MACT monitoring, recordkeeping, testing, and reporting requirements will continue to apply to your reclassified facility. Good news: the list does not include the NESHAP for Stationary Combustion Turbines.

More good news: If you already reclassified from major to area source status, you are not affected by these changes and no action is required. In the 2023 proposal, U.S. EPA sought comment on whether the effective date of reclassification was the date of change in potential emissions, the date of notification of reclassification to U.S. EPA, or the date of receipt of a revised air permit. The final rule does not address that question.

The final rule is likely to spur litigation, but it stands for now. Contact Amy Marshall at 984-777-3073 with any questions or if you would like assistance reclassifying your facility and understanding what requirements will apply after reclassification.

Updates on the Lowered PM2.5 NAAQS

It’s been four months since the lowered annual particulate matter less than 2.5 microns (PM_2.5) National Ambient Air Quality Standard (NAAQS) became effective on May 6, 2024, and seven months since my last 4TR article on the topic. I thought it was a good time to provide an update on what has transpired in the last four months and where regulators are in the process of meeting regulatory milestones related to implementing the lowered annual PM_2.5 NAAQS, which now sits at 9 micrograms per meter cubed (mg/m³).

On April 30, 2024, right before the lowered annual PM_2.5 NAAQS became effective, United States Environmental Protection Agency (U.S. EPA) released supplemental guidance that lowered the annual PM_2.5 Class II Significant Impact Level (SIL) from 0.2 mg/m³ to 0.13 mg/m³ and lowered the Class I SIL from 0.05 mg/m³ to 0.03 mg/m³. The reduction was not surprising because U.S. EPA utilized the same statistical approach that relied on quantifying a statistically significant deviation from the design value utilizing PM_2.5 measurements from the entire U.S. ambient monitoring network to establish the SIL. The analysis was updated from the original 2014-2016 dataset to a more recent 2020-2022 dataset and the more recent dataset is lower on average, both because of a general reduction of PM_2.5 emissions nationally in the intervening time period and the inclusion of 2020, which was impacted by the COVID pandemic, and therefore resulted in a lower calculated SIL. Keep in mind the SIL is established as part of guidance and not by regulation. Therefore, states and local jurisdictions are free to utilize the SIL or propose their own SIL threshold. Because the initial annual PM_2.5 SIL has been established there have now been three different annual SILs (0.3 mg/m³, 0.2 mg/m³, and 0.13 mg/m³) and ALL4 is aware of each of the three SIL values currently being utilized in a least one or more states across the U.S.

Another more recent update related to the PM_2.5 NAAQS was U.S. EPA’s posting the 2023 design values report on August 9, 2024. The 2023 design values report is a spreadsheet that contains the 2021-2023 design values for all monitoring stations in the U.S. and is the design value that states, and local jurisdictions are utilizing to make initial PM_2.5 NAAQS designation determinations which are due to U.S. EPA by February 7, 2025.

There was a delay in posting the 2023 PM_2.5 design values report (usually posted in June) because of a network data alignment of Teledyne T640 and T640X PM_2.5 measured concentrations.  Specifically, the Teledyne T640 and T640X had been identified in peer-reviewed literature to be reporting generally high bias relative to other Federal Reference Method (FRM) and Federal Equivalency Method (FEM) monitors, which lead to the correction of reported PM_2.5 concentrations utilizing the Teledyne monitor back to 2017. The Teledyne bias adjustment reduced measured PM_2.5 concentrations by 5-20%, depending on the site’s temperature and relative humidity conditions. For information on whether your area could be designated in attainment or nonattainment with the lowered annual PM_2.5 NAAQS, ALL4 has updated our PM_2.5 NAAQS Resource Webpage to include maps that utilized the finalized 2021-2023 design values. Keep in mind that the 2023 design values report doesn’t exclude exceptional events and that final U.S. EPA designation determinations will be based on the 2022-2024 design values.

