Audit, Compliance and Risk Blog

Court Reinstates Delayed Accidental Release Prevention Revisions, While EPA Moves To Rescind Them

Posted by Jon Elliott on Tue, Oct 09, 2018

The ongoing administrative battle over the Environmental Protection Agency’s (EPA’s) Accidental Release Prevention (ARP) program requirements has had another skirmish. On August 17, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) lambasted EPA’s latest deferral of ARP requirement revisions as outside the agency’s Clean Air Act (CAA) authority, and otherwise “arbitrary and capricious,” and vacated that deferral. However, the Court did nothing about EPA’s pending proposal to rescind most of those changes and reinstate longstanding requirements that many see as inadequate.

What’s the Current Status of ARP Requirements?

ARP rules specify “regulated substances” and threshold quantities for which onsite incidents could produce harmful offsite consequences, “risk management plan (RMP)” requirements to be instituted by facilities in order to manage those risks, and associated procedural and reporting requirements. In the last week before President Obama left office, EPA completed a multi-year review of its ARP program, responding to his Executive Order Number 13650 from 2013 (I wrote about these revisions here). Then, when President Trump took office, EPA reversed course, repeatedly deferring the effective date of those revisions while the agency reviewed them. In June 2017 EPA issued the latest of these deferrals, citing pending petitions for review by industry groups, and the agency’s need to reconsider the matter to justify deferring the effective date of the (Obama era) revisions for 20 months.

In May 2018 EPA completed its review, and published a proposal in the Federal Register to rescind almost all these expansions and return ARP requirement to those in place before 2017 (I summarized the proposal here). EPA also included an alternative proposal that retained a few more elements, and requested public comment on both versions no later than July 30, 2018.

What Has the DC Circuit Just Decided?

The DC Circuit case was brought by environmental and health groups, supported by a number of state governments. They claimed that EPA’s 20 month deferral exceeded the three month limit provided the agency by the CAA. They also noted that the agency had offered no substantial justification for overturning a final decision (the January 2017 revisions) after a multi-year rulemaking.

The case was heard by a 3 judge panel of the DC Circuit (interestingly, the panel include Judge Brett Kavanaugh, whose nomination to the US Supreme Court is pending and who took no part in this decision). The remaining judges agreed with the plaintiff’s arguments, found EPA’s delay to be “arbitrary and capricious”, and vacated the deferral rule.

Now What?

With the deferrals gone, the 2017 revisions take effect as issued in the waning days of the Obama administration. After the first two Trump Administration deferrals, the revisions would have been effective in June 2017 with staggered compliance deadlines. Facilities were to ensure coordination of their onsite activities with offsite response agencies by March 2018, institute enhanced RMP activities by March 2021, and formally revise their RMPs by March 2022. On September 21, the Court issued another order directing EPA to begin enforcing the 2017 rules immediately. This means that the coordination requirements identified above are active, and other elements remain on their original phase-in schedule..

But EPA’s May 2018 proposal to rescind most of the January 2017 amendments was not part of this case, and so is unaffected. As of this writing EPA has not made any statement about further appeal of the August 2018 court decision, but it’s safe to assume that the agency is proceeding with its own May 2018 proposal – presumably paying attention to the procedural flaws highlighted in the court order. I expect EPA will eventually issue some version of its proposed regulatory roll-back, which will trigger further litigation about whether the dramatic change is justified by the rulemaking record.

Self-Assessment Checklist

Does the organization own or operate any facility with any “stationary source” subject to ARP requirements?

  • If so, has the organization considered the impacts on its operations and compliance position under potential revisions?

Where Can I Go For More Information?

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Tags: EPA, Environmental, Environmental risks, clean water

Environmental Justice Update

Posted by Rebecca Luman on Thu, Oct 04, 2018

On April 19, 2018, EPA released their Environmental Justice FY2017 Progress Report. The report commemorates the 25th anniversary of the Office of Environmental Justice (EJ), highlighting progress advancing EJ in minority, low-income, tribal, and indigenous communities. Among their 2017 successes, EPA documented for the first time measurable environmental outcomes in three program areas: fine particulate air pollution (PM2.5), small drinking water systems, and tribal drinking water systems. In each area, EPA measured significant improvements:

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Tags: Environmental, Environmental risks, site auditing, clean water, EPA

A Beaver’s Tale: Lessons Learned at Cuyahoga Valley National Park

Posted by Rebecca Luman on Tue, Jun 05, 2018

Growing up, my mother was instrumental in our family of eight taking camping trips each summer. By the time I was in 4th grade, I had been in 42 states, Canada and Mexico, and had never been on a plane. We explored, hiked, and camped in state parks, national parks, and forests, traversing the country, with a pop-up camper and a paper road map to navigate our journeys.

