Month: January 2016

Northern Long-Eared Bat Final 4(d) Rule Announced

Posted on Updated on

On January 14th, 2016, the United States Fish and Wildlife Service (USFWS) published a final 4(d) rule for the federally threatened northern long-eared bat (Myotis septentrionalis). The final rule lifts the Endangered Species Act’s (ESA) “prohibition against incidental take.” As a result, all otherwise-legal activities related to tree clearing are exempt from the prohibition outlined in the ESA, except:

  • Tree clearing within 0.25 mile of known hibernacula
  • Tree clearing within 150 feet of a known maternity roost (i.e., a tree used by reproductive females to raise their young) between June 1 and July 31

If these exceptions cannot be avoided by project impacts, a project proponent will need to coordinate with the local USFWS office. The USFWS’s final 4(d) rule recognizes the fact that declines in northern long-eared bat populations are primarily attributable to White-Nose Syndrome (WNS), a fungal disease decimating bat populations, and not from direct take associated with the clearing of forested habitat. While this provides relief for some, it is important to note that take prohibitions of federally endangered Indiana bats (Myotis sodalis) are more stringent and remain in place. The two species’ geographic ranges greatly overlap. Additionally, state agencies have yet to officially weigh in on the final 4(d) rule and whether they will require additional conservation measures for the species.

The entire final 4(d) rule can be found here: https://www.federalregister.gov/articles/2016/01/14/2016-00617/endangered-and-threatened-wildlife-and-plants-4d-rule-for-the-northern-long-eared-bat.

For perspective, northern long-eared bats were listed as federally threatened with an interim 4(d) rule in April 2015. The interim rule allowed certain activities requiring tree clearing to be exempted from the ESA’s “prohibition against incidental take.” Similar to Indiana bats, northern long-eared bats raise their young each summer in trees within forested habitat. Northern long-eared bats range across 39 U.S. states and portions of Canada, which is the largest range of any federally listed species. Each winter, these bats hibernate in the region’s caves and mines (called ‘hibernacula’). WNS was first discovered near Albany, New York, in 2006 and has quickly spread across the eastern United States and Canada. The disease, which is not harmful to humans, causes bats to quickly burn through their fat reserves during the winter hibernation period. Affected animals emerge from hibernacula, depleted of their stored body fat, to a cold and snowy landscape devoid of insects, their sole food source. Mortality as a result of WNS is estimated to range from 90 to 100% at most hibernacula.

If you have any questions about the final 4(d) rule, please contact Ryan Slack at rslack@cecinc.com or 317-655-7777.

TSCA Chemical Data Reporting (CDR) – 2016 Requirements

Posted on Updated on

The next submission period for the U.S. EPA’s Chemical Data Reporting (CDR) requirement under the Toxic Substances Control Act (TSCA) is from June 1, 2016, through September 30, 2016, and will cover the 2012 – 2015 reporting years.  The previous CDR submission was in 2012 for the 2010 and 2011 reporting years.

Manufacturers and importers of TSCA inventory-listed chemical substances that exceed either the reduced reporting threshold (2,500 lbs/yr for certain chemical-specific TSCA Actions) or the standard reporting threshold (25,000 lbs/yr for all other listed chemicals) for any calendar year from 2012 through 2015 must prepare a CDR for each chemical exceeding the respective thresholds and submit to U.S. EPA.  Note that a CDR must be submitted covering all four reporting years if a facility exceeds an applicable threshold in any year.

For chemicals that are imported to the U.S., note that only the primary importer of a chemical (generally the entity responsible for payment of import tariffs) has the TSCA CDR responsibilities.  A facility that purchases an imported chemical from the primary importer (or other down-stream entity) is not responsible for preparation of a TSCA CDR for that chemical.

The report must be filed electronically using the U.S. EPA’s Central Data Exchange (CDX) and must include production quantities for calendar years 2012, 2013, 2014 and 2015, as well as the following information for 2015:

  • Manufacturing Related Data
    • Chemical ID,
    • Production quantity,
    • Number of workers on site who are likely to be exposed to the chemical,
    • Maximum concentration, and
    • Physical forms and relative production of each form.
  • Processing Related Data
    • Types of processes / use (up to 10),
    • Sectors,
    • Industrial function categories,
    • Percent of production,
    • Number of sites, and
    • Number of workers off site who are likely to be exposed to the chemical.
  • Consumer and Commercial Use Related Data
    • Product categories,
    • Sectors,
    • Whether the product is intended for use by children,
    • Percent of production,
    • Concentration range, and
    • Number of commercial workers who are likely to be exposed to the chemical.

For the 2016 submission, calendar year 2015 is the principal reporting year, which requires the presentation of enhanced manufacturing / processing and use data.

Whether a chemical substance is covered or not covered by TSCA can be determined by searching the U.S. EPA’s Substance Registry Services (SRS) web page.

Note that the current TSCA list includes more than 60,000 chemicals.

Chemicals applicable to CDR submission are identified as “TSCA Inv” in the chemical-specific search tables.

Common chemical substances (by industry sector) included on the TSCA inventory that may be subject to CDR requirements include:

  • Primary Metals – Steel, Slag, Baghouse Dust, Copper, Zinc, Manganese and Chromium;
  • Secondary Metals – Mill Scale, Zinc Oxide and Ferro Manganese;
  • Aggregates – Lime, Hydrated Lime, Bentonite and Kaolin;
  • Power – Coal Ash;
  • Paper – Secondary Treatment Sludge;
  • Refineries – Gasoline and Diesel Fuel;
  • Industrial Gases – Hydrogen, Oxygen, and Nitrogen; and
  • Miscellaneous – Glass, Tanning Waste and Cement.

TSCA includes a number of important exemptions from CDR reporting, including:

  • Byproducts that are disposed (i.e., not released to commerce) need not be reported;
  • A chemical present as an impurity (unintentionally present in another chemical substance) is exempt from reporting;
  • Polymers have a full reporting exemption;
  • Naturally occurring chemical substances have a full reporting exemption; and
  • Certain listed forms of natural gas and natural gas liquids have a full reporting exemption.

In addition, partial exemptions are available for certain petroleum process streams and for other common chemical substances (e.g., limestone, hydrogen, oxygen, nitrogen).

Additional information on the TSCA CDR program is provided on the U.S. EPA’s Chemical Data Reporting web page.

If you have any questions about the 2016 TSCA Chemical Data Reporting, please contact Dennis Ritter at dritter@cecinc.com or 412-429-2324.