UPDATE: Proposed Revisions to the CCR Rules

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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.epa.gov/coalash/pre-publication-copy-amendments-2015-final-rule-part-one-phase-one

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

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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

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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.

Tricolored Bat: USFWS Announces 90-Day Finding to Determine if Listing is Warranted

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On December 20, 2017, the U.S. Fish and Wildlife Service (USFWS) announced its affirmative 90-Day Finding for the tricolored bat (Perimyotis subflavus), formerly known as the eastern pipistrelle. Upon publication in the Federal Register, the USFWS will begin evaluating whether to propose to list the species or not.

The Center for Biological Diversity (CBD) and Defenders of Wildlife submitted a petition on June 14, 2016, requesting that the tricolored bat be listed as endangered or threatened, and that critical habitat be designated for this species under the Endangered Species Act.

The 90-Day Finding means that USFWS has determined that the CBD and Defenders of Wildlife petition presented substantial information that warranted a review. It does not mean the USFWS will list the species, it means that USFWS will spend time officially evaluating the species for listing as threatened or endangered or not listing the species at all. After completing a 12-month status review, the USFWS will issue a finding on the petition, and, after that, there will be a public comment period.

The tricolored bat has a very broad range covering 38 states; from Alabama to Maine, North Carolina to New Mexico. It is the only member of the genus Perimyotis. White Nose Syndrome, a fungal disease that affects bats during hibernation, has been determined to be responsible for the significant decline of this species.

CEC will continue to track the progress of USFWS in relation to the tricolored bat and the potential listing under the Endangered Species Act. Should you have any questions, please contact Dan Maltese (412-249-3158; dmaltese@cecinc.com) or Ryan Slack (317-655-7777; rslack@cecinc.com). Additional information can be found at https://www.federalregister.gov/documents/2017/12/20/2017-27389/endangered-and-threatened-wildlife-and-plants-90-day-findings-for-five-species

A New Respirable Crystalline Silica Rule for the Construction, General Industry, and Maritime Sectors

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On March 25, 2016, OSHA issued a new Respirable Crystalline Silica Rule that will ultimately impact nearly one million workers in the construction, general industry, and maritime sectors. The Rule reduced the permissible exposure level (PEL) for respirable crystalline silica from 100 to 50 micrograms of silica per cubic meter of air (µg/m3) and established a new action level of 25 µg/m3. Other provisions were included to protect employees, such as requirements for exposure assessment, exposure control methods, respiratory protection, medical surveillance, hazard communication, and recordkeeping.

The Rule included two standards: one for construction (29 CFR 1926.1153) and one for general industry and maritime (29 CFR 1910.1053), both of which became effective on June 23, 2016. OSHA’s new Respirable Crystalline Silica Rule will be implemented over a period of five years (starting on the abovementioned effective date), with enforcement coming most quickly to the construction industry. OSHA has been enforcing the Respirable Crystalline Silica in Construction standard since September 23, 2017. However, for the first 30 days, OSHA offered compliance assistance in lieu of enforcement for those employers who were making good faith efforts to comply with the new construction standard. Effective October 23, 2017, OSHA commenced enforcement of all appropriate provisions of the Respirable Crystalline Silica in Construction standard, except for requirements for sample analysis,1 which will commence on June 23, 2018. OSHA will begin enforcing most provisions of the standard for general industry and maritime on June 23, 2018. This article provides an overview of OSHA’s Respirable Crystalline Silica Rule and its applicability to the construction, general industry, and maritime business sectors.

Introduction

Crystalline silica is a basic component of soil, sand, granite, and many minerals. Quartz is the most common form of crystalline silica. Respirable size2 particles can be created as a result of activities such as cutting, drilling, and grinding of materials that contain crystalline silica. Crystalline silica has been classified as a human carcinogen. Silica exposure is a concern for nearly two million U.S. workers, including more than 100,000 workers in higher-risk jobs for this matter, such as abrasive blasting, foundry work, stonecutting, rock drilling, quarry work, and tunneling. Exposure to respirable crystalline silica can cause silicosis, lung cancer, and other respiratory and kidney diseases. There is no cure for silicosis, which in severe cases can lead to death in a few months.

OSHA has a newly established PEL (50 µg/m3), which is the maximum amount of crystalline silica to which workers may be exposed during an eight-hour work shift. OSHA also requires hazard communication training for workers exposed to crystalline silica, and a respirator protection program until engineering controls are implemented. OSHA estimates that more than 840,000 workers are exposed to silica levels that exceed the new PEL.

General industry sectors that will be affected by the new Rule include asphalt roofing materials, concrete products, cut stone, foundries, railroads, ready-mix concrete, shipyards, structure clay products, support activities for oil & gas operations, dental laboratories, jewelry, porcelain enameling, and pottery.

