U.S. EPA and U.S. ACE Propose New Definition of “Waters of the United States”

Posted on Updated on

The United States Environmental Protection Agency (U.S. EPA) and United States Army Corps of Engineers (U.S. ACE) proposed a new definition of “Waters of the United States” (WOTUS) on December 11, 2018. The significance of this proposal is that WOTUS are the waters that these agencies regulate under Section 404 of the Clean Water Act (CWA).

The proposal defines WOTUS as including Traditional Navigable Waters (TNW, which are primarily waters upon which interstate commerce could be conducted), intermittent and perennial streams, ditches, channels that are relocated tributaries, impounded streams, wetlands adjacent to streams, and wetlands that have a direct connection to TNW.

The proposal further defines tributaries as excluding ephemeral streams, which are those that only flow during heavy rainfall events. This is likely the most significant part of the rule that will be challenged and is a rollback of the current 2015 federal definition of WOTUS (2015 Rule; see below) and the pre-2015 Significant Nexus standards.

The proposal also seeks to replace the Significant Nexus test with clear, defined categories, making WOTUS easier to determine and not subject to continual legal interpretations. Significant Nexus, a relatively defined and traceable pathway to TNW, had been defined by a United States Supreme Court ruling in 2006 called the Rapanos Ruling. That ruling eliminated federal jurisdiction to regulate isolated wetlands and channels under the CWA. Several clarifications of the Rapanos Rule were later issued, further complicating the definition and interpretation of a Significant Nexus.

The proposal is currently in a 60-day public comment period in which any member of the public can submit a comment and the agencies will consider them. According to the U.S. EPA, the proposal, if finalized, “would apply nationwide, replacing the patchwork framework for Clean Water Act jurisdiction that has resulted from litigation challenging the 2015 Rule. The proposal would also re-balance the relationship between the federal government, states, and tribes in managing land and water resources.”

The current federal definition of WOTUS, enacted August 28, 2015 by the Obama Administration (2015 Rule), essentially includes all channels, wetlands, and ponds that are within 100 feet of a “tributary” to a TNW, or within 1,500 feet of TNW water itself. “Tributaries” are broadly defined and often include discontinuous channels, drainage swales, and any wetland or water body located in a 100-year flood plain. This definition often extends jurisdiction over excavated ditches and other areas that were considered uplands prior to the 2015 Rule. WOTUS could include areas that were determined to contribute to downstream flow, retention, and even nutrient recycling, among other inclusive criteria. Prior to the 2015 Rule, these areas were not regulated unless it could be demonstrated that there was a Significant Nexus.

The 2015 Rule has been heavily litigated, with varying rulings issued in several states and on different legal grounds. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the 2015 Rule. Several other court cases moved forward in the meantime, making the rule effective in some states and not in others at varying times. Several rulings were issued and overturned in several courts and states. As of September 18, 2018, the latest ruling was that the 2015 Rule only applied in 22 states throughout the U.S., while the prior definitions applied in the remaining 28 states. This unpredictability has added to the already difficult regulatory hurdles faced by landowners, businesses, and the regulated public. Acquisition due diligence has become increasingly difficult, as it is almost impossible to determine what would be regulated; what the permitting path, if any, may be available; and how long the issue would take to resolve.

These hurdles, combined with other laws such as the Endangered Species Act,1 create significant economic hardships for landowners, farmers, real estate developers, and other businesses and industries. Some of these hardships are halting projects or rendering previously developable or farmable land unusable. As a result, the development and agricultural communities argued that the 2015 Rule was an overreach by the U.S. EPA and U.S. ACE. In light of this regulatory landscape, most industries involved in real estate development agree that a formal definition of WOTUS is needed to create predictability in due diligence. Furthermore, such a definition could help owners or consultants identify WOTUS without government verification and alleviate fear of differing WOTUS opinions by the U.S. ACE after a project has commenced, leading to enforcement actions.

