Energy and Environment Monitorwww.eem.jacksonkelly.com

Environmental Groups Notify EPA of Planned Coal Ash Suit

On January 18, 2012, Earthjustice notified the EPA of its intent to sue the agency over an alleged failure to properly regulate coal ash under the Resource Conservation and Recovery Act (“RCRA”).   Earthjustice sent the notice on behalf of eleven different environmental groups, including the Sierra Club, Kentuckians for the Commonwealth and Appalachian Voices. 

In the written notice, Earthjustice alleges that EPA is required to review and revise RCRA regulations relating to coal ash every three years (note: RCRA actually requires only that regulations be reviewed and revised every three years “where necessary”).  Earthjustice alleges that EPA has failed to fulfill this responsibility, noting that the agency has failed to follow through on proposed rulemaking aimed at coal ash.  EPA is currently in the process of reviewing and evaluating more than 450,000 comments it has received regarding potential coal ash regulation by the agency.  

On a related front, the US House of Representatives passed a bill in October 2011 that would prevent EPA from regulating coal ash as a hazardous waste.  Supporters of that legislation note that coal ash has long been used beneficially in products such as concrete and wallboard.  The coal industry often uses coal ash with alkaline properties in the reclamation process. Currently, the bill – which has been criticized by the Obama Administration -- remains stuck in committee in the US Senate.    

According to Earthjustice, the EPA has failed to move forward on the regulation of coal ash due to “politics and pressure from corporate lobbyists.”  Earthjustice did not comment on the lobbying efforts of the Sierra Club or other affiliated organizations opposed to coal or coal ash.  In 2011, New York City Mayor Michael Bloomberg donated $50 million to the Sierra Club to be used for its anti-coal campaign. 

RCRA requires citizens to provide 60 days’ notice of their intent to file suit.  The letter from Earthjustice was issued to comply with RCRA’s notice requirement.    

This article was authored by M. Shane Harvey, Jackson Kelly PLLC. For more information on the author see here.

USEPA Releases Formerly Confidential Business Information under TSCA

In September 2009, EPA Administrator Lisa P. Jackson announced changes to EPA’s chemical management program under the Toxic Substances Control Act (TSCA).  As part of these changes, EPA has both increased public access to chemical information submitted by companies to EPA and tightened EPA’s Confidential Business Information (CBI) policy under TSCA.  On January 21 and then on May 27, 2010, EPA issued new guidance and then revised this guidance with regard to reviewing and challenging CBI claims by companies under TSCA.  Under the new guidance policy, EPA is reviewing both existing and new CBI claims and intends to deny CBI claims where the health and safety studies show a substantial risk to human health and the environment and have been previously disclosed in the TSC Chemical Inventory.  Where the CBI claims are denied after review, EPA then intends to make both the chemical name and health and safety study available to the public. 

Under TSCA, companies may claim that information they have submitted to EPA should be treated as CBI and not be disclosed to the public.  Under Section 8(e) of TSCA, companies that manufacture, process, or distribute chemicals are required to immediately notify EPA when they learn that a chemical represents a substantial risk of injury to health and/or the environment.  The Section 8(e) reports are available on EPA’s website, but when a CBI claim has been made by a company, the chemical name is removed from the public report. 

As of October 2011, the identities of 577 formerly confidential chemicals are no longer confidential and more than 1,125 health and safety studies are now accessible to the public.  These studies were previously unavailable or only available in limited circumstances.  Furthermore, EPA reports that 100 percent of incoming TSCA filings are being reviewed and CBI claims are being challenged by EPA, where appropriate.  In these cases, where the companies do not voluntarily relinquish their CBI claims, EPA can initiate administrative action under Section 14 of TSCA.  To date, more than 35 companies have agreed to review previously submitted filings containing health and safety studies and “voluntarily” determine if any CBI claims are no longer necessary.  The newly available information can be accessed under a new "declassified tab" using EPA’s Chemical Data Access Tool.  Additional information is available at http://www.epa.gov/oppt/existingchemicals/pubs/transparency.html and http://www.epa.gov/oppt/existingchemicals/pubs/transparency-charts.html. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

Identifying TSCA Priority Chemicals

Under the Toxic Substances Control Act (TSCA) as well as the Pollution Prevention Act (PPA), (see www.epa.gov/opptintr/existingchemicals/pubs/basicinfo.html) USEPA has statutory authority to address pollution prevention, risk assessment, hazard and exposure assessment and characterization, and risk management for chemical substances in commercial use.  Specifically, TSCA directs EPA to: 

• Maintain the Chemical Substances Inventory, which is a list of existing chemicals in commerce. (Chemicals not already listed on the TSCA Inventory are considered "new chemicals" under TSCA and must go through a review process before they can be added to the Inventory and become "existing chemicals."
• Require testing of chemical substances where necessary to evaluate potential human health or environmental hazards.
• Regulate (including restricting or banning) the manufacture, importation, processing, distribution, use, and/or disposal of any chemical substance that presents an unreasonable risk of injury to human health or the environment.
• Coordinate certain actions on chemical substances under TSCA with actions taken under other federal laws, including those administered by other federal agencies as well as other laws administered by EPA. If risk on a chemical substance is already managed effectively under a different statute, regulation under TSCA generally is not used. 