For construction, the most severe exposures generally occur during abrasive blasting with sand to remove paint and rust from bridges, tanks, concrete structures, and other surfaces. Other construction activities that may result in severe exposure include: jack hammering, rock/well drilling, concrete mixing, concrete drilling, brick and concrete block cutting and sawing, tuck pointing, tunneling, operating crushing machines, and milling.

Based on OSHA’s Respirable Crystalline Silica Rule, employers are required to:

  • Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan.
  • Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
  • Offer medical exams including chest X-rays and lung function tests every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
  • Train workers on work operations that result in silica exposure and ways to limit exposure.
  • Keep records of workers’ silica exposure and medical exams.

OSHA provides a table that contains dust control methods for 18 common task groups for the construction industry. Employers can either use the control methods laid out by OSHA, or they can measure workers’ exposure to silica and independently decide which dust controls work best to limit exposures to the PEL in their workplaces. Employers who do not use OSHA’s recommended control methods must:

  • Measure the amount of silica that workers are exposed to if it may be at or above an action level of 25 μg/m3, averaged over an eight-hour day.
  • Protect workers from respirable crystalline silica exposures above the permissible exposure limit of 50 μg/m3, averaged over an eight-hour day.
  • Use dust controls to protect workers from silica exposures above the PEL.
  • Provide respirators to workers when dust controls cannot limit exposures to the PEL.

OSHA prepared the following flowcharts to provide assistance to employers that are working to comply with the new Respirable Crystalline Silica Rule. For more information regarding the enforcement guidance, please visit OSHA’s enforcement guidance for the Respirable Crystalline Silica standard for construction activities.

On December 19, 2017, OSHA released 18 fact sheets that provide guidance on the respirable crystalline silica standard for construction. These fact sheets provide employers with information on how to fully and properly implement controls, work practices, and, if needed, respiratory protection for each of the 18 task groups identified by OSHA.

The Mine Safety and Health Administration (MSHA) published its own proposed rule to address miners’ exposure to respirable crystalline silica. MSHA has mentioned that it had “looked at the OSHA Rule” to establish a new PEL for work activities subject to MSHA regulation. Please contact CEC’s Ali Lashgari (alashgari@cecinc.com; 412-249-1558) with any questions or comments. CEC will make updates on respirable silica-related rules via this blog.

Note 1: Compliance Safety and Health Officers (CSHOs) should repeat Flowchart A for each employee engaged in a Table 1 task.

Note 2: To determine whether the engineering controls, work practices, and respiratory protection specified in Table 1 are fully and properly implemented, CSHOs should consult 29 CFR 1926.1153(c)(2), which contains additional requirements for tasks performed indoors or in an enclosed area, and for control measures involving wet methods or an enclosed cab or booth.

Note 3: Table 1 at 29 CFR 1926.1153(c)(1): Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica

Note 4: Please click here to find details on each compliance guidance paragraph.

 

1 29 CFR 1926.1153(d)(2)(v)
2 Particles with a diameter equal or less than 10 μm

BUSTR Rule Revisions Effective September 1, 2017

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This is an update to CEC’s blog posting of February 27, 2017, that described upcoming changes to Ohio’s Bureau of Underground Storage Tank Regulations’ (BUSTR’s) rules in the Ohio Administrative Code (OAC) 1301: 7-9-01 et. seq. (https://blog.cecinc.com/2017/02/27/bustr-proposes-rule-revisions-for-ohio-usts/). Since then, the draft rules underwent additional revision and have been through review and approval of the Joint Committee on Agency Rule Review (JCARR).

The new rules were issued final on July 31, 2017, and became effective September 1, 2017. Most of the changes described in our February blog were maintained; however, there were some changes to the proposed rules – some minor, some more significant – that were incorporated into the final rules. The more significant changes include:

  • Rule 02, Definitions: BUSTR did not include work on spill prevention equipment and cathodic protection in the definition of a “modification.” These activities are included under “routine maintenance or normal operational upkeep.” The definition of “free product” as used in prior rules was retained in the new 2017 rule.
  • Rule 04, System Registration: A 10% late fee was added to UST registrations that are filed after June 30 of each year.
  • Rule 06, Design, Construction, Installation and O&M: BUSTR retained requirements from previous rule sets pertaining to internal linings added in the field to USTs and containment systems for new dispensers. October 13, 2018, was established as the final compliance date for performing spill and overspill prevention equipment testing and walkthrough inspections. BUSTR removed the requirement to obtain a modification permit to perform a change of product, and clarified the acceptable “codes of practice” that apply to installation, modification, and repair of UST systems.
  • Rule 07, Release Detection: Rule language was modified to allow owners and operators of UST systems that store fuel for use by emergency power generators to request approval of an alternative method of release detection in lieu of installing automatic line leak detectors on pressure lines. BUSTR removed requirements for a “qualified person” to evaluate automatic tank gauging equipment. Language was added that pertains to manufacturers who are no longer in business. Record retention requirements were reduced from the proposed three years to one year for sampling, testing, or monitoring, and reduced from five years to three years for calibrations, maintenance, and repair of release detection equipment.
  • Rule 12, Closure Rule: The time period for actions required for UST systems that are out-of-service for more than twelve months was relaxed from 30 days to 90 days. Specifications were added for inert material used to fill a UST to have a density that is greater than the density of water. They also specified that the installation of monitoring wells was only required if groundwater is encountered around a UST system or portion of a UST system that was permanently removed, closed-in-place, or underwent a change-of-service on or after September 1, 1992, where a closure assessment was not conducted in accordance with the rules effective at that time.
  • Rule 13, Corrective Action Rule: The previous definition of “free product” was retained consistent with the Rule 2 definition.
  • Rule 15, Delegated Authority: A provision was added to allow a certified inspector to be employed by the owner or operator.