Prior to the 2015 Rule, WOTUS were generally defined in the U.S. ACE regulations adopted under the CWA (33 Code of Federal Regulations Part 328.3). Several guidance documents such as the 1987 U.S. ACE Wetland Delineation Manual, Natural Resources Conservation Service Technical Notes, state-issued rainwater and storm water manuals, and Federal Regulatory Guidance Letters were used to further identify and determine the limits of WOTUS. While these resources shed light on how to identify WOTUS, they did not technically define what WOTUS was or what was regulated and what was not. As a result, most developers sought U.S. ACE verifications of WOTUS opinions, typically with the help of consultants. These verifications are expensive and often take months to obtain. In many parts of the U.S., these verifications can only be conducted during the growing season—the time when plants are not dormant. Combined with clearing restrictions, survey windows, and local permitting, this made legally timing construction activities a difficult proposition, delaying or halting projects and increasing carrying costs.

After the 60-day comment period ends, the most optimistic predictions forecast that the agencies will adopt the new proposal in September of 2019. If history is any indicator, however, the rule will be mired in legal challenges and politics. In the meantime, the 2015 Rule applies in 22 states and the prior standard applies in the 28 remaining states. Landowners and developers should exercise caution when acquiring property and add extra time for due diligence to avoid potentially catastrophic economic risk.

If you have questions about WOTUS or relevant regulatory updates, please contact Bill Acton (bacton@cecinc.com) or at 614-310-1041.


1 The Endangered Species Act can delay land development projects by requiring season-specific surveys for protected species and preparation and agency approval of habitat conservation plans, and by imposing seasonal restrictions on land clearing activities.

Pennsylvania Game Commission Seeks Protection for Three Bat Species

Posted on

The Pennsylvania Game Commission (PGC) is taking action to list three bats as state endangered species. In late September 2018, the agency’s Board of Game Commissioners preliminarily approved a measure to update the state’s list of threatened and endangered species to add the northern long-eared bat, tri-colored bat, and little brown bat.  The PGC had attempted to list these species in 2012, but concerns from the timber, oil and gas, real estate development, and coal industries about unnecessary oversight and job loss prompted the PGC to withdraw its proposal.

The northern long-eared bat was previously listed as a federally “threatened” species in 2016 by the U.S. Fish & Wildlife Service (U.S. FWS). The little brown bat is proposed to be reviewed under the U.S. FWS 7-Year Listing Work Plan in 2023.  The tri-colored bat will likely follow this same review schedule.  Regardless of the intended future federal review for these species, the PGC has decided to move forward in an effort to protect these bat species ahead of U.S. FWS.

If the proposed state listings are finalized, the PGC will be the lead agency and coordinate with developers to resolve any conflicts for the little brown and tri-colored bats. For potential impacts to northern long-eared bats, coordination with both the U.S. FWS and the PGC will likely be required.

In Pennsylvania, potential threatened and endangered species conflicts can be evaluated using the Pennsylvania Natural Diversity Inventory (PNDI) environmental review tool. The PNDI database was established to provide information to help guide environmental decisions related to land development projects. It includes resource information from three state agencies (PGC, Pennsylvania Fish & Boat Commission, Pennsylvania Department of Conservation and Natural Resources) and one federal agency (U.S. FWS).

The proposed listings will only “flag” those projects that are within 300 meters of a recently identified maternity roost, hibernacula, or capture location. There are approximately 30 hibernacula and 120 maternity sites known to support little brown and tri-colored bats that will be added to the PNDI database. Sites where these bats were known to occur prior to the arrival of white nose syndrome (WNS) will not be included in the PNDI updates.  Additional protective measures may include seasonal tree clearing restrictions for those sites with conflicts.

The decline of these bat species is specifically linked to WNS, a fungal disease that affects bats during hibernation. WNS has affected 97% of Pennsylvania’s bats that hibernate in caves.  Given the fact that most female cave bats only produce one pup per year, it will take more than a century to replace previous populations.

Written comment will be accepted by the PGC on this status-change package until December 31, 2018. The Board of Game Commissioners also will accept public comment at its January 27 and 28, 2019, meetings and final adoption of the proposal will be considered at the Board’s January 29, 2019, meeting in Harrisburg, Pennsylvania.

CEC will continue to track the protection status of the abovementioned three bats as Pennsylvania state endangered species. Should you have any questions, please contact Daniel A. Maltese, Ecological Sciences Practice Lead, at dmaltese@cecinc.com or (412) 249-3158.  Mr. Maltese is located in CEC’s Pittsburgh headquarters office.