As outlined by EPA (www.epa.gov/opptintr/existingchemicals/pubs/enhanchems.html), on September 29, 2009, Lisa Jackson, EPA Administrator, announced that EPA is putting in place a comprehensive approach to enhance the Agency’s current chemicals management program under TSCA.  This approach includes the following activities:  

1. New regulatory risk management actions.
2. Development of Chemical Action Plans.
3. Submittal of information.
4. Increased public access to information about chemicals.
5. Identification of Priority Chemicals for review and assessment. 

The purpose of this blog article is to discuss in further detail EPA’s proposed actions with regard to Item 5 above.  On September 7, 2011, EPA hosted a webinar to obtain public input regarding its new approach, a two-step process, to identify priority chemicals for review and assessment under TSCA.  Step 1 would consist of the identification of an initial group of chemicals (estimated to be in the “several hundreds” by EPA during the webinar) based on specific data sources and Chemical Action Plan priority factors, which are: 

• Chemicals identified as potentially of concern for children’s health (e.g., chemicals with reproductive or developmental effects).
• Chemicals identified as persistent, bioaccumulative, and toxic (PBT).
• Chemicals identified as probable or know carcinogens.
• Chemicals used in children’s products.
• Chemicals used in consumer products.
• Chemicals detected in biomonitoring programs. 

EPA states (www.epa.gov/opptintr/existingchemicals/pubs/chempridiscguide.html) that “chemicals meeting one or more of these Action Plan prioritization factors would become part of the initial group of specialty chemicals for review.”  Under Step 1, EPA proposes to use a broad range of domestic and international data sources to identify chemicals for further review.  Some of these data sources include: 

• Integrated Risk Information System (IRIS).
• TRI PBT Rule.
• Great Lakes Binational Toxics Strategy Canadian Categorization.
• Chemicals proposed to UNECE LRTAP POPs and Stockholm Convention on POPs.
• Voluntary Children’s Chemical Evaluation Program.
• California Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986).
• Washington State Children’s Safe Products Act.
• Danish Consumer Products Studies.

 Under Step 2, EPA would refine the group of specialty chemicals identified using a broader range of data sources to further analyze and select specific chemicals for further assessment.  EPA identifies the following types of exposure data source categories that will be used: 

• Uses.
• Environmental releases.
• General human exposures, including indoor air contaminants.
• Worker exposures.
• Environmental exposures.
• National Library of Medicine Databases.
• TSCA Test Submission Database (TSCATS).
• USEPA:
• Office of Pesticide Programs
• Ambient Water Quality Criteria Documents
• Drinking Water Standards Health Effects Support Documents
• ECOTOX database
• IPCS Concise International Chemical Assessment Documents (CICADS) 

As summarized by Lynn L. Bergeson in the November and December 2011 editions of Pollution Engineering (see Legal Outlook, pages 10 and 11 respectively), as commercial and industrial users of existing chemical compounds in the U.S. consider the implications of EPA’s proposed new approach to identifying priority chemicals for review and assessment under TSCA, the following issues should be considered: 

• A potentially large list of chemicals (estimated by EPA to be in the “several hundreds”) will initially be generated for review.
• The process to be used by EPA to select which chemicals will be evaluated is not clear.
• EPA states it will consider “risk-based prioritization factors” in Step 1.  However, how EPA will integrate “risk-based prioritization factors” into the process is also not clear. 

Finally, as with other revisions to TSCA proposed by EPA over the last several years, there could be potentially important impacts on the commercial and industrial use of chemicals in the U.S.   One such impact could ultimately be the development of a “chemicals of concern” list under Step 1, with the potentially adverse impacts associated with the development of such a list by EPA.  Furthermore, under TSCA, it should be noted that EPA has the statutory authority to regulate (including restricting or banning) the manufacture, importation, processing, distribution, use, and/or disposal of any chemical substance that presents an unreasonable risk of injury to human health or the environment.  Therefore, continued monitoring of EPA’s proposed revisions to TSCA is recommended as EPA moves the process forward. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

Lifting of Stay on Hydrogen Sulfide Reporting on Community Right-to-Know Toxic Chemical Release Reporting

On Monday October 17, 2011, the United States Environmental Protection Agency lifted the administrative stay on hydrogen sulfide on Community Right-to-Know Toxic Chemical Release Reporting (TRI). The first reporting year will be 2012 with the first reports for hydrogen sulfide due on July 1, 2013.

Hydrogen sulfide occurs naturally in crude petroleum, natural gas, volcanic gases, hot springs and anaerobic bacteria consuming human and animal waste. US EPA identifies the following industrial activities as possible hydrogen sulfide sources: food processing, coke ovens, kraft paper mills, tanneries and petroleum refineries. Hydrogen sulfide was original added to the TRI list on December 1, 1993. On August 22, 1994 the US EPA issued an administrative stay to suspend the TRI reporting requirements for hydrogen sulfide in order to address issues that were raised by members of the regulated community regarding the information used to support the original listing decision. After a review of currently available data on human health and environmental effects of hydrogen sulfide, US EPA proposed to lift the administrative stay on February 26, 2010.

TRI reporting industries will need to determine if the facility meets the any of the TRI thresholds for manufacturing (including coincidental manufacturing i.e. hydrogen sulfide generated by bacteria in wastewater system), processing or otherwise use.