As part of their initial designation recommendations to U.S. EPA, states can provide justification for removing exceptional events to help reduce the 2021-2023 design values to below the lowered annual PM_2.5 NAAQS in order to not have to establish PM_2.5 nonattainment areas. U.S. EPA will have to review and approve the exceptional event determinations as part of their approval of states’ designation determinations. Some states will provide a comment period for the public to provide feedback on their initial designation determinations. If your facility is located in an area that may be established as a PM_2.5 nonattainment area, this is your opportunity to provide comments and suggestions on the approach utilized to make the proposed designation determination.  You’ll get another opportunity to comment on designation determinations when U.S. EPA proposes their final designations (based on the states’ proposals) by February 7, 2026. If necessary, states can ask for a one-year extension to complete exceptional and atypical event determinations, which would push back any new potential PM_2.5 nonattainment areas until 2027. ALL4 is aware of at least one state, Pennsylvania, that has had this request approved by U.S. EPA.

Removal of exceptional event data can only be completed if it reduces the design value below an established NAAQS. For example, if the 2021-2023 annual PM_2.5 NAAQS design value is 8.9 mg/m³ then no reduction is allowed under U.S. EPA’s Exceptional Event guidance. This is important because design values are also utilized in NAAQS air quality modeling demonstrations.  However, on a case-by-case basis applicants can provide justification to remove atypical events when establishing a background concentration specifically for air quality modeling demonstrations.  Atypical events can be the same as those classified under U.S. EPA’s Exceptional Event guidance as well as more localized events that may not have the same scale as some events identified as exceptional. Some states (i.e., Iowa and Georgia) are developing background concentration databases for air quality modeling demonstrations that remove exceptional and atypical events in an effort to streamline the permitting process.

If you are located in an area that has the potential to be established as a PM_2.5 nonattainment area reach out to ALL4 to see how we can help in reviewing and commenting on states’ initial proposals to U.S. EPA. If your county does end up being designated as nonattainment, we have experience with PM_2.5 nonattainment new source review permitting, so we can help with that as well. In addition, if you’re considering a project in an attainment area that triggers PM_2.5 air quality modeling ALL4 can assist in evaluating options for refining emissions data and making physical changes that will result in modeling below the lowered annual PM_2.5 NAAQS. Please contact Dan Dix at ddix@all4inc.com or (610) 422-1118 for more information or for assistance with your project.

Draft Post-Construction Stormwater Manual

On January 28, 2023, the Pennsylvania Department of Environmental Protection (PADEP) released the draft Pennsylvania Post-Construction Stormwater Management (PCSM) Manual (Draft). The Draft is an update of the December 2006 Pennsylvania (PA) stormwater BMP Manual released in. This update provides new regulatory language and engineering updates to reflect the current understanding of stormwater management and physics, while still emphasizing the natural landscapes. The focus of the new PCSM Manual is the same as the 2006 Stormwater BMP Manual, which is, according to the Draft, “to protect, maintain, reclaim and restore water quality and the existing and designated uses of waters of the Commonwealth.”

What are the Changes?

The Draft includes changing the widely used term best management practice (BMP) with the new term stormwater control measure (SCM). The term BMP was found to be vague and poorly defined throughout the nation. The new term, SCM, provides new clarity on the subject matter of what the manual tries to target. SCM is defined, as “Physical, structural, and/or managerial measures that, when used singly or in combination, reduce the downstream quality and quantity impacts of stormwater.”

More significant revisions include new criteria for wetland protection, new SCMs, new methods of infiltration tests and other pre-development activities, and new guidance on structural designs regarding water flow. Some new SCMs include new managed release concept (MRC) SCMs which involve the slow release of stormwater to imitate shallow subsurface flow. This involves the MRCs ability to detain a 1.2 inch/2-hour event using vegetation, which is then filtered through a soil media or any other approved media, where the remaining runoff is slowly released. The Draft also provides new design capacity values and the new idea of including dual-path designs where surface flows are routed both overland (using swales, street sags, etc.) and underground (using sewer infrastructure).

The Draft recommends a new method of utilizing hydrological data. According to “PA DEP Stormwater Manual Updates,” climate projections for PA shows that the frequency of storm events with precipitation greater than three inches will increase 52 percent by 2050, and 93 percent by the year 2100. With models predicting continual increase of temperature, the intensity of rainfall events will also be expected to increase. Therefore, the Draft recommends that the 90^th percentile of rainfall intensity to be used with data from NOAA-14 or older intensity duration frequency curve sources that do not already consider climate change effects.

