Audit, Compliance and Risk Blog

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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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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The Environmental Protection Agency (EPA) is expanding its attention to asbestos and its associated hazards, including both existing uses and possible new uses. EPA is undertaking these initiatives under the aegis of extension of its authority under the Toxic Substances Control Act (TSCA), enacted in 2016 Amendments to TSCA -- the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.” (I wrote about provisions relating to existing chemical here, and for new chemicals and new formulations of existing chemicals here).

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Federal agencies have marked the beginning of Atlantic hurricane season by reminding employers and the public of the risks from hurricanes, and how to plan for and respond to events. These include a compilation of advisory documents on the Occupational Safety and Health Administration (OSHA) website, which also includes links to additional information by the Federal Emergency Management Agency (FEMA), Centers for Disease Control and Prevention (CDC), and the National Hurricane Center. This information is too late to help people in the Carolinas who’ve been inundated by Florence, but does provide useful reminders.

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Remember when splashing through puddles, collecting pretty-coloured leaves and deciding to keep a caterpillar for a pet were part of getting to and from school? Imagine all that you would have missed if your walk to school as a kid had been replaced with a sterile car ride. October is International Walk to School month (iWalk) and that has got me thinking…

Could Walking Boost Creativity?

Friedrich Nietzsche once said, “all truly great thoughts are conceived while walking” and many of the world’s greatest thinkers have recognized the power of a walk to spark new ideas and thoughts. Charles Dickens felt that walking enabled him to develop novel ways to write and some say that his walking stick was almost as important for his writing as his pen. (Charles Dickens Museum) A Stanford study has confirmed this belief and found that walking does boost creative inspiration. According to the study, creative output increases by an average of 60 percent when a person is walking. (Stanford News) Apparently, even after a walk, creative juices continue to flow, which is great for kids just arriving at school.

Exercise for Life

Setting up good habits when a child is young can translate into an active teen and adult life. Being driven to school each day contributes to sedentary behaviors and since much of the day is spent sitting in a classroom, an opportunity to be active while walking to school can help to develop life-long patterns of choosing exercise. Canadian Physical Activity Guidelines recommend that kids aged 5 to 11 get at least 60 minutes of moderate- to vigorous-intensity exercise every day. (For details on these guidelines, see Canadian Physical Activity Guidelines.) 

Clearing the Air

Car fumes are not healthy for anyone, but the one place that really should not have exhaust surrounding it is your local school. University of Toronto assistant professor, Matthew Adams, recently found that school kiss-and-ride drop-off zones are exposing children to increased levels of air pollution (see U of T News.)  Knowing that your family has chosen to walk, and is not contributing to poor air quality around schools by driving a short distance and then idling, is empowering. The morning walk to school is a chance for students to breathe fresh air and means that kids arrive at school feeling more alert and able to learn.

Street Smarts

Many parents find that letting their kids walk to school helps kids to learn how to be responsible and to make decisions by themselves. Walking or biking to school is a great way to improve academic performance. A recent study found that children who exercise have more brain power. Researchers were able to show that physical activity can actually increase the size of children’s brains and that kids who are physically fit have a greater volume of grey matter in the frontal and temporal regions and the calcarine cortex, all of which are important for learning, motor skills and visual processing. (For more information, see Brain Power.) 

Why Wouldn’t Kids Walk to School?

Some parents tell themselves that driving the kids to school is what is best for safety, but who is this really best for? When you consider that children are at a greater risk of injury in a car than while playing or walking, you really can’t put safety forward as the reason to drive them to school.

One fear that parents have is that their child will be kidnapped. Kidnappings are incredibly rare, but parents don’t want to be that 1 in 14 million, even though limiting their child’s independence is an expected outcome of not allowing them to experience the world on their own. A good way to quash this particular fear is to find a group of kids that can walk to school together. Set up rules on how everyone sticks together and no one is left behind. (For ideas on starting a walking school bus in your area, see Walking School Bus.) 

Getting Involved

For those of you living in British Columbia, you can register a school to participate in the Walk and Wheel to School event (October 1 – 5th 2018) with the Directorate of Agencies for School Health (DASH BC). (See DASH BC for more information.)

Jane Dunne is a Senior Editor for Specialty Technical Publishers. She works on a diverse catalogue of environmental publications that are recognized across North America as effective tools to ensure regulatory compliance with complex requirements.

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The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) empowers the Environmental Protection Agency (EPA) to define and regulate pesticides meeting statutory qualifications, providing extensive procedural directions how to do so. In addition, the Federal Food, Drug, and Cosmetic Act (“FFDCA”) authorizes EPA to regulate the use of pesticides on foods according to specific statutory standards, and grants EPA limited authority to establish tolerances for pesticide residuals on foods. These directions govern EPA’s analyses of applications for registration, ongoing evaluations of evolving scientific understanding and practical experience with pesticides that have been registered, and response to public comments and petitions (I provided a basic summary of FIFRA registration procedures here).