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC. For more information on the author see here.

U.S. EPA Proposes to Exclude from Hazardous Waste Regulation CO2 Streams in Geologic Sequestration Activities

On August 8, 2011, U.S. EPA proposed a conditional exclusion from the Resource Conservation and Recovery Act (RCRA) for captured carbon dioxide (CO₂) streams destined for geologic sequestration. 76 Fed. Reg. 48,073 (August 8, 2011).  Providing certain conditions are met, those CO₂ streams would be excluded from the definition of hazardous waste.  The proposed rule would likely impact energy-related sources such as power plants and natural gas processing facilities, large industrial facilities such as steel and cement production, manufacturing and chemical plants, transporters of captured CO2 streams destined for geologic sequestration, and operators of CO2 injections wells used for geologic sequestration.  While states are not required to adopt the conditional exclusion, if finalized, because it is less stringent than the Federal hazardous waste management program, West Virginia can reasonably be expected to adopt the provision if it is finalized.  Currently, U.S. EPA is projecting that the final rule will be published in February 2013.  See U.S. EPA’s RegDaRRT (Regulatory Development and Retrospective Review Tracker) website at http://yosemite.epa.gov/opei/RuleGate.nsf/.  

The major conditions of the proposed exclusion are: 

-  Transportation of the compressed CO2 stream would need to be in compliance with applicable Department of Transportation requirements;

-  Injection of the CO2 stream would need to be in compliance with the applicable requirements for Class VI Underground Injection Control (UIC) wells, including the applicable requirements in 40 CFR Parts 144 and 146;

-  No hazardous wastes could be mixed with, or otherwise co-injected with, the CO2 stream; and

-  Any CO2 stream generator and any UIC Class VI well owner/operator who claims the exclusion would need to have an authorized representative annually certify that the CO2 stream meets all the conditions of the exclusion. The certification statements would need to be kept onsite for no less than three years.

76 Fed. Reg. 48,073, 48,093. 

The purpose of the exclusion from hazardous waste regulation for CO2 streams is, in U.S. EPA’s words, “to advance the use of carbon capture and sequestration (CCS)”.  U.S. EPA states its proposal provides “regulatory certainty” and “encourages the deployment of CCS technologies in a safe and environmentally protective manner.”  According to U.S. EPA, the proposed rule is consistent with recommendations made by President Obama’s interagency task force on CCS in August 2010.  For the interagency task force report on CCS, see http://www.epa.gov/climatechange/policy/ccs_task_force.html.   In its press release announcing the proposed RCRA exclusion, U.S. EPA further states that the proposal “helps create a consistent national framework to ensure the safe and effective deployment of technologies that will help position the United States as a leader in the global clean energy race.”  

The proposed rule grows out of two recent rulemakings to regulate geologic sequestration and U.S. EPA’s evaluation of technologies aimed at capturing CO2 before release into the atmosphere. Carbon capture and storage (CCS) is one such technology and involves collecting CO2 emissions and storing them in an environmentally protective manner.  Basically, CCS is a three-step process: (1) capture, dehydrate, and compress the CO2 stream from fossil-fuel power plants or other industrial sources; (2) transport the CO2 stream (usually in pipelines) to an on- or off-site location; and (3) inject the CO2 stream underground into deep subsurface rock formations for sequestration. 

In December 2010, U.S. EPA finalized two rules to regulate geologic sequestration.  First, on December 1, 2010, U.S. EPA expanded its Greenhouse Gas Reporting Program to reporting by facilities that inject CO2 streams underground under Subpart RR. 75 Fed. Reg. 75,060.   U.S. EPA previously issued a final rule that requires reporting by sources that capture CO2 streams under Subpart PP.  74 Fed. Reg. 56,260 (Oct. 30, 2009).  Second, on December 10, 2010, U.S. EPA broadened the underground injection control (UIC) program under the Safe Drinking Water Act by establishing a new class of injection well called Class VI and set minimum requirements for injection of CO2 for purposes of geologic sequestration.  75 Fed. Reg. 77,230.  The UIC Class VI injection well standards were developed to protect underground sources of drinking water during geologic sequestration of CO2. The final rule sets standards for Class VI well permitting, geologic site characterization, area of review delineation, corrective action activities, well construction and operation, mechanical integrity testing, monitoring, post-injection site care, financial responsibility, and closure.  See 76 Fed. Reg. 48,073, 48084/2-3.  The UIC regulations specifically preclude CO2 streams that are defined as hazardous waste from being injected into Class VI wells.  See id. at 48,088/2. 

During the rulemaking proceedings for the UIC Class VI wells, comments submitted to U.S. EPA raised questions concerning the applicability of RCRA to CO2 streams being geologically sequestered. Could the compressed CO2 be considered a solid waste? And if so, could the CO2 be considered a hazardous waste?  If CO2 streams in geologic sequestration activities were classified as hazardous waste subject to RCRA Subtitle C, this would significantly deter use of CCS technology. 