What effect does the update have on the industry?

Like the PA Stormwater BMP Manual, the PCSM Manual is non-regulatory in nature, and therefore has no direct effect on Facilities. However, the PCSM Manual provides guidance on staying in compliance with erosion and sediment control requirements found in 25 Pennsylvania Code (Pa Code) §102, including the PCSM requirements of §102.8. The PCSM Manual also provides additional SCMs as alternatives to the PA Stormwater BMP Manual, giving facilities greater flexibility in ways to comply with state regulations.

Despite greater flexibility, facilities may need to accommodate the PCSM Manual’s recommendation of using the 90^th percentile rainfall values. A 10-year, 24-hour storm’s rainfall using the 90^th percentile will increase the rainfall value from an average of 3.90 inches to the upper 90^th percentile value of 4.21 inches. Thus, the storage capacity required for an SCM may increase by approximately 7.36 percent.

It is important to note that the PCSM Manual will be constantly changing as newly available research and data provide more insight into how to manage stormwater. Regulatory language, although less frequent, may change depending on the policies set forth in the nation. Technical values such as land use factors or land cover-based stormwater pollutant concentration, may change with newer published data.

What should you do next?

Facilities that are affected by erosion and sediment control requirements promulgated in the PA Code should review the draft PCSM Manual. The manual may provide your facility with further flexibility in complying with state regulations.

ALL4 is here to assist you in evaluating how the changes to PCSM Manual will affect your operations. We can facilitate meeting environmental compliance with those changes. If there are any questions about the PCSM Manual and how your Facility may be affected, please reach out to me at bhsieh@all4inc.com or your ALL4 project manager for more information.

Chemical Sector Update – September 2024

The second half of 2024 is progressing with a steady drumbeat of air quality regulatory actions and court proceedings related to the chemical industry. This article discusses updates to relevant litigation, summarizes developments in recently promulgated air quality rules, and provides insight into air quality rules coming down the pipeline that are related to the chemical industry.

Ethylene Oxide Risk Value

On August 13, 2024, the United States Court of Appeals for the District of Columbia denied an industry petition for review of the United States Environmental Protection Agency’s (U.S. EPA’s) use of the 2016 Integrated Risk Information System (IRIS) value for ethylene oxide (EO) in the Agency’s 2020 residual risk and technology review (RTR) of the National Emission Standards for Hazardous Air Pollutants: Miscellaneous Organic Chemical Manufacturing (MON) (Huntsman v. EPA, No. 23-1045). In the MON RTR, U.S. EPA relied on the 2016 IRIS value to promulgate additional emissions control requirements after it determined that EO emissions from MON facilities posed an unacceptable cancer risk. Following promulgation, industry petitioners filed suit against the use of the IRIS value on the basis that U.S. EPA’s risk modeling was arbitrary and capricious, that the Agency had committed procedural errors in the rulemaking process, and that Section 7412(f) of the Clean Air Act (CAA) is an unconstitutional delegation of authority. The Court denied all three claims, setting up the potential of an appeal to the Supreme Court. In the interim, U.S. EPA’s use of the 2016 IRIS value has implications that reach beyond just MON. The IRIS value is being used in RTRs for other chemical industry NESHAPs as discussed below.

SOCMI NESHAPs and NSPS and NESHAPs for Group I and II Polymers and Resins

It has been about three months since U.S. EPA published final revisions to several National Emission Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards (NSPS) applicable to facilities in the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and Group I and II Polymers and Resins (P&R I and II) Industries. Following promulgation, multiple industry organizations filed petitions for review over items such as the use of the 2016 EO IRIS value, U.S. EPA’s authority to conduct multiple risk reviews, and whether the Agency appropriately considered costs of controlling emissions under the risk reviews. Notably, the U.S. Court of Appeals for the 5^th Circuit granted an emergency stay of the 90-day compliance deadline that U.S. EPA imposed on Denka Performance Elastomer while it considers a two-year compliance extension granted by the Louisiana Department of Environmental Quality. All other deadlines remain in effect, including the two-year deadline to comply with the risk-based standards and to begin fenceline monitoring programs. We expect to see additional petitions for reconsideration from stakeholders and impacts from litigation in the future, but in the meantime, U.S. EPA is moving ahead with two additional chemical sector rules.