Key Provisions Added to Streamline WV LAST/LUST Program

Posted on Updated on

This blog post is a follow-up to CEC’s summary of the West Virginia Tanks Corrective Action Unit (TCAU) update to the Corrective Action Guidance Document (CAGD) for Leaking Aboveground Storage Tanks (LAST) and Leaking Underground Storage Tanks (LUST).

[Background: The TCAU released the update to the public on July 25, 2018, for immediate implementation. The stated intent of the CAGD is to better articulate West Virginia’s LAST/LUST program requirements, provide clarification on what information must be collected when investigating and cleaning up releases, and improve the consistency and quality of required reports, resulting in a more streamlined process for remediating LAST/LUST sites. The guidance discusses the processes and procedures for identifying and investigating suspected and confirmed releases, identifying appropriate cleanup levels, selecting and conducting appropriate corrective actions, and establishing reporting requirements. The CAGD is applicable to regulated Aboveground Storage Tanks (ASTs) as defined by W.Va. Code §22-30 and Underground Storage Tanks (USTs) subject to regulation by W.Va. Code §22-17 and 40 CFR 280. Note that regulated ASTs are either Level 1 or 2.]

KEY PROVISIONS

Some of the key provisions that were added to improve efficiency and streamline the program include:

Incorporation of standardized data entry-enabled electronic forms for submitting plans, reports, and related documents

TCAU has developed and made available standardized data entry-enabled electronic forms for submitting nearly all required plans and reports, including initial site check reports, site characterization reports, initial abatement measures reports, free product monitoring reports, quarterly groundwater monitoring reports, site investigation reports, and AST closure plans. The standardization of the forms and reporting requirements is designed to simplify WVDEP’s review process and increase the efficiency and cost-effectiveness of the review process for WVDEP and the regulated community.

Providing an optional “FastTrack” approach for cleaning up low-impact sites

TCAU has developed a “FastTrack” program to allow for a quick, efficient, and cost-effective cleanup for low-impact sites. Utilizing FastTrack, a tank owner/operator reports a release, performs the initial response requirements, and then moves directly to remediation of the site, provided that the site/release meets certain conditions. TCAU anticipates that this is a viable option for certain types of releases, such as releases from spill buckets, sumps, under-dispenser containment, or limited piping, as well as tank releases encountered during tank closures and/or upgrades. In order to qualify for the FastTrack program, the release must be relatively small and confined to the site, have no potential to impact surface water or groundwater, pose little or no risk to human health or the environment, and be readily remediated by excavating contaminated soil. WVDEP has pre-approved FastTrack for releases involving refined petroleum products (gasoline, diesel, kerosene, heating oil, oil, etc.), crude oil, brine, natural gas condensate, sodium hydroxide, or sodium carbonate, although other chemicals may potentially be acceptable if approved by the Agency.

Implementation of Presumptive Remedies

TCAU has developed what amounts to an expedited approval process for Corrective Actions implementing commonly used remediation approaches for LAST/LUST cleanups including soil excavation, soil vapor extraction (SVE), low temperature thermal desorption (LTTD), air sparging (AS), dual-phase extraction (DPE), in situ chemical oxidation (ISOC), and aggressive fluid vapor recovery (AFVR). In order to employ a presumptive remedy (PR), the remediator completes an appropriate PR form that is essentially a screening process for determining whether the remedy will be effective for the site. The completed form along with a monitoring plan and appropriate site maps showing monitoring points are submitted as the Corrective Action Plan. The use of a presumptive remedy is not applicable when the contamination has migrated beyond the facility boundary unless it can be demonstrated that the presumptive remedy will address the contamination beyond the facility boundary.

If your company’s operations involve the management and oversight of aboveground or underground storage tanks in West Virginia and you would like to know more about the updated processes and procedures surrounding investigation, cleanup, corrective actions, and reporting of releases, please contact the author, Robert (Bo) Valli, at bvalli@cecinc.com or (412) 303-6699.

