Key Provisions Added to Streamline WV LAST/LUST Program

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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)

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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

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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.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

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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