Generally, commenters opposed treating a CO2 stream as a RCRA hazardous waste asserting that it neither is a listed hazardous waste nor exhibits a hazardous characteristic. Some commenters asserted that a CO2 stream was not even a solid waste.  Other commenters asserted that the CO2 in the presence of water could exhibit the RCRA corrosivity characteristic. Some commenters noted the potential for some CO2 streams to meet the definition of hazardous waste due to low concentrations of contaminants or additives introduced during the CCS process.  In addition, some commenters questioned the appropriateness and feasibility of applying the toxicity characteristic leaching procedure (TCLP) used under RCRA to supercritical CO2 streams.  Finally, some commenters asked whether the CO2 streams could be better managed under the UIC Class VI regulations than the RCRA hazardous waste regulations.

U.S. EPA disagreed with those commenters who asserted that a CO2 stream was not even a solid waste, stating unequivocally that a “CO2 stream injected into a Class VI well for purposes of geologic sequestration is a RCRA solid waste.”  76 Fed. Reg. 48,073, 48,077-78.  U.S. EPA also explains that CO2 streams are not included under the Bevill exemption at 40 CFR § 261.4(b)(4) because only wastes included in the regulatory determinations based upon the statutorily mandated study and reports to Congress are covered by the Bevill exemption and CO2 was not included.  Id. at 48,078/1-2.  Coal combustion residuals are an example of wastes covered by the Bevill exemption and therefore not subject to hazardous waste regulation under RCRA Subtitle C.  U.S. EPA also states that no hazardous waste listings apply to captured CO2 streams and that therefore a captured CO2 stream can only be defined as hazardous waste if it exhibits a hazardous waste characteristic.  Id. at 48,078/3.

U.S. EPA states it “has little information to conclude that CO2 streams would qualify as RCRA hazardous wastes.”  Id. at 48,079/1.  To gain a better understanding of the nature and characteristics of CO2 streams captured from emission sources, U.S. EPA requested “analytical data on the physical and chemical characteristics of captured CO2, including the concentrations of hazardous contaminants, CO2 content, information on the type of CO2 capture process used, and how the samples were collected and analyzed.”   Id. at 48,079/3.  Assuming the proposal is finalized, U.S. EPA also commits to reviewing new research, data, and information related to the conditional exclusion with respect to the nature and composition of the CO2 stream as well as compliance with the conditions of the exclusion.  The reviews would occur every six years and be coordinated with the six-year review of the UIC Class VI final rule.  Id. at 48,088/1-2.

As U.S. EPA notes, the UIC Class VI regulations require the owner or operator of an injection well to provide an analysis of the physical and chemical characteristics of the CO2 stream.  The analysis is to be provided at the time of the permit application and periodically during operation.   The UIC Class VI regulations also authorize U.S. EPA or the permitting authority to add specific testing or chemical/waste limitations to the permit to prevent endangerment of underground sources of drinking water or to assure that the unauthorized wastes are not injected with the CO2 stream.  

If finalized, a CO2 stream that is conditionally excluded from the definition of hazardous waste would not be subject to the RCRA land disposal restriction (LDR) requirements.  Owners and operators of UIC Class VI wells are required to demonstrate at the time of the permit application and periodically during operation of the well that there is no endangerment of underground sources of drinking water, and U.S. EPA interprets these UIC Class VI isolation requirements as meeting the objectives of the RCRA LDR requirements.  Id. at 48,085-86. 

Conditionally excluded CO2 streams would also not be subject to RCRA corrective action.  Again, U.S. EPA concludes that enforceable requirements in the UIC Class VI final rule to develop, maintain, and update an emergency and remedial response plan and to undertake emergency or remedial response action for any unauthorized releases from the well or injection are sufficient to correct permit violations and other situations that may pose a risk to underground sources of drinking water.  Id. at 48,086.  

U.S. EPA concludes that the current regulatory structure for geologic sequestration of CO2, including the proposed conditions, if finalized, to be sufficiently protective of human health and the environment.  Id. at 48,086/2.    To avoid duplicative and unnecessary regulation, U.S. EPA is proposing a conditional exclusion from the definition of hazardous waste for CO2 managed for geologic sequestration.    

Failure to meet the conditions results in the loss of the exclusion. Under the proposal, a violation of a condition at any point in the management of a CO2 stream would result in that CO2 stream being subject to all applicable Subtitle C regulatory requirements, from the point of generation. To illustrate, U.S. EPA explains that: “a violation of a condition at a UIC Class VI facility…would mean that in addition to the UIC Class VI facility, the generator and transporter would also be considered to be managing (or to have managed) a hazardous waste.”  Id. at 48,087-88.  U.S. EPA also notes that RCRA imminent and substantial endangerment provisions would continue to apply to conditionally excluded CO2 streams “even if the CO2 stream does not otherwise meet the regulatory definition of hazardous waste.”  Id. at 48.088.

Because the proposed rule would eliminate the hazardous waste requirements for those CO2 streams that would otherwise meet the definition of hazardous waste, when those streams are managed in accordance with certain conditions, the proposed exclusion is less stringent than the Federal program.  Therefore, states like West Virginia which have authorization to administer their own hazardous waste program in lieu of the Federal program are not required to adopt the conditional exclusion if finalized.  Further, in the case of captured CO2 streams transported across state lines for injection in a Class VI well located in another state, for the conditionally excluded waste to be managed as excluded from Subtitle C from point of generation to injection in a UIC Class VI well, the state where the waste is generated, the states through which the waste passes, and the state where the UIC Class VI well is located must all adopt the exclusion.