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Tags: Environmental, Environmental risks, site auditing, clean water, Health & Safety

EPA Delays Action to Update Rule Governing Lead in Drinking Water

Posted by Jon Elliott on Tue, Oct 31, 2017

Since 1991, Safe Drinking Water Act’s (SDWA) Lead and Copper Rule (LCR) has required public water systems (PWSs) to take steps to protect their customers from hazardous levels of lead in drinking water. Even before the highly-publicized crisis in Flint, Michigan, the Environmental Protection Agency (EPA) has been working toward LCR revisions that would update and expand these protective measures (continuing ongoing efforts that produced revisions in 2000 and 2007).

In October 2016, EPA produced a White Paper announcing the “urgent need” for revisions, describing key issues and possible revisions, and projecting to propose extensive LCR revisions during 2017. However, since President Trump assumed office, EPA’s priorities are shifting and its resources are being reduced (for example, I wrote about EPA’s Back-to-Basics Agenda here). Most recently, EPA’s formal agency-wide regulatory agenda now postpones the issuance of a Notice of Proposed Rulemaking (NPRM) until January 2018 and a final rule until June 2019. While we await action, it’s worth considering how PWSs can reduce lead exposures, particularly since building owners and employers might consider improvements to plumbing and fixtures that could improve workplace water quality.

What Does LCR Require?

The LCR divides PWSs into three groups based on the numbers of customers served, and assigns tailored responsibilities for testing, corrosion control, source water treatment, and pipe replacement. The three groups are:

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Tags: EPA, OSHA, clean water, Environmental, Environmental risks

EPA and the Corps of Engineers Propose to Turn Back the Clock on “Waters of the United States”

Posted by Jon Elliott on Tue, Jul 11, 2017

On June 27, 2017 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed to revise their regulatory definitions of “waters of the United States”, applying authority under the Clean Water Act (CWA). Their proposals would rescind expansive versions adopted in June 2015, during the Obama Administration, and reinstate the text of the definitions in place until 2015. These actions represent the latest chapter in a saga dating back to United States Supreme Court decisions in 2001 and 2006 overturning decades-long understandings of which waters CWA empowers the agencies to regulate. (I wrote about this history in a blog about the 2015 rules here).

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Tags: EPA, clean water, Environmental, Environmental risks, Stormwater

EPA’s “Back-to-Basics” Agenda

Posted by Jon Elliott on Tue, May 09, 2017

EPA Administrator Scott Pruitt has been on a tour to publicize his efforts to get EPA “back-to-basics.” He launched the tour with a visit to a Pennsylvania coal mine in April. The agency issued a press release about that visit, which also summarized its “Back-to-Basics Agenda.” The press release summarizes the Agenda as “Protecting the environment; engaging with state, local and tribal partners; and creating sensible regulations that enhance economic growth.” The Agenda provides a convenient rhetorical framework for the new Administrator’s efforts to re-boot EPA’s activities.

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Tags: EPA, Environmental, Environmental risks, climate change, ghg, Greenhouse Gas, Oil & Gas, clean water, Hazcom, tsca

The Latest Climate Change-Fighting Innovations

Posted by Jane Dunne on Tue, May 02, 2017

All over the world, our brightest and most creative minds are finding ways for us to produce fewer greenhouse gases and use renewable energy to its greatest potential with fascinating new technologies.

Sustainable Job Innovators

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Tags: climate change, clean water

President Trump Orders Review of “Waters of the United States”

Posted by Jon Elliott on Tue, Apr 11, 2017

On February 28, President Trump issued Executive Order (EO) Number 13778, ordering the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review their current regulatory definitions of “waters of the United States” – sometimes called “navigable waters.” (I blogged about this definition here). The EO strongly points toward a narrower definition that would reduce the agencies’ jurisdiction, reversing rules issued in 2015 during President Obama’s administration.

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Tags: EPA, Environmental, Environmental risks, effluent, clean water, Hazcom