WVDEP Releases New Corrective Action Guidance Document (CAGD) for Leaking Aboveground Storage Tanks (LAST) and Leaking Underground Storage Tanks (LUST)

Posted on Updated on

On July 25, 2018, the West Virginia Tanks Corrective Action Unit (TCAU) released its update to the Corrective Action Guidance Document (CAGD) for Leaking Aboveground Storage Tanks (LAST) and Leaking Underground Storage Tanks (LUST), which became effective upon publication. The stated intent of the CAGD is to better articulate West Virginia’s LAST/LUST program requirements, provide clarification on what information must be collected when investigating and cleaning up releases, and improve the consistency and quality of required reports, resulting in a more streamlined process for remediating LAST/LUST sites. The guidance discusses the processes and procedures for identifying and investigating suspected and confirmed releases, identifying appropriate cleanup levels, selecting and conducting appropriate corrective actions, and establishing reporting requirements. The CAGD is applicable to regulated Aboveground Storage Tanks (ASTs) as defined by W.Va. Code §22-30 and Underground Storage Tanks (USTs) subject to regulation by W.Va. Code §22-17 and 40 CFR 280. Note that regulated ASTs are either Level 1 or 2.

The CAGD replaces and supersedes previous AST and UST closure guidance documents and incorporates a number of concepts that shift the paradigm of how LAST/LUST sites are investigated and remediated in West Virginia.

First, TCAU has abandoned the use of total petroleum hydrocarbons (TPH)/diesel range organics (DRO)/gasoline range organics (GRO)/oil range organics (ORO) as analytes of interest in favor of individual chemicals most associated with the different TPH ranges. Analysis for TPH will still be performed to profile petroleum-contaminated waste for disposal.

Second, the TCAU has developed three tiers of new action levels for soils at LAST/LUST sites that are protective of direct contact (ingestion, dermal contact, and inhalation of volatile organic compounds/particulates) and vapor intrusion exposure pathways (inhalation of volatile organic compounds). The Tier 1 level is the most conservative of the three tiers and applies to most sites. Tier 2 provides soil action levels for sites under residential use. Tier 3 may be utilized for determining compliance with the soil action levels when the property owner has agreed to place a deed restriction on the property, appropriately restricting its use to non-residential. Tier 2 and 3 action levels are depth-dependent (0 to 8 feet and greater than 8 feet) to protect human health, and their use can be precluded by “limiting factors,” which generally consist of subsurface utilities and building or soil conditions that could result in preferential migration of volatile organic compounds into buildings.

Third, protection of groundwater is addressed entirely through the use of a 10-foot soil buffer. There is an underlying presumption that a 10-foot soil buffer is sufficient to prevent contaminants in soil from leaching into groundwater and causing groundwater contamination irrespective of the concentrations in the soil. Under this approach, if contamination (defined as “detectable”) is detected within 10 vertical feet of the water table, or free product is present at the water table, a groundwater investigation must be conducted. For circumstances where contamination is not detected within 10 vertical feet of the water table, it is presumed that meeting Tier 1, 2, or 3 action levels is protective of groundwater.

In addition to the concepts discussed above, the guidance establishes various quality control procedures related to collecting environmental samples, constructing monitoring wells, and validating laboratory data.

Be advised that the above discussion is a broad-brush synopsis of the primary elements and concepts that comprise the CAGD, and that there are many intricacies and caveats that are part of the CAGD that are not mentioned in this blog post, not the least of which is how keywords such as “soil,” “contamination,” and “product” are defined.

If your company’s operations involve the management and oversight of aboveground or underground storage tanks in West Virginia and you would like to know more about the CAGD update and clarifications, please contact the author, Robert (Bo) Valli, at bvalli@cecinc.com or (412) 303-6699.

CEC has developed a follow-up post on key provisions added to streamline the WV LAST/LUST program. Click the link to read this additional information or paste the following into your browser: https://blog.cecinc.com/2018/08/08/key-provisions-added-to-wv-last-lust-program.

UPDATE: Proposed Revisions to the CCR Rules

Posted on Updated on

The following information is provided as an update to our recent blog on the proposed revisions to the CCR Rules.