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The Occupational Safety and Health Administration (OSHA) and state worker protection agencies require employers to identify regulated carcinogens in their workplaces, to protect workers against hazardous exposures, and to provide information and training to reinforce those protections. OSHA regulations apply to dozens of chemical agents and other substances known to be human carcinogens, including 13 covered by a single “Regulated Carcinogen Standard.” Employers should also be aware that hundreds of additional chemicals are suspected carcinogens that should be considered.

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California is one of many jurisdictions around the planet attempting to reduce greenhouse gas (GHG) emissions to 1990 levels. Globally, this goal appears in the United Nations Framework Convention on Climate Change (UNFCCC) – signed in 1992 when the 1990 goal translated roughly into a goal to keep GHG emissions flat. California adopted its own 1990 goal in “AB 32” legislation enacted in 2006, by which time annual statewide emissions had increased significantly, and when business-as-usual emissions growth was projected to continue. As later quantified by the California Air Resources Board (ARB), AB 32 amounted to a commitment to reverse the state’s path, reducing GHG emissions by 15% instead of allowing them to rise by 15%. In July, ARB announced that the state has reached this 2020 goal, two years early.

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Kathy McKinney-Tovar, STC Senior Analyst

On July 15, 2015 (80 FR 41566), EPA published the first major revision to the federal underground storage tank (UST) regulations since 1988. The 1988 UST regulation required owners and operators to have spill, overfill, and release detection equipment in place; the 2015 amendments add additional requirements to ensure that this equipment is functioning properly and is adequately maintained to effectively prevent a release. Table 1 below summarizes the operation and maintenance provisions that apply October 13, 2018.

In addition to imposing new operation and maintenance requirements, the 2015 amendments address UST systems deferred in the 1988 UST regulation. USTs storing fuel for use by emergency power generators have their deferral removed, with EPA adding requirements for release detection by October 13, 2018. Airport hydrant systems (AHS) and UST systems with field-constructed tanks (FCT) lose their deferral status and must also comply with Subpart K by October 13, 2018 (see Table 1 below). Previously EPA removed the deferral for wastewater treatment tanks, USTs containing radioactive material, and emergency generator UST systems at nuclear power generation facilities and reclassified them under a new category, “partially excluded UST systems.” Owners and operators of these tanks must continue to comply with Subparts A and F as they always have, as well as new installation requirements.

The 2015 amendments also include provisions for operator training (as outlined in Table 1). The majority of states, however, adopted requirements regarding operator training under the UST grant guidelines of the Energy Policy Act of 2005 (Act). The UST provisions of the Act focus on preventing releases and expand eligible uses of the Leaking Underground Storage Tank (LUST) Trust Fund. States that receive grants to help pay for the cleanup of leaking UST sites had to meet the requirements or lose funding. Since nearly all states receive funding to help pay for cleanup, the vast majority previously adopted requirements regarding operator training following the Act’s grant guidelines. EPA is allowing these states to retain their regulations, although some states have chosen to make changes to more closely align with the 2015 amendments.

Compliance with the 2015 amendments depends on whether a state has state-plan approval (SPA). Currently, 38 states and territories have received SPA to operate their UST programs in lieu of EPA’s requirements. Facilities in these states are not required to comply with the 2015 amendments until the state revises its regulations. Owners and operators in the 12 non-SPA states (AK, AZ, CA, FL, IL, KY, MI, NJ, NY, OH, WI, and WY) and 4 territories need to follow their state or territory requirements as well as meeting the EPA’s amendments according to the time frames listed in Table 1.

As of July 6, 2018, 21 states (17 SPA states and four non-SPA states) have either published state-specific regulations that adopt the 2015 amendments or have incorporated by reference the federal regulations. A summary of these state programs and their adoptions status can be found on the Resources page of the STC website.

Table 1 – Summary of the 2015 UST Amendments

New Requirement	Implementation Time Frame
Designation and training of A, B, and C operations.	Owners and operators must begin meeting these requirements by October 13, 2018
Release detection for UST systems storing fuel for use by emergency power generators.
Subpart K applicability for AHSs and FCTs (release detection, upgrade, general operating requirements, and operator training requirements)
Spill prevention equipment inspections every 3 years.	Owners and operators must conduct the first test or inspection by October 13, 2018
Release detection equipment testing annually
Monthly walkthrough inspections of spill prevention equipment and release detection equipment
Annual walkthrough inspections of containment sumps and hand held release detection equipment.

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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President Trump and his agency heads have been clear about their intent to reduce regulatory “burdens” on individuals and organizations. Meanwhile, however, they have tended to talk tough on crime. However, a new report shows that civil and criminal enforcement against corporations fell dramatically during their first year in office, compared with enforcement during President Obama’s term. In July, the nonprofit advocacy group Public Citizen published “Corporate Impunity – ‘on Crime’ Trump Is Weak on Corporate Crime and Wrongdoing.”

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