On September 9, 2011, U.S. EPA published a technical correction to the proposed rule.  76 Fed. Reg. 55,846 (Sept. 9, 2011).  The correction pertains to the paperwork burden estimates for those facilities that would be taking advantage of the conditional exclusion.  The estimates actually identified in Section VII.B of the preamble to the proposed rule were incorrect, but the burden estimates referenced in the separate Information Collection Request document that is in the docket for the proposed rule are correct. 

Comments on the proposed rule were due October 7, 2011, and can be found at http://www.regulations.gov under the docket identification number for the proposed rule, EPA-HQ-RCRA-2010-0695.  Comments on the technical correction notice and/or supporting Information Collection Request can also be found in the docket for the proposed rule. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

WVDEP Approved Proposed Waste Rules for 2012 Legislature

In June 2011, the West Virginia Department of Environmental Protection (WVDEP) proposed revisions to two waste rules for the 2012 legislative session.  Following a public hearing and the end of the public comment period on July 12, 2011, the WVDEP filed its agency approved proposed rules the end of July 2011.  The two rules, which are currently available on the West Virginia Secretary of State’s website at: http://www.sos.wv.gov/administrative-law/modified/Pages/default.aspx,   are:  (1) West Virginia Solid Waste Management Rule, 33 CSR 1; and (2) West Virginia Hazardous Waste Management Rule, 33 CSR 20.  The WVDEP’s Response to Comments on the proposed revisions to Solid Waste Management Rule and the two agency approved proposed rules are discussed below.   

Solid Waste Management Rule:  Only two commenters – Waste Management and the West Virginia Solid Waste Management Board – submitted written comments on the proposed revisions to the West Virginia Solid Waste Management Rule, 33 CSR 1.  Both commenters focused on the proposed addition to the list of general requirements applicable to solid waste landfill operators at Section 4.6.a.I.U that the operator “prevent and eliminate conditions not otherwise prohibited by this rule that are harmful to the environment or public health or that create safety hazards, odors, dust, noise, unsightliness, and other public nuisances.”  Both commenters found the language lacking in objective criteria. 

Waste Management objected, asserting that: 

There are specific environmental impacts that the landfill is obligated to assess and mitigate – inclusive to safety, emissions, noise, and off-site impacts. These specific criteria also provide a description of the issue and measureable compliance requirements. We propose that the language as currently found in this rule be retained without addendum – unless specific and measurable criteria are provided for the additional impacts, if any, not already provided in the rule. 

The West Virginia Solid Waste Management Board (Board) also objected, stating that: “the proposed language offers a subjective standard that could complicate the permitting and performance standards already set forth in the Rule, and could lead to complaints and petitions that would be difficult to remedy”.  In its comments, the Board noted the specific sections in the existing Rule that already address many of the items in the proposed revisions as follows: 

Section 3.4 of the Rule addresses many of the items in the proposed revision during the permitting stage. It also allows the Secretary to request further information on other impacts that are deemed necessary. Section 3.9 of the Rule addresses dust, surface water runoff, visual impacts, and operation of the facility in the Environmental Assessment of the permit application. Section 4.5 of the Rule specifically lists Dust Control as a performance Standard, and Section 4.6 of the Rule lists odor as a concern with Daily Cover. 

The Board also explained that although noise which was not expressly covered under the existing Solid Waste Management Rule, this item had been considered in establishing the boundary limits in the Rule.  The Board further explained that while safety hazards were also not expressly covered under the existing Rule, the “term safety hazards could be problematic as it does not establish whether this is on site, off site, or both. Without definition, various operations or impacts could be interpreted as a safety hazard by different persons.” 

In regards to tracking of mud and debris onto public rights-of-way, the Board suggested adding a provision to the Rule that would specifically address this problem. Specifically, the Board suggested adding a provision that prohibits the tracking of mud and other debris from the site onto public rights-of-way to Section 4.5.c.2.I, which discusses the design requirement for surfacing of an access road. 

Rejecting the two commenters’ concerns, the WVDEP responded that: 

The purpose of the proposed language is to regulate solid waste landfill facilities to prevent public nuisances not otherwise covered by this rule, (such as mud on public roads) in and around the communities they serve. DWWM believes the proposed language addresses these concerns. 

For the text of the WVDEP approved proposed Solid Waste Management Rule that was filed July 29, 2011, including the two written comments and WVDEP’s Response to Comments, click here.  For a summary of WVDEP’s proposed revisions for which no written comments were filed, see article titled “WVDEP Proposes Revisions to Waste Rules” posted on the Jackson Kelly PLLC Energy & Environment Monitor on July 6, 2011.

Hazardous Waste Management Rule:  No written comments were submitted on the proposed revisions to the West Virginia Hazardous Waste Management Rule, 33, CSR20.  Hence, the proposed revisions in the original proposed rule and the agency approved proposed rule are the same.  In addition to incorporating federal updates, the proposed revisions would also allow for the issuance of a RCRA standardized permit rather than an individual permit to RCRA treatment, storage, and disposal facilities (TSDFs) for containers, tanks, and containment buildings.  The standardized permit will streamline the RCRA permitting process for TSDFs that are not trying to burn the hazardous waste.    The proposed revisions would also grant authority to the Public Service Commission to regulate the transportation of hazardous waste by roads and highways as well as railroads and would clarify that the Division of Highways also regulates the use of state highways for the transportation of hazardous waste.  For the text of the WVDEP approved proposed Hazardous Waste Management Rule that was filed July 28, 2011, click here.  For a summary of the proposed revisions, see article titled “WVDEP Proposes Revisions to Waste Rules” posted on the Jackson Kelly PLLC Energy & Environment Monitor on July 6, 2011.