EPA Acting Administrator Wheeler signed the Final CCR Rule Phase 1, Part 1 on July 17, 2018.  The rule will become effective 30 days after publication in the Federal Register.  The main points of the rule include:

  1. Addition of risk-based groundwater protection standards (GWPS) based on regional screening levels (RSLs) for cobalt, molybdenum, lead, and lithium – the four Appendix IV constituents that do not have Maximum Contaminant Levels (MCLs),
  2. Extension of the deadline for the mandatory closure of unlined surface impoundments that exceed GWPS and facilities that do not meet the location restriction for placement above the uppermost aquifer, and
  3. Provision for states with approved CCR permit programs under the Water Infrastructure Improvements for the Nation (WIIN) Act or EPA to use alternative performance standards, including: (1) suspending groundwater monitoring requirements if there is no potential for migration of hazardous constituents to the uppermost aquifer, and (2) issue technical certifications.

For those interested in exploring this topic further:

A prepublication copy of the rule is available at https://www.federalregister.gov/documents/2018/07/30/2018-16262/hazardous-and-solid-waste-management-system-disposal-of-coal-combustion-residuals-from-electric

CEC’s previous blog, Proposed Revisions to the CCR Rules: https://blog.cecinc.com/2018/05/18/proposed-revisions-to-the-ccr-rules/

If you have questions regarding U.S. EPA’s proposed changes to the CCR Rules, please contact: Roy Stanley, C.P.G. (rstanley@cecinc.com; 888-598-6808 ext. 3316) in our Columbus office, or Brianne Hastings, P.G. (bhastings@cecinc.com; 800-365-2324 ext. 1117) or Mark Orzechowski, P.G. (morzechowski@cecinc.com, 800-365-2324 ext. 1152) in our Pittsburgh office.

PROPOSED REVISIONS TO THE CCR RULES

Posted on Updated on

Proposed changes to the U.S. Environmental Protection Agency (U.S. EPA) CCR Rules in 40 CFR 257 (Federal Register/Vol. 83, No. 51/Thursday, March 15, 2018/Proposed Rules) could have a significant impact on coal-fired power plants, especially with regard to groundwater monitoring requirements and close-in-place capping.

BACKGROUND AND KEY POINTS

  • The rule changes are proposed in response to
    • Judicial Remand, April 18, 2016, resolution of Utility Solid Waste Activity Group (USWAG) et al. v. U.S. EPA no. 15-1219, D.C. Circuit Court); and
    • The Water Infrastructure Improvements for the Nation (WIIN) Act enacted in December 2016.
  • Additional proposed rule changes are in response to comments to U.S. EPA received after the final CCR rule date.
  • Proposed rules address four provisions of the final rule that were remanded on June 14, 2016.
  • U.S. EPA presently intends to take final action on proposed rule amendments in response to Judicial Remand by June 2019.
  • U.S. EPA also proposes seven provisions that establish alternative performance standards for CCR units located in states that have approved CCR permit programs (identified as “participating states,” such as Oklahoma) under the WIIN Act.
    • If not in a participating state, U.S. EPA will administer a permit program for CCR units.
  • Also, additional proposed changes effect record keeping, notification, and internet posting requirements.
  • U.S. EPA is not considering any other comments on other provisions of the final CCR rule under this specific proposal; however, additional revisions may be changed subject to challenge in litigation.
  • The comment period for the proposed CCR rule amendments ended on April 30, 2018.

Economic Benefits

These proposed actions are estimated to result in net cost savings of between $25 million and $76 million per year for the industry. Cost savings are attributable to the proposed amendments against the baseline costs of the 2015 CCR rule.

SUMMARY OF THE U.S. EPA PROPOSED AMENDMENTS

Proposals Associated with Judicial Remand

Four proposed changes:

  1. Add boron to the list of Appendix IV parameters that trigger corrective action and potentially require CCR unit retrofit or closure.
    (Read more detail here)
  2. Determine the requirement for woody and grass vegetation for slope protection.
    (Read more detail here)
  3. Clarify the type and magnitude of non-groundwater releases requiring facilities to comply with some or all of the corrective action procedures in 40 CFR 257.96-257.98 for cleanup of the release. U.S. EPA is proposing a subset of corrective action procedures for non-groundwater releases that can be completely remediated within 180 days from detection of the release.
    (Read more detail here)
  4. Modification of the alternative closure provisions to allow management of both CCR and non-CCR waste streams under exception for a certified absence of alternate disposal capacity.
    (Read more detail here)

Proposals Associated with the WIIN Act

General proposed provisions:

  • U.S. EPA is seeking comments on how alternative performance standards can be implemented directly by the facilities, even in states without a permit program, given that U.S. EPA has oversight and enforcement authority.
  • U.S. EPA seeks comment on whether to allow participating states the ability to modify the location restrictions on a site-specific basis, and whether changes to the location restriction deadlines are appropriate.

