Our Insights

Environmental News Briefs – Fall 2019

November 13, 2019

News briefs were originally published in Currents, POWER’s quarterly Environmental newsletter.



On October 22, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published a final rule to repeal the 2015 “waters of the United States” (WOTUS) definition under the Clean Water Act. The agencies’ intent in repealing the 2015 WOTUS rule is to improve national regulatory consistency by returning all 50 states to the longstanding regulatory framework that existed prior to the 2015 rule. The final rule will take effect starting December 23, 2019.
Contact: Gino Giumarro
(207) 869-1245

EPA Proposes NSR Revision for Project Emission Accounting

On August 9, EPA proposed a revision to the New Source Review (NSR) applicability regulations that clarifies the use of “Project Emission Accounting” during Step 1 of the two-step NSR major applicability test. This revision is to further support the March 2018 EPA memorandum: Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program. NSR regulations require existing major sources planning a modification to follow a two-step applicability test. The EPA’s past rule interpretation only allowed project emission increases to be considered in Step 1 while any project emission decreases were evaluated during the Step 2 netting phase. The proposed revision would allow both project emission increases and decreases or “Project Emission Accounting” during Step 1.
Contact: Steven Babler
(913) 402-4215

USFWS, NMFS Approve Revisions to Endangered Species Act

On October 28, proposed revisions to the Endangered Species Act (ESA) by the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) were officially published in the Federal Register. The ESA serves as the United States’ primary mandated legislation focused on the protection of critically imperiled species from impacts of human expansion. The approved changes will directly affect the definitions of how threatened and endangered species are classified, how critical habitat is determined and requirements during agency consultation. Specifically, revisions to Section 4 relate to the requirements and methods implemented when adding or removing species from listing as well as revising the requirements when establishing critical habitat for individual species. Section 7 changes address when and if consultations with other federal agencies are necessary and to what extent. The revisions to these sections are meant to improve the overall efficiency of implementing the ESA requirements and to streamline the environmental review process.
Contact: Aaron Hoefer
(210) 951-0761

FERC Finalizes Guidance for HDD Plans

On October 9, the Federal Energy Regulatory Commission (FERC) announced that the Office of Energy released finalized guidance concerning horizontal directional drill (HDD) practices used for natural gas projects. The purpose of the document, Guidance for Horizontal Directional Drill Monitoring, Inadvertent Return Response, and Contingency Plans (HDD Guidance), is to improve the quality and consistency of submitted HDD Plans in order to expedite the FERC review process and reduce the need for supplemental data requests. The HDD Guidance identifies preferences for document format and data presentation as well as the technical components of an HDD Plan (e.g., use of drilling fluid additives, conducting geotechnical investigations, and HDD operational conditions and response actions). In addition, the guidance identifies information that, although not required by regulation, is often considered as part of the FERC review process.
Contact:  Stacey Atella
(303) 716-8932

EPA to Re-Propose Regulation Science Transparency Rule

At a congressional hearing in September, EPA Administrator Andrew Wheeler indicated that the Agency will not be issuing a final version of its controversial proposed rule to limit the use of scientific studies in developing major new regulations by the end of this year, as originally planned. Instead, the Agency will issue a supplemental proposal in early 2020 applicable to future rule-makings. The proposed rule, originally published in April 2018, was intended to ensure that the science underlying its regulatory actions, including all relied-upon data and models, is publicly available in a manner sufficient for independent validation. EPA decided on the re-proposal after receiving more than 600,000 comments from the public on the proposed rule.
Contact: Lou Corio
(410) 312-7912

Kirtland’s Warbler Removed from the Endangered Species List

On October 8, the USFWS removed the Kirtland’s warbler from the federal Endangered Species List. Reduced to just 167 nesting pairs in the mid-1970s, the Kirtland’s warbler population has steadily increased to over 2,000 pairs. Historically, the small songbird was reliant on wildfires to maintain its breeding habitat in young jack pine forest stands. Today, due to modern wildfire suppression, the species is mainly reliant on conservation efforts. While the vast majority of nesting occurs in northern Michigan, it can also be found in northern Wisconsin and Ontario. The 2,000 documented nesting pairs is double the goal identified in the species’ recovery plan and populations have continued to grow and exceed their recovery goals for the past 17 years.
Contact: Ben Bainbridge
(208) 788-0391

