Defining “Waters of the US” – A Continuing Saga

On July 12, the US Environmental Protection Agency (EPA) and the Army Corps of Engineers continued the seemingly interminable project to construct a working, regulatory definition of “Waters of the United States” (or, WOTUS) for various environmental regulatory programs administered under Title 40 of the Code of Federal Regulations (CFR). This “supplemental notice of proposed rulemaking” purports “to clarify, supplement and seek additional comment” on the July 2017 proposal to repeal the 2015 Rule Defining Waters of the United States” which amended previously existing sections of the CFR that the 2015 Rule sought, well, to clarify.

The current proposal, if finalized, will repeal the 2015 Rule and restore the text that existed before publication of the 2015 Rule, “as informed by guidance in effect at that time.” EPA has previously (February 2018) published a rule extending the applicability date of the 2015 Rule to February 2020, and implementation of the 2015 Rule has been stayed by judicial proceedings, so in effect we’ve been working with the preexisting text, informed by EPA’s prior guidance, since that time.

Meanwhile, whether groundwater can ever be considered “Waters of the US” under whatever rules are in place continues to be a hot topic.

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Hazardous Substance Spill Prevention: The Proposed Action is No Action at all!

The US Environmental Protection Agency (EPA) has issued its proposed rulemaking pertaining to the issuance of regulations for the prevention of spills or releases of Clean Water Act (CWA) hazardous substances. The proposal, published in the June 25 Federal Register, concludes that no additional regulatory requirements are necessary at this time.

EPA’s review of whether to propose new regulations to prevent releases of hazardous substances was prompted by a 2015 lawsuit that charged EPA with failure to comply with its duty under CWA Section 311 to issue regulations for the prevention and control of hazardous substance spills from on-shore facilities. A February 2016 Consent Agreement established a schedule for EPA to sign “a notice of proposed rulemaking pertaining to the issuance of the Hazardous Substance regulations” and take final action after notice
and comment.

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Once In, Always In… Isn’t!

On January 25, the US Environmental Protection Agency (EPA) issued a guidance memorandum withdrawing the “once in always in” policy for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act. With the new guidance, sources of hazardous air pollutants previously classified as “major sources” may be reclassified as “area” sources when the facility limits its potential to emit below major source thresholds. Sounds logical, right?

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Nanotechnology and TSCA Reporting

(Resisting the urge to make an obscure Mork and Mindy reference – or an even more obscure mention of Fantastic Voyage…)

EPA has issued guidance on complying with the new Nanotechnology Reporting and Recordkeeping Rule, published in January with an effective date that has been extended to August 14, 2017. The rule establishes one-time reporting and recordkeeping requirements for certain chemical substances when they are manufactured or processed at the nanoscale (i.e., materials that are solids at standard temperature and pressure; that are manufactured or processed in a form where any particles, including aggregates and agglomerates, are in the size range of 1-100 nanometers – that’s one to one hundred billionths of a meter – in at least one dimension) for the purpose of demonstrating one or more unique, size-dependent properties that would not be present in larger materials. Reporting for existing nanomaterials that have been manufactured or processed in the three years prior to the effective date will be due by August 14, 2018.

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ISO 14001:2015 – Time, Gentlemen!

The 2015 revisions to ISO 14001 International Standard, Environmental management systems – Requirements with guidance for use, become mandatory in September 2018. An organization that has obtained certification to the standard for its environmental management system (EMS) should update the EMS as needed to conform to the revised requirements at least six months to one year in advance of the effective date. So, if you’ve been putting off review of your EMS and its conformance to the “new” standard, the time to get to that is… now!

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Rolling Back the Definition of “Waters of the US”: Good Move or Bad?

The US Environmental Protection Agency (EPA) and Army Corps of Engineers are set to roll back the regulatory definition of “waters of the United States” according to a proposal published on June 27. The definition was amended under the controversial 2015 “Clean Water Rule”, which critics charged would extend federal regulatory protection to isolated ponds and wetlands, usually dry depressions with no conceivable connection to interstate waterways, even puddles formed in a heavy rain. The 2015 rule has been stayed since October of that year, so the definition previously in place has remained in effect. This proposed rule will re-codify the previous definition as it existed prior to the 2015 rulemaking.

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Florida’s Public Notice of Pollution Rule – What It Requires

In late summer 2016, Florida’s environmental tranquillity was shattered by two high-profile events: The failure of a gypsum stack liner at the Mosaic Fertilizer plant in New Wales led to a loss of wastewater, potentially contaminating groundwater; and discharges of domestic wastewater from City of St. Petersburg facilities to Tampa Bay (granted, these incidents paled in comparison to the potential catastrophe threatened a month later by Hurricane Matthew’s dance along the state’s eastern shore, but at least we had people to blame). In response, the state issued an emergency rule requiring enhanced public notice of pollution incidents. The rule required that a responsible party notify the Florida Department of Environmental Protection (FDEP), local government and general public of a “pollution incident” within 24 hours of discovery.

The Florida legislature has now codified the Public Notice of Pollution requirements at Section 403.077, Florida Statutes, effective July 1, 2017. The statutory requirement addresses what were the two issues of contention raised in the emergency rule: What is “pollution” and what are the threshold amounts that trigger the notification requirements?

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EPA Revises “All Appropriate Inquiries” Rule for Forested and Rural Lands

The US Environmental Protection Agency (EPA) has published a Direct Final Rule to to confirm that the recently updated ASTM Standard E2247-16: Phase I Site Assessment Process for Forestland or Rural Property satisfies the due diligence requirements for the “bona fide prospective purchaser” and “innocent landowner” defenses under CERCLA (as well as the “contiguous property owner” protection). These defenses protect the purchaser or landowner from liability associated with potential contamination of the property.

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DC Court Shreds EPA Solid Waste Recycling Rule

The Court of Appeals for the DC Circuit has vacated provisions of EPA’s 2015 Definition of Solid Waste Rule which addressed recycling of hazardous secondary materials (i.e., spent materials, byproducts and sludges). The court’s majority took issue with (1) one of four tests to demonstrate that recycling by or under the control of the generator was legitimate, and not a “sham” effort to disguise disposal, and (2) the “Verified Recycler Exclusion”, which excluded recyclable secondary materials from the definition of solid waste and therefore from regulation as hazardous waste, provided that the recycling facility has a hazardous waste facility permit or a variance from permit requirements granted by EPA or the State.

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What’s New for 2016 TRI Reporting (and a gentle reminder)

The July 1 due date for Toxic Release Inventory (TRI) reporting (i.e., Form R or Form A reports) is again coming up. A few notable changes to reporting requirements affect 2016 submissions:

  • A new chemical has been added to the TRI reporting list for 2016. In November 2015, EPA added 1-bromopropane, used primarily in various industries as a solvent/degreaser. If the reporting thresholds for manufacture, processing or other use of this chemical were exceeded at your facility in 2016, it must be reported.
  • The TRI-ME web application for report preparation and submission has been updated! We have done a run-through of the revised program and found that, just as EPA claims, the “modernized” version of TRI-ME web does make the process more streamlined and simplified. It just looks better, too.

Remember, you must use the TRI-ME web application (accessed through EPA’s Central Data Exchange at cdx.epa.gov) to submit and certify annual TRI reports. If you’re unfamiliar with the application or need help with any aspect of TRI reporting, please contact T. Cozzie Consulting for assistance.