Audit, Compliance and Risk Blog

On March 28, 2024, the US Environmental Protection Agency (EPA) adopted requirements that qualifying onshore non-transportation-related facilities prepare Facility Response Plans (FRPs) to address possible “worst case” discharges of hazardous substances into navigable waters or related areas. These new requirements fulfill a mandate imposed in 2020 after environmental groups successfully sued EPA for failing to issue such rules in the 30 years following 1990 amendments to the Clean Water Act (CWA) directed EPA to do so (Environmental Justice Health Alliance for Chemical Policy Reform, et al. v. EPA). The rest of this note discusses these new requirements, in the context of CWA facility preparation requirements.

On March 11, the Biden Administration issued its budget proposal for federal Fiscal Year (FY) 2025 (October 1, 2024 through September 30, 2025). The administration proposes a $10.994 billion budget for the Environmental Protection Agency (EPA), an 8.5% ($0.858 billion) increase above money allocated to EPA under the latest FY 2024 Continuing Budget Resolution (since no budget has been adopted for FY budget under continuing resolutions during FY 2024 (I wrote about the Administration’s FY 2024 proposal HERE). ctionsEven if an FY 2025 budget is enacted, political differences make significant reductions likely, but, it’s worth reviewing the proposal as a reflection of the Administration’s ongoing environmental priorities. The remainder of this note summarizes the latest proposal.

On March 1, 2024, the Environmental Protection Agency (EPA) revised Accidental Release Prevention (ARP) program rules under the Clean Air Act (CAA). ARP was authorized by the 1990 Clean Air Act (CAA) Amendments, and is often known by its core requirement that targeted facilities prepare Risk Management Programs (RMPs) to prevent and respond to potential catastrophic releases of chemicals. The adoption finalizes an agency proposal from 2022 (it also recounts a long series of proposal dating back to 2014; I wrote about it HERE), in which the Biden-era EPA proposed to many of the narrowing amendments to RMP/ARP enacted in 2019 during the Trump Administration (I wrote about the 2019 changes HERE).

The rest of this note summarizes the new revisions, noting their differences from current rules.

The Environmental Protection Agency (EPA) announced on February 7. 2024 its decision to tighten one the National Ambient Air Quality Standard (NAAQS) for particulate matter less than or equal to 2.5 microns; (PM-2.5; also call “fines” in contrast to larger particulates). This decision completes EPA’s reconsideration of a decision in 2020 not to adjust the PM-2.5 requirements (I wrote about that decision HERE); the change reflects in part the changed priorities between the Trump and Biden administrations. The rest of this note summarizes NAAQS issues as they apply to PM-2.5.

On January 10, 2024, the U.S. Environmental Protection Agency (EPA), U.S. Department of Justice, and the California Air Resources Board (ARB) filed a settlement agreement with Cummins, Inc. covering nearly one million Ram vehicles for which Cummins supplied diesel engines with illegal software-based “defeat devices” that produced misleading emission certification results compared with significantly higher emissions while the vehicles are in actual use. Cummins will pay the largest CAA penalties ever ($1,675 million in federal and state penalties), will fund environmental mitigation projects to compensate for excess nitrogen oxides (NOx) emissions ($175 million), and will also recall 630,000 vehicles (model years 2013-2019) to remove the defeat devices (estimated costs $150 million, including warranty extensions). Cummins will also implement corporate governance, organizational, and technical process reforms to minimize the likelihood of future violations.

Many laws provide for civil – and sometimes even criminal – penalties for noncompliance. New legislation typically sets penalty levels (“XXX dollars per day of violation” for example), at levels intended to provide meaningful deterrence and punishment for noncompliance. But over time, the relative sting of these penalties declines with inflation. To counteract the possibility that less painful penalties reduce incentives for compliance, most U.S. federal agencies are required to make annual “cost of living” adjustments to maximum available civil penalty levels (criminal penalties are not affected).

Federal laws (commonly referred to as RCRA, after the Resource Conservation and Recovery Act of 1976) provide comprehensive management requirements for parties involved in hazardous waste management, from “cradle to grave” covering generators, transporters, and offsite management facilities. Among these many provisions are requirements that “large quantity generators (LQGs)” submit biennial reports to the Environmental Protection Agency (EPA) or delegated states in March of every even-numbered year. March 2024 is the next such deadline, so now is a good time to review biennial report requirements to ensure compliance at qualifying facilities.

On October 31, 2023 the US Environmental Protection Agency (EPA) tightened its reporting requirements for per- and polyfluoroalkyl substances (PFAS) – frequently called ‘forever chemicals” because they biodegrade very slowly – under its Toxic Release Inventory (TRI) program. These changes finalize a proposal issued in (which I wrote about HERE), and reflect EPA’s agency-wide efforts to tighten controls on PFASs proposed in December 2022 (I wrote about these efforts HERE). The new TRI revisions apply to reports beginning in calendar year 2024. The remainder of this note summarizes these changes.

On October 19, 2023, the US Environmental Protection Agency (EPA) proposed to establish requirements for the management of hydrofluorocarbons (HFCs) potentially released from equipment during maintenance or other services, and manage spent HFCs.. These rules support US efforts to implement the 2016 Kigali Amendment to the United Nations-sponsored Montreal Protocol on Substances that Deplete the Ozone Layer (which I wrote about HERE), and codified in the December 2020 coronavirus relief bill (American Innovation and Manufacturing Act of 2020 (AIM Act; which included dozens of unrelated provisions within its 5,593 pages). EPA adopted its over-arching HFC phase-down rules in September 2021 (I wrote about them HERE), and continues to adjust and refine their requirements. The remainder of this note summarizes EPA’s new proposal, which would impose requirements using authority under the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA).

On September 13, the US Environmental Protection Agency (EPA) added to its website a portal with information about the agency’s many regulatory, research and informational efforts addressing carcinogen hazards and controls. This information supports the Biden Administration’s “Cancer Moonshot.”  EPA undertakes carcinogen control efforts by applying legal authority under many of the environmental protection statutes it administers. The remainder of this note summarizes the agency efforts identified on EPA’s new web portal.