MACT Standards for Ethylene Production

On September 5, EPA proposed amendments to the Ethylene Production Maximum Achievable Control Technology standard based on the Clean Air Act-mandated residual risk and technology review for the source category. EPA seeks to clarify startup, shutdown and malfunction (SSM) requirements including eliminating exemptions during SSM events and proposing alternative work practice standards for certain SSM events, such as decoking of ethylene cracking furnaces and pressure relief device releases. Additionally, EPA is proposing to strengthen the heat exchange system and storage vessel control requirements, add monitoring requirements for flares and require electronic submission of notification of compliance status and performance test reports. Comments on the proposed rule are due November 25, 2019.
Contact: Tiffany Dillow, REM
(410) 312-7903

Congress Discusses Funding for State Wildlife Action Plans

On October 17, a subcommittee of the House Committee on Natural Resources held a legislative hearing to discuss increased funding for the Recovering America’s Wildlife Act (H.R. 3742). Introduced earlier this year to the U.S. Congress, the bill would allow up to $1.4 billion in annual funding for implementing State Wildlife Action Plans (SWAP) across the nation. Developed to identify imperiled species in each state and the specific actions to take for conservation and recovery, SWAPs ultimately prevent at-risk species from being enlisted under the ESA. In previous years, funding for execution of each SWAP was significantly inadequate; however, this bill would meet the annual needs for conservation efforts of over 12,000 species of greatest concern. A key element of each plan requires partnerships between regulatory agencies, cities, counties and commercial industries.
Contact: Melinda Stevens
(702) 277-2986

OSHA Requests Feedback on Respirable Crystalline Silica Standard

On August 15, the Occupational Safety and Health Administration (OSHA) requested information, data and comments on possible engineering and work practice control methods that are not currently included for 18 common construction tasks (known as Table 1) of the Respirable Crystalline Silica standard for Construction. Information submitted would allow OSHA to consider new control methods for equipment that generates exposures to silica under different workplace conditions. Expanding Table 1 to include additional engineering and work practice control methods, equipment and tasks could provide employers with more flexibility and reduce regulatory burdens while maintaining protections for employees.
Contact: Molly McKenna, CHMM
(512) 579-3837


PADEP Developing RACT 3 Requirements

On October 17, the Pennsylvania Department of Environmental Protection (PADEP) presented an overview of the upcoming third update to the Reasonably Available Control Technology (RACT 3) requirements. To satisfy federal mandates, the PADEP will be re-evaluating existing RACT requirements and considering the “lessons learned” from the RACT 2 rulemaking. Case-by-case RACT 2 determinations submitted to EPA will be resubmitted as satisfying RACT 3 requirements. Specifically, the PADEP will re-evaluate all presumptive RACT 2 requirements; clarify RACT requirements for combustion units firing multiple fuels; evaluate NOx RACT requirements for large combined-cycle natural gas-fired turbines; streamline boiler tune-up procedures; and re-evaluate presumptive emission limitations and averaging periods for large electric generating units. Finally, the PADEP will include notification requirements for all facilities that are subject to RACT 3, and facilities will need to explain how they will comply with the requirements, even if all sources are subject to presumptive RACT.
Contact: John Schmelzle
(717) 942-1203

TCEQ Hosts Public Hearing on Edwards Aquifer Protection Program

To promote public input on the regulatory process, the Texas Commission on Environmental Quality (TCEQ) hosted public hearings on October 28 and 29 to receive written or oral comments related to the Edwards Aquifer Protection Program. Specific feedback on RG-348 (Technical Guidance), innovative technology, Aggregate Production Operations and compliance monitoring of best management practices was requested. Comments received during the meeting will be published by TCEQ.
Contact: Julie Morelli, P.G., REM
(210) 951-6424

