EPA

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.

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.

Sixth-Generation Ohio Multi-Sector General Permit for Stormwater Issued Final

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Ohio EPA’s new Multi-Sector General Permit (MSGP) for Industrial Stormwater Discharges (Ohio EPA (OEPA) General Permit Number OHR000006) was issued final on May 8, 2017. The effective date of the permit is June 1, 2017. OEPA’s fifth-generation MSGP (OHR000005) expired on December 31, 2016, and its replacement has incorporated changes that clarify allowances and exceptions and ensure that Ohio’s MSGP is consistent with its U.S. EPA counterpart. This post describes some important dates for associated submittals and summarizes new provisions of the permit.

Companies with facilities currently covered by OHR000005 should expect to receive a letter from OEPA in the next few weeks. No action is required of current permit holders until this letter is received.

Important dates to keep in mind:

  • Effective permit date: June 1, 2017
  • Permit expiration date: May 31, 2022
  • Notice of Intent (NOI) submittal deadline date for existing permit holders: within 90 days of the OEPA’s written instructions (letter) to re-notify. Per Jason Fyffe, Supervisor, OEPA Central Office Stormwater Permitting, renewal letters will be mailed late the week of May 22, at the earliest.
  • Stormwater Pollution Prevention Plan (SWPPP) update timeframe for existing permit holders: within 180 days of the effective date of the permit (i.e., November 28, 2017)
  • Facilities not covered under a prior NPDES permit (new dischargers) must prepare a SWPPP prior to submitting an NOI. NOIs for new dischargers are to be submitted at least 180 days prior to discharge.

It is important to note that as of February 1, 2017, OEPA has instituted an all-electronic NOI filing policy, and facilities must use eBusiness to prepare and submit the form. If you prefer, the NPDES application utility (Surface Water Tracking, Reporting, and Electronic Application Management System or STREAMS) allows consultants to prepare the NOIs on behalf of their clients and delegate the forms to the appropriate individual for electronic signature and final submittal. CEC can assist you with this matter. Online payment is also available.

Notable changes to the current MSGP compared to OHR000005 include the following:

  • Clarifying language was added that defines conditions when pavement wash waters and routine external building washdown are an allowable non-stormwater discharge authorized by the permit. MSGP Part 1.1.3.
  • A list of the stormwater discharges subject to effluent limitation guidelines under 40 CFR, Subchapter N that are not eligible for coverage under the general permit and would require authorization to discharge under an individual NPDES permit is now included in MSGP Part 1.1.4.4.
  • A reduction in required frequency for routine facility inspections and quarterly visual assessments is now allowed for facilities recognized under the Gold and Platinum levels by OEPA’s Encouraging Environmental Excellence (E3) Program. MSGP Parts 4.1.3 and 4.2.3.
  • The requirement for a comprehensive annual site inspection has been eliminated in order to match the U.S. MSGP and to “eliminate redundancies and reduce burden” on facilities. The requirement for routine facility inspection remains, and required procedures are listed in MSGP Part 4.1.1 (no change from OHR000005).
  • Language has been added to clarify that documents incorporated into the SWPPP by reference may be maintained on site electronically (i.e., satisfies “available on site” requirement). MSGP Part 5.1.5.1.
  • Permittees are now required to make their SWPPP available to the public when requested, excluding any confidential or restricted business information. MSGP Part 5.3.
  • Language has been added to clarify that, for monitoring purposes, an outfall can include a discrete conveyance (i.e., pipe, ditch, channel, tunnel, or conduit) or a location where sheet flow leaves the facility property. MSGP Part 6.1.1.
  • Language has been added to clarify that permittees obtaining coverage in years 4 and 5 of the general permit must complete benchmark monitoring requirements to the extent of remaining monitoring periods available before the general permit expires. (Permittees obtaining coverage before this time are to complete the benchmark monitoring requirements within the first three years of permit coverage. This has not changed from OHR000005.) MSGP Part 6.2.1.2.
  • Provisions have been added for permittees who are exceeding a benchmark due to neighboring facility run-on to account for this situation. MSGP Part 6.2.1.2.
  • Provisions have been added for a facility to default to a different benchmark value if a parameter’s water quality standard is less restrictive than the permit benchmark value. MSGP Part 6.2.1.2.
  • Provisions have been added for permittees to consider pollutant concentrations (contributions) from the facility structures (roofs, walls, fencing, etc.) when determining whether it is available, practical, and achievable to implement additional control measures when a benchmark has been exceeded. MSGP Part 6.2.1.2.
  • The annual report requirements have been revised to be consistent with the federal MSGP. (The frequency and recordkeeping requirements have remained the same.) MSGP Part 7.2 and Appendix I.
  • Language has been added to clarify that the discharge of leachate (defined in OAC 3745-27-01(L)(1)) is not authorized under the MSGP. MSGP Part 8.C.2.1.
  • Composting fertilizer mixing facilities (SIC 2875) have been removed from Subsector C1 and located in a newly created Subsector C6, which provides more appropriate benchmark monitoring parameters for this industry. Table 8.C-1 and Appendix D to Sector C have been revised to specify that SIC 2875 (non-composting fertilizer mixing facilities) will be subject to Subsector C1 and SIC 2875 (composting fertilizer mixing facilities) will be subject to Subsector C6.
  • Language was added to Sector N (Scrap Recycling Facilities) to clarify that references to secondary containment under this part are referencing stationary outdoor equipment and not mobile equipment. MSGP Part 8.N.3.1.7.
  • Marinas have been added to Sector Q (Water Transportation) of the MSGP. The current OEPA Marina stormwater general permit (OHRM00002) expires on January 21, 2018, and will not be renewed. Marinas with coverage under OHRM00002 will remain covered under that general permit until it expires, and at that time, will be instructed to renew their coverage under OHR000006. NOTE: the current Marina Stormwater general permit authorizes the discharge of boat wash water if no detergents or other chemical cleaning agents are used. OHR000006 does not authorize boat wash water. Such discharges would require proper collection and disposal (i.e., sanitary sewer) or be permitted by a separate NPDES permit. MSGP Part 8, Subpart Q – Sector Q
  • Appendix B, “Standard Permit Conditions,” has been updated to reflect the “Standard Permit Conditions” language found within OEPA general permits.

For additional information regarding OHR000006, including fact sheets and a copy of the permit, visit OEPA’s Industrial Stormwater General Permit website.

If you have any questions on how the requirements of OHR000006 may affect your facility, or if you would like assistance with NOI submittal and/or updating the SWPPP for your facility, contact Amy Ritts (aritts@cecinc.com) or Andy McCorkle (amccorkle@cecinc.com).

Update — EPA issues final New Source Performance Standards for Oil and Gas with significant new compliance requirements

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On June 3, 2016, U.S. Environmental Protection Agency (EPA) finalized amendments to the Standards of Performance for Crude Oil and Natural Gas Production, Transmission and Distribution (Quad O) and a new subpart at 40 CFR 5360a et seq. (Quad Oa) for post-September 18, 2015, affected facilities. As noted in a previous CEC blog on this topic, U.S. EPA received nearly one million comments following the initial proposal. The new Quad Oa rule establishes emission standards for both methane and volatile organic compounds (VOC) at natural gas and oil well sites, production gathering and boosting stations, natural gas processing plants, and compressor stations. There are several new requirements for oil and natural gas production-related activities in these new federal rules, and it is important to understand how these rules might impact ongoing compliance activities under existing state rules and permit requirements already in effect. In this update, we focus on two of these new requirements due to their history and interrelatedness.

It is clear in reading both the proposed and final rules that U.S. EPA has expanded its understanding of oil and natural gas operations, particularly with respect to upstream E&P. Notably, the requirement for a professional engineer (PE) to evaluate and certify closed vent system design brings a new level of scrutiny borne out of a consent decree with a major oil and gas producer, and placed into practice in both the September 2015 Compliance Alert and the ongoing enforcement initiative targeting “energy extraction activities.” Not only is this new requirement intended to bring industry resources to bear on what the Agency views as a significant issue, but it also attaches professional liability to any subsequent violations attributed to closed vent system design. Further, with additional attention being focused on closed vent system design, the next obvious move on the Agency’s part was either construction practices (which are in many cases guided by industry consensus standards) or the operator’s preventative maintenance program.