Looking Ahead – Proposals, Final Rules, and Compliance Deadlines

U.S. EPA is expected to propose changes for two additional chemical sector air rules in the coming months. First, the Agency is under a consent decree to issue a proposed technology review of the NESHAP for Chemical Manufacturing Area Sources (CMAS) by January 15, 2025. The CAA requires U.S. EPA to identify 30 urban air toxics and set standards for area sources that represent 90% of the combined emissions of those toxics. In 2009, the Agency promulgated the CMAS rule which applies to nine chemical manufacturing sectors that emit one or more of 15 urban air toxics. The original 15 urban air toxics addressed by the CMAS rule did not include EO in the applicability provisions; however, U.S. EPA’s response to the May 6, 2021, Office of Inspector General Report recommendation to develop a NESHAP for chemical plant area sources that emit EO indicates that the Agency plans to consider EO emissions and associated risks. We expect U.S. EPA will propose EO provisions similar to those it has added to the other major source chemical sector rules like the MON and Hazardous Organic NESHAP (HON).

In addition to the CMAS updates, U.S. EPA is working on an RTR for the NESHAP for Polyether Polyols (PEPO) Production. The Agency is expected to identify emissions of EO as a driver for unacceptable risk and propose more stringent standards to address those emissions. We also expect to see changes similar to those proposed in other recent chemical rule RTRs, such as work practices for pressure relief devices, new flare requirements, revisions to heat exchange system monitoring, and fenceline monitoring. U.S. EPA is on track to issue a proposed rule by December.

U.S. EPA is also expected to finalize updates to the Standards of Performance for Volatile Organic Liquid Storage Vessels (Including Petroleum Storage Vessels) by the end of September. The proposed rule (40 CFR Part 60, Subpart Kc) included lower applicability thresholds, more stringent controls, and additional monitoring, recordkeeping, and reporting compared to the existing rule (40 CFR Part 60, Subpart Kb). U.S. EPA received several comments on the proposed rule from industry and environmental stakeholders, as well as state agencies. One of the key items raised by commenters was U.S. EPA’s reversal of their long-standing interpretation that a change in the type of material stored was not a modification if the storage vessel could accommodate the new material. We are watching closely to see how the Agency responds to this concern and others. In the interim, facilities should be tracking their storage vessel activity carefully to avoid potential non-compliance with the final rule.

As a reminder to facilities subject to the Risk Management Program (RMP) rule, if you fall into Program Level 2 or 3, your first notification exercise under the 2019 reconsideration amendments [see 84 Fed. Reg. 69,915, 40 CFR §68.96(a)] must be submitted by December 19, 2024. In an update to the March 2024 revisions, a federal appellate court granted a request from U.S. EPA and industry groups to hold litigation brought forth by industry in abeyance for four months in order to allow U.S. EPA time to reconsider the rule. Petitioners are still waiting for an indication whether the Agency will grant their requested 90-day stay of the rule.

Conclusion

As described above, U.S. EPA is continuing to advance new and revised air regulations with wide-ranging impacts on the chemical industry. Although the results of potential litigation and reconsideration may impact final rule requirements, those processes can often take years to complete. In the meantime, facilities are continuing to comply with recent rule revisions like the MON updates and are evaluating compliance options for HON, P&R I/II, and the SOCMI NSPS. If you are responsible for environmental compliance at facilities subject to CMAS or PEPO, you can get a head start on strategic planning by reviewing the recent rule changes for MON, HON, and P&R I/II considering that similar requirements might be implemented at your facilities. We also recommend actively participating in your national and local industry associations as these are great resources for updates on rules affecting your operations. If you have specific questions on the recent or upcoming rule changes or need help implementing the new requirements at your facility, please contact me at pcrawford@all4inc.com, or your ALL4 project manager. We encourage you to also check our Chemical Industry Resources page for blogs, webinars, workshops, and other resources with information on changes impacting the chemical industry.