In our opinion, one of the more significant shifts from the 2012 rules to the 2017 rules occurred in the Corrective Action Rule (OAC 1301:7-9-13, or Rule 13) with the inclusion of additional chemicals of concern (COCs) for Analytical Group 1 – Light Distillates. Naphthalene and 1,2,4-Trimethylbenzene (1,2,4-TMB) were added to the list of aromatic hydrocarbon analyses for all release investigations. Two other chemicals, 1,2-Dibromoethane (ethylene dibromide, or EDB) and 1,2-Dichloroethane (ethylene dichloride, or EDC), were added to the list of additives. These constituents are to be analyzed only for release sites where the USTs were in service prior to January 1, 1996, and where the USTs contained aviation gasoline (“av-gas”), racing fuel, and used oil. This change in COCs will not only have implications for UST owners currently performing corrective actions, but also for former UST sites undergoing Phase II Environmental Site Assessments for property transfers.

If you would like to learn more about how the new BUSTR rules may impact your operations or if you would simply like further information, contact Brent Smith (brsmith@cecinc.com) or Andy McCorkle (amccorkle@cecinc.com) at (614) 540-6633.

Requirements for the Final TSCA Inventory Notification (Active/Inactive) Rule – (40 CFR Part 710), published August 11, 2017

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On June 22, 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA), was signed into law, making it the nation’s new primary chemicals management law.

According to the EPA, the new law, which received bipartisan support in both the U.S. House of Representatives and the U.S. Senate, includes much needed improvements such as:

  • Mandatory requirement for EPA to evaluate existing chemicals with clear and enforceable deadlines;
  • New risk-based safety standard;
  • Increased public transparency for chemical information; and
  • Consistent source of funding for EPA to carry out the responsibilities under the new law.

One year later, on June 22, 2017, EPA announced the required implementation activities. Those activities included finalization of a rule to require industry to report chemicals manufactured, imported, or processed in the U.S. over the past 10 years. This reporting will be used to identify which chemical substances on the TSCA Inventory are active in U.S. commerce and will help determine the chemicals EPA prioritizes for risk evaluation. Read more: https://www.epa.gov/tsca-inventory/tsca-inventory-notification-active-inactive-rule.

The Final Rule (TSCA Inventory Notification (Active/Inactive) Rule) was published on August 11, 2017. Supplier companies will have 180 days to report all chemicals manufactured or imported during the past 10-year period. (See further below for specifics applying to processing companies.) A number of chemical substances are excluded, such as naturally occurring substances, mixtures, exempt polymers, articles, R&D substances, etc.  There is a section of the standard 40 CFR 710.26 outlining Chemical substances for which information is not required: https://www.epa.gov/tsca-inventory/list-active-substances-exempt-tsca-inventory-notifications-active-inactive-rule#download.

EPA has published the interim Active TSCA Inventory using reporting from the 2012 and 2016 Chemical Data Reporting cycles: https://www.epa.gov/tsca-inventory/how-access-tsca-inventory.

The regulated community is required to add all other active Chemical Abstract Service (CAS) registration numbers that were manufactured or imported during the 10-year retrospective period to the active list. Companies are responsible for identifying all chemical substances that are known or reasonably ascertainable.

Companies that are only chemical processors have an additional 240 days to review the interim Active TSCA Inventory and report any additional chemicals that may have been overlooked by their suppliers. The Notice of Activity Form A will be used for retrospective reporting and the Notice of Activity Form B will be used for forward-looking reporting. Forms will need to be submitted via the EPA’s Central Data Exchange (CDX).

Companies that fail to report are in violation of TSCA Section 15 and may be subject to penalties (40 CFR 711.1(c)).

If you would benefit from having someone examine this new Rule and how it may affect your reporting requirements for the substances you manufacture, import, or process, please contact the author, Scott K. Wilson, MS, CIH, CSP, CHMM, at swilson@cecinc.com; 630-963-6026.