Ohio Governor Orders Analysis of Drinking Water for PFAS Compounds

On September 27, Ohio Governor Mike DeWine directed the Ohio EPA and the Ohio Department of Health (ODH) to develop an action plan by December 1, 2019, to test public and private water systems for the presence of per- and polyfluoroalkyl (PFAS) compounds. PFAS include a large number of man-made chemicals used in a variety of products, such as carpeting, nonstick cookware and food packaging. The Governor’s directive specifically targets drinking water systems located “near known sources” of PFAS, such as firefighting training sites and manufacturing facilities. The Governor’s directive, however, does not define what is considered “near” a PFAS source, nor does it define how a “known source” of PFAS will be determined, leaving unanswered questions for affected industries and water systems operators. These questions, and others, will need to be addressed as the requested action plan is developed by the EPA and ODH.
Contact: Dennis Schucker, Ph.D., P.G.
(513) 326-1549

KDEP Announces 2020 Funding for Water Pollution Control Projects 

On October 18, the Kentucky Energy and Environmental Cabinet’s Department for Environmental Projection announced they are accepting applications for 2020 funding of nonpoint source (NPS) pollution control projects. Kentucky receives federal funding through Section 319(h) of the Clean Water Act to implement NPS pollution control programs. Funds can be used to pay for up to 60 percent of the total cost of each project; a 40 percent nonfederal match is required. Priority will be given to projects involving watershed plan development and implementation for impaired waters, source water protection areas and the protection of special-use waters with identified threats. Other eligible projects include those aimed at cleaning up polluted waterways by use of best management practices technology, demonstrations, technical training, inspections and compliance, education and outreach to improve water quality. Applications including the project proposal must be submitted by December 3, 2019.
Contact: Lindsey Branham
(513) 326-1565

PADEP Finalizes Management of Fill Policy

The PADEP finalized its significantly revised Management of Fill Policy in early November 2019. The policy will go into effect on January 1, 2020, and may be applicable to any fill not placed prior to this date. Important changes include new and revised definitions, modifications to due diligence and sampling/analytical requirements (including a project-specific sampling plan), incorporation of Act 2 numeric standards (some of which are lower than the existing policy), allowance for background conditions, and possible EPA involvement if PCBs are present.
Contact: Jim Young, P.G.
(717) 942-1202

TCEQ Begins Discussions on 2021 TPDES MSGP Renewal

On October 18, the TCEQ Stormwater Stakeholders Group hosted a meeting to discuss the 2021 renewal of the TPDES Multi-Sector General Permit (MSGP) No. TXR050000. The TCEQ presented a series of preliminary proposed changes to the MSGP as part of the renewal process, including an increased focus on the electronic reporting of monitoring data, adjustments to benchmark monitoring levels for Sectors T and U, changes to the Notice of Intent and Notice of Change forms, modified requirements for Sectors J and L, and miscellaneous changes to improve the clarity of the text. The proposed changes to the TCEQ MSGP may be impacted by the issuance of the 2020 EPA MSGP. A draft of the 2020 EPA MSGP is anticipated to be released in late 2019.
Contact: Nathan Collier, CPESC
(210) 951-6425

Ohio Proposes Update to Primary Drinking Water Standards Rule

On October 9, the Ohio EPA proposed updates to the Primary Drinking Water Standards Rule. The proposed revisions include additional language to establish a triggered approach for evaluating the best treatment options for consecutive systems that have elevated Disinfection byproducts (DBP) levels. This would ensure wholesale water suppliers are responsible for conveying water that is below the maximum contaminant levels, thus allowing compliance with the Safe Drinking Water Act. The additional language would also help establish an effort between wholesale water suppliers and consecutive systems to work together to complete Operational Evaluation Level reports. The reports would address the location and source of the elevated DBP levels throughout the system.
Contact: Ben Mignery
(513) 326-1513