Seven alternative performance standards:

  1. Allow the use of risk-based groundwater protection standards for Appendix IV constituents with no MCL.
    (Read more detail here)
  2. Allow modification of the corrective action remedy in certain cases.
    (Read more detail here)
  3. Allow the suspension of groundwater monitoring if a no-migration demonstration can be made.
    (Read more detail here)
  4. Establish an alternate schedule to demonstrate compliance with the corrective action remedy.
    (Read more detail here)
  5. Modify the post-closure care period.
    (Read more detail here)
  6. Allow Director of participating states to issue technical certifications, rather than the current certifying engineer requirement.
    (Read more detail here)
  7. Allow the use of CCR during certain closure situations.
    (Read more detail here)

If you have questions about any of the above-mentioned details regarding U.S. EPA’s proposed changes to the CCR Rules, please contact one of the blog post authors: Roy Stanley, C.P.G., in our Columbus office (rstanley@cecinc.com; 888-598-6808 ext. 3316) or Brianne Hastings, P.G., in our Pittsburgh office (bhastings@cecinc.com; 800-365-2324 ext. 1117). More information on the proposed changes can be found at the links placed within this post, or by visiting U.S. EPA’s website at https://www.epa.gov/coalash/coal-ash-rule.

Federally Listed Plant Species Now in Pa. Could Trigger New Botanical Surveys

Posted on Updated on

In 2017, running buffalo clover (Trifolium stoloniferum) was found growing in Greene County, Pennsylvania. This is the first known occurrence of this federally endangered clover in Pennsylvania. Users of the Pennsylvania Conservation Explorer tool who are completing an environmental review for projects in Greene County may now start seeing survey requests for this species, which will require a botanical survey to be completed by a U.S. Fish and Wildlife Service (USFWS)-Qualified Surveyor.

While conducting a botanical survey last summer, a botanist with the Western Pennsylvania Conservancy identified running buffalo clover plants growing along a Pennsylvania stream. Running buffalo clover has been found very close to the Pennsylvania border in the past, and its discovery within Pennsylvania does not come as a surprise to botanists in the southwestern corner of the state. 

Following discussions at Pennsylvania’s Department of Conservation and Natural Resources (DCNR), charged with implementing the Wild Resource Conservation Act (PA Code Title 17 Chapter 45), and the USFWS, charged with administering the Threatened and Endangered Species Act, the new running buffalo clover population has been added to the Pennsylvania Natural Diversity Inventory (PNDI).  Natural gas, coal, and oil producers, plus pipeline and utility companies, may now start receiving survey requests on PNDI searches occurring near the newly discovered population in Greene County.

Unlike botanical surveys requested by DCNR for Pennsylvania-listed plant species, the USFWS requires the use of Qualified Surveyors for botanical presence/absence surveys. Each USFWS Field Office maintains a separate list of Qualified Surveyors—persons known by the USFWS to have the skills and experience to conduct surveys—for each listed species. The USFWS Pennsylvania Field Office does not have plans to issue a Qualified Surveyors list for running buffalo clover at this time, but will accept surveyors listed as qualified by the Ohio or West Virginia Field Offices. The survey season has not yet been established for Pennsylvania, but it is expected to be somewhere within a May-to-September window.

Though DCNR has the authority to request botanical surveys for running buffalo clover in Pennsylvania, DCNR will typically defer to the USFWS for final decisions regarding this federally endangered clover, similar to the relationship between the Pennsylvania Game Commission and the USFWS for potential impacts to federally listed bat species.

If you have questions about running buffalo clover in Pennsylvania, please contact David Quatchak (dquatchak@cecinc.com) or Joe Isaac (jisaac@cecinc.com). Mr. Quatchak and Mr. Isaac are USFWS-Qualified Surveyors for Running Buffalo Clover in West Virginia and Pennsylvania. Both individuals can also be reached at 800-365-2324.