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

Use of Flame-Retardant Clothing in Oil & Gas Operations

The Occupational Safety & Health Administration (“OSHA”) issued an enforcement policy to field inspectors for flame-retardant clothing in Oil & Gas Drilling, Well Servicing and Production-Related Operations.  This memorandum was intended to clarify OSHA’s policy citing the personal protective equipment (“PPE”) standard 29 CFR §1910.132(a), and for the failure to provide and use flame-retardant clothing (“FRC”) in oil and gas operations.  OSHA states this clarification is needed for Regional Administrators when inspections are conducted within the oil and gas industry. 

A flash fire is a fire that spreads rapidly through a diffuse fuel, such as dust, gas, or vapors from an ignitable liquid, without the production of damaging pressure. The intensity of a flash fire depends on the amount of gas or size of the vapor cloud. Hydrocarbon (oil and gas) flash fires generate temperatures of 1,000 to 1,900 degrees Fahrenheit. A flash fire requires oxygen and ignition source that is normally present in oil and gas related operations.  This could be in several forms, including but not limited to; electrical systems, handheld electrical tools, motors, generators, hot work activities, and static electricity.  

The potential for flash fires increase when the drilling process hits formations or zones of hydrocarbons and gas. Potential exposure to flash fires occurs when the drilling contacts an active gas or hydrocarbon zone.  The pressure from the underground gas or hydrocarbon could "kick" the well fluids up the hole to the drilling rig floor or platform causing a flash fire. If this kick is not contained or controlled by the blowout preventers (BOP) or rig engineering controls, OSHA states there is a high potential of a flash fire due to the presence of ignition sources on or in the vicinity of the drilling platform.  Potential flash fires can occur during servicing operations where wells that are active or in production involving the access and extraction of oil and gas.  Other servicing operations also include work on inactive wells, such as stimulating, plugging, or capping.  Production-related operations that may also have the potential for flash fires include transferring the well fluids to the surface, then separating, storing and gauging, or otherwise preparing the product for delivery.

Each of these operations typically uses both engineering and administrative controls to reduce, but may not fully eliminate, the potential for a flash fire. Flammable liquids or gas could be released and then migrate to ignition source because of an inadequacy or failure in these engineering and administrative controls. Examples of inadequacies/failures of engineering controls include BOP malfunction, hydraulic failure, gauge or indicator equipment error or malfunction, power disruption, and valve failure. Engineering controls are subject to failure due to inadequate design, installation, inspection, testing, and maintenance. Administrative control failures include deviation from standard operating procedures, failure to close valves, failure to activate the emergency shutdown system, and failure to activate the BOP. Administrative controls are subject to failure when procedures have not been adequately developed, implemented, audited, and enforced.

OSHA can cite 29 CFR §1910.132(a) for the failure to provide and ensure the use of FRC in oil and gas drilling, well servicing, or production-related operations when there is a potential for flash fire hazards.  During drilling operations, FRC is usually not needed during initial rig up and normal drilling operations prior to reaching active hydrocarbon zones, unless other activities warrant their use such as  fracing a previously drilled well while rigging a well in close proximity. A potential for flash fire exists when active gas or hydrocarbon zones are reached. OSHA states FRC shall be worn by exposed employees working on the well site prior to drilling into identified gas or hydrocarbon zones.  OSHA also states appropriate FRC shall also be worn when there is a history of fluid or gas kicks from underground producing zones.  Once FRC is identified for use, OSHA states employees should wear appropriate FRC until the final casing is cemented and the well is effectively closed. 

The potential for flash fire also exists in production-related operations that fall outside of drilling and well servicing. OSHA states that FRC needs to be determined during production-related operations, such as equipment openings (e.g., line breaking or valve changes), gauging, transfer of hydrocarbons, maintenance operations of production equipment, hot work operations, tank heating, using open flames or the start-up of operations.  

OSHA states other sections of the PPE standard may also apply to oil & gas operations.  These include 29 CFR §1910.132(b) where there is a failure to assure that “employee-owned” FRC is properly maintained and sanitary.  29 CFR §1910.132(c) may be cited where the employer fails to provide FRC that is of safe design and construction for work being performed. Employers may consult other standards such as National Fire Protection Association (“NFPA”) standards.  NFPA 2112 and 2113 may be used to help comply with this section.  OSHA may cite 29 CFR §1910.132(d) where the employer fails to conduct a hazard assessment to identify the potential for burn hazards where employees have occupational exposure(s) to flash fires.   

This article was authored by Linda Tennant, Acacia Environmental Group LLC.  For more information on the author see here.

 

References:          

“Enforcement Policy for Flame-Resistant Clothing in Oil & Gas Drilling, Well Servicing and Production Related Operations”; Occupational Safety & Health Administration, March 19, 2010; “Clarification of Terms “Active Hydrocarbon Zone”; Occupational Safety & Health Administration, October 19, 2010.