From an air pollution control perspective, one focus of an upstream E&P maintenance program is to minimize or eliminate fugitive emissions from production facility equipment. As addressed by the industry during the comment period, there is an economic incentive to minimize losses of otherwise saleable products. Rather than dictate the contents of a preventative maintenance program, the Agency has instead required operators to survey for and repair fugitive emissions at well sites. While not a maintenance program per se, the new rule will require operators to engage in some routine maintenance and communication planning to ensure that fugitive leaks discovered during a survey are repaired and verified within the allotted timeframe.

Many producers operating in the Utica and Marcellus plays already had some form of fugitive emissions survey requirements in effect, as does Colorado. In other states, this will be the first time operators will have to grapple with leak detection and repair programs. This new requirement will have a disparate impact on upstream E&P operators that do not have the resources to employ full-time environmental staff or purchase the equipment needed to perform these required fugitive leak surveys in-house.

A summary of the new requirements discussed above is provided here. In the meantime, if you have questions on any aspects of the NSPS for the oil and natural gas source category, please contact the post authors: Kris Macoskey (kmacoskey@cecinc.com), or Ben Blasingame (bblasingame@cecinc.com).

For those interested in exploring this topic further:

Final NSPS OOOO and OOOOa rule from the Federal Register

http://www.ecfr.gov/cgi-bin/text-idx?SID=9ba826583925d770787ebc6558d2c418&mc=true&node=20160603y1.84a

U.S. EPA National Enforcement Initiatives

https://www.epa.gov/enforcement/national-enforcement-initiatives

CEC’s previous blog: EPA Receives Nearly One Million Comments on Proposed New Source Performance Standards for Oil and Gas

https://blog.cecinc.com/2016/04/07/epa-receives-nearly-one-million-comments-on-proposed-new-source-performance-standards-for-oil-and-gas/

U.S. EPA Proposes an Information Collection Request for the Oil and Natural Gas Industry

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On June 3, 2016, U.S. Environmental Protection Agency (EPA) published a proposed Information Collection Request (ICR) for the oil and natural gas industry in the Federal Register for notice and comment. Once the comment period ends and EPA provides responses to all significant comments, the amended proposal will be sent to the Office of Management and Budget (OMB) for review and approval. If approved, and U.S. EPA is issued a valid OMB control number, U.S. EPA would begin collecting information from oil and natural gas companies. The Agency envisions the collection process to begin in October 2016.

The purpose of the ICR is to collect detailed information to support regulation of existing oil and natural gas stationary sources. This is in contrast with recent regulatory efforts, which have focused (primarily) on new or modified sources. The information from the proposed ICR will be used to develop a pathway for the phase-in of new standards, rather than making those standards become effective for all affected sources at once.

Based on the proposal, the ICR will be divided into two parts. The first part will be sent to all oil and natural gas operators and requires information with respect to the company and its operations. The second part requires more detailed information with respect to specific sources and could involve a significant time investment from environmental and operations teams to complete. In addition, the second part of the ICR may require information that many organizations would consider confidential. Companies with confidentiality concerns may want to involve their legal teams in this process.

Also, keep in mind that this ICR will be issued under U.S. EPA’s authority under Section 114 of the Clean Air Act. This means that the Agency has the legal authority to require all responses to the ICR be certified by a responsible official and establish a deadline for providing a response.

For those interested in reading more about the proposed ICR, the U.S. EPA has a dedicated website here. Civil & Environmental Consultants, Inc. will be following the ICR approval process closely, and plans on updating this post as events unfold. In the meantime, if you have any questions with respect to the ICR or other recent federal air pollution regulatory activity, please contact Ababu Gelaye at 888-598-6808 or agelaye@cecinc.com.

TSCA Chemical Data Reporting (CDR) – 2016 Requirements

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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.