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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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 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.