United States Small Business Administration Due Diligence Requirements for Loans

U.S. Small Business Administration (SBA) loans are a major component of the government’s program to stimulate the economy.  During the recently completed fiscal year, SBA loans exceeded $12 billion. 

The SBA requires an Environmental Investigation for all commercial property upon which a security interest is offered as security for a loan. The type and content of an environmental investigation to be performed varies with the risks of contamination. All lenders participating in the SBA 7(a) and Certified Development Company (CDC) loan programs follow the agency’s new requirements for environmental guidelines under SOP 50 10 5(D), environmental due diligence requirements.   The current SBA guidelines can be accessed through the following link: http://www.sba.gov/about-sba-services/7481/24141. These due diligence requirements apply to the estimated 1,200 banks that participate in the SBA loan programs. 

Properties are classified according to the NAICS code for the current and previous uses of the property that is associated with the loan.  SOP 50 10 5(D) lists those business classifications that are identified as environmentally sensitive industrial classifications.  All loans involving environmentally sensitive properties require an All Appropriate Inquiry (AAI) – Phase I environmental site assessment (ESA). 

The SBA has incorporated new requirements, which became effective on October 1, 2011, for environmental due diligence associated with the agency’s 7(a) and Certified Development Company (CDC) loan programs.  

A partial list of the recent changes to the SBA due diligence requirements includes the following: 

• If the property involved is not classified as environmentally sensitive and is currently or previously a non-industrial, multi-unit building consisting of at least four or more individual units, the environmental investigation may begin with an Environmental Questionnaire or an Environmental Questionnaire and an environmental database records review, depending on the amount of the loan.  If the Environmental Questionnaire or the environmental database records review indicates an elevated risk for contamination, a Phase I ESA will be required.

 

• Special Use Facilities, such as properties constructed prior to 1980 that will be used for daycare or child care must provide a lead risk assessment associated with lead based paint and testing for lead in drinking water.  Properties that have had onsite dry cleaning operations longer than five years require a Phase II environmental site assessment, in addition to the Phase I investigation.

 

• The SBA changed the qualification of the Environmental Professional (EP) performing the environmental due diligence to allow the EP to use a person that does not meet the requirements of an EP to assist in the AAI Phase I ESA with the provision that such work is conducted under the supervision or responsible charge of the qualified EP and the EP reviews and signs the report.

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

Vapor Intrusion Gaining Scrutiny at Petroleum Hydrocarbon Leak Sites

During 2002 the United State Environmental Protection Agency (EPA) Office of Solid Waste and Emergency Response (OSWER) published Draft Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soils (Draft Vapor Intrusion Guidance).  That guidance document stated that it was not intended for leaking underground storage tanks (LUSTs) involving petroleum hydrocarbons.  During June 2011 the EPA Office of Underground Storage Tanks (OUST) published a DRAFT Petroleum Vapor Intrusion Information Paper which is specific to vapor intrusion at petroleum UST sites and other light nonaqueous phase liquid (LNAPL) release sites.  The publication is available at http://www.epa.gov/oust/pubs/draft-pvi-information-paper.pdf.  Vapor intrusion (VI) is the migration of volatile or semi-volatile chemical compounds from contaminated soil and/or groundwater through the subsurface into nearby buildings.  

The DRAFT Petroleum Vapor Intrusion Information Paper provides detailed descriptions of the differences between petroleum hydrocarbons (PHCs) which may include gasoline, diesel fuel, and lubricants; and, chlorinated hydrocarbons (CHCs) such as degreasing solvents and dry cleaning chemicals as they behave under releases to the subsurface.  Both PHCs and CHCs are only partially soluble in water.  The separate phases are generally referred to as LNAP for the petroleum constituents and dense nonaqueous phase liquid (DNAPL) for the CHCs.  PHCs are generally biodegrade in groundwater and in the unsaturated zone under aerobic conditions.  The PHCs are predominately lighter than water and generally float above the groundwater table (LNAPLs).  The CHCs biodegrade more slowly that PHCs and do so under anaerobic conditions.  The CHCs are heavier than water and generally sink within the groundwater table.  Volatile organic compounds from both PHCs and CHCs can migrate from the groundwater and unsaturated zone to enter buildings through floors or other migration pathways such as utility lines and sumps. 

The DRAFT Petroleum Vapor Intrusion Information Paper provides information regarding investigation considerations for petroleum vapor intrusion (PVI) sites.  Those considerations include the availability of oxygen to encounter the petroleum constituents to provide possible biodegradation in the subsurface and investigative measures to characterize the site to determine how PVI is occurring through the contaminated subsurface so that remedial measures are targeted to obtain the maximum remediation for the incurred costs. 

It is EPA’s intent is to proceed with developing a strategy for investigating petroleum hydrocarbon release from regulated UST site to determine if PVI is a concern.  The PVI guidance will be intended to provide information regarding the following: 

• What criteria are used to evaluate the potential for PVI;
• The development of a conceptual site model that addresses the potential for PVI;
• The characteristics of PVI and how it is different than chlorinated vapor intrusion (CVI);
• The design of a field investigation to assess the potential for PVI;
• The use of modeling to support a data-based PVI assessment; and
• Guidance on community involvement at PVI sites.

EPA has developed a stakeholders work group for development of guidance on PVI sites.  It is likely that a coordinated program will be developed for leaking petroleum USTs sites throughout the country in the near future.  This development by the EPA follows the revised ASTM Vapor Intrusion Standard E 2600-10, Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions, published in June 2010.

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

Proposed Emergency and Hazardous Chemical Inventory Forms (Tier I and Tier II) Changes

On Monday August 8, 2011 the United States Environmental Protection Agency proposed to revise the Emergency and Hazardous Chemical Inventory Forms (Tier I and Tier II) under Section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA) to add new data elements and revise some existing data elements.  Comments must be received on or before October 7, 2011.  

EPA is proposing the following changes to the Tier I and Tier II forms.   

Facility Identification

Under facility identification EPA is proposing to add new data elements for facility phone number, latitude and longitude and number of full-time employees.  In addition EPA is proposing the addition of facility identification numbers used in the Risk Management Program (Chemical Accident Prevention under section 112(r) of the Clean Air Act and the Toxic Release Inventory (TRI) program under section 313 of EPCRA.  

In addition to the number of full-time employees local emergency responders requested that EPA require facilities such as hotels, colleges, universities and convention centers to report the total number of people that may occupy a building at any given time.  US EPA is not including this in proposed changes but is accepting comments on this data element. 

Name of the Facility’s Parent Company and Owner or Operator of the Facility

States and LEPCs have informed EPA that some facilities have sites in remote locations and do not have operators present at all times.  EPA is proposing to require facilities to provide information on the facility’s parent company and the owner or operator of the facility, such as name, address and phone number, as well as the Dun and Bradstreet number of the facility’s parent company.  EPA is also proposing that the facility owner or operator provide their e-mail address.   

Facility Emergency Coordinator

Currently a facility must inform the LEPC of any changes to the facility emergency coordinator within 30 days after changes have occurred. EPA is proposing that the facility emergency coordinator be identified on the Tier I and Tier II forms, since LEPCs and other emergency response coordinators may need this information during an emergency. 

Tier I and Tier II Information Contacts

Since the information reported under EPCRA section 312 is used by LEPCs to improve emergency response plans, these entities may need to contact the facility regarding information that is reported on the Tier I and Tier II reporting forms.  EPA is proposing to require the name, title, phone number and e-mail address of the person knowledgeable or responsible for completing the information on the Tier I and Tier II forms.

Subject to Emergency Planning Under Section 302 of EPCRA 

LEPCs requested that EPA require facilities to report if they are subject to emergency planning notification under EPCRA section 302 to improve the emergency response plans in their community.  EPA is proposing to add a new data element to indicate if facilities are subject to the emergency planning notification under EPCRA section 302. 

Subject to Chemical Accident Prevention Under Section 112(r) of the Clean Air Act

In addition to the information reported under EPCRA section 312, LEPCs and States use the information reported in RMPs to improve the emergency response plans in each community.  In order to better serve this purpose, EPA is proposing to add a new data element to both the Tier I and Tier II forms to indicate whether the facility is subject to chemical accident prevention under section 112(r) of the CAA. 

Range Codes and Ranges for Reporting Maximum Amount and Average Daily Amount

In order for the States, local agencies and emergency response officials to have information on the maximum amount and average daily amount that are closer to the actual amounts present at the facility, EPA is proposing to narrow the ranges that are in the existing regulations.  The existing and proposed range codes are presented in the table below.  

Range Codes	Current Range (in lbs)	Proposed Range (in lbs)
01	0 – 99	0 – 99
02	100 – 999	100 – 499
03	1,000 – 9,999	500 – 999
04	10,000 – 99,999	1,000 – 4,999
05	100,000 – 999,999	5,000 – 9,999
06	1,000,000 – 9,999,999	10,000 – 24,999
07	10,000,000 – 49,999,999	25,000 – 49,999
08	50,000,000 – 99,999,999	50,000 – 74,999
09	100,000,000 – 499,999,999	75,000 – 99,999
10	500,000,000 – 999,999,999	100,000 – 499,999
11	1 billion – higher than 1 billion	500,000 – 999,999
12	--	1,000,000 – 9,999,999
13	--	10,000,000 – Greater than 10 million

Specific Tier II form proposed revisions

 EPA is proposing to revise some existing data elements on the Tier II federal inventory form.  

Chemical Information

EPA is proposing to modify the chemical information reporting section of the Tier II inventory form to make it more user-friendly for States and local agencies, as well as the emergency response officials. This revision will also benefit facilities by clarifying how to report mixtures on the Tier II form.  In order clarify the reporting of pure chemicals vs. mixtures, the proposed Tier II form has separate entries for mixtures and pure chemicals.  The entry for mixtures includes a separate line for mixture name, amount of mixture present, the ESH(s) name, and amount of EHS(s) present.  Facilities still have the option to report the mixture or the hazardous chemical component.  

Storage Types and Conditions

The Tier II form currently requires facilities to report the codes for types of storage and storage conditions.  In order to make the form more user-friendly and also to have information readily available to emergency response officials in an emergency, EPA proposes that facilities list the types of storage and storage conditions on the Tier II form rather than noting the reporting the codes.   

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.