Emergency Temporary Standards to Protect Workers from COVID-19

November 30, 2020
California’s Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board unanimously adopted emergency temporary standards to protect workers from hazards related to COVID-19. The emergency standards will be in effect immediately if approved by the Office of Administrative Law in the next 10 calendar days.
The temporary standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:
  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
  • Face coverings – providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Criteria for employees to return to work after recovering from COVID-19.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.
The Standards Board will file the rulemaking package with the Office of Administrative Law, which has 10 calendar days to review and approve the temporary workplace safety standards enforced by Cal/OSHA. Once approved and published, the full text of the adopted emergency standards will appear in the new Title 8 sections 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation to and from Work) of the California Code of Regulations. Pursuant to the state’s emergency rulemaking process, after an initial effective period the board will have two opportunities to readopt the temporary standards.
Cal/OSHA will expeditiously convene a stakeholder meeting that will include industry and labor representatives to review the requirements of the emergency regulation and solicit feedback and recommend updates.
The Occupational Safety and Health Standards Board, a seven-member body appointed by the Governor, is the standards-setting agency within the Cal/OSHA program. The Standards Board's objective is to adopt reasonable and enforceable standards at least as effective as federal standards. The Standards Board also has the responsibility to grant or deny applications for variances from adopted standards and respond to petitions for new or revised standards.
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Former President of Recycling Company Sentenced to 18 Months for Storing Hazardous Waste & Tax Violations
Scott C. Blader, United States Attorney for the Western District of Wisconsin, announced that James Moss, 61, Ladysmith, Wisconsin, was sentenced by U.S. District Judge William M. Conley to 18 months in federal prison for conspiring to store and transport hazardous waste without required permits and manifests, in violation of the Resource Conservation and Recovery Act, and with conspiring to evade the payment of employment taxes and income taxes to the IRS.
Moss pleaded guilty to these charges on September 1, 2020.  Moss worked for 5R Processors Ltd. (5R) based in Ladysmith, which was a Wisconsin-based corporation involved in recycling electronic equipment, appliances, and other assets.  According to the information, 5R operated numerous facilities and warehouses including in Ladysmith, Glen Flora, Catawba and West Bend, Wisconsin, and in Morristown, Tennessee.  Moss started at 5R in January 2007 and became its President in 2010.  As President of 5R, Moss was responsible for managing all plant operations, including shipping, receiving, trucking, sales, de-manufacturing, warehousing, accounting, and payroll.
From 2011 to 2016, Moss and others, conspired to (1) store hazardous waste (i.e broken and crushed CRT glass that contained lead) at unpermitted facilities in Catawba and Glen Flora in Wisconsin, and in Morristown, Tennessee; (2) transport the hazardous waste without a required manifest; and (3) conceal the above violations from state regulators in Wisconsin and Tennessee, as well as auditors with a nationwide recycling certification program (R2).
At his plea hearing, Moss admitted to attempting to conceal the illegal storage and transport of the crushed leaded glass by various means, including: (1) changing the date labels on the containers; (2) hiding the containers by putting them inside semi-trailers and locking the trailer doors; (3) moving the containers to the back of the warehouse and stacking other pallets in front of them, making it impossible for regulators to see the boxes or inspect them; (4) storing the containers at a warehouse on Artisan Drive in Glen Flora, Wisconsin (known as the “Sunshine Building”), and not disclosing the existence of this warehouse, or its contents, to state regulators or R2 auditors; (5) storing the containers at 5R’s plant in Morristown, Tennessee in two warehouse spaces that did not have electricity or power, and which were referred to by 5R employees as the “dark side” and the “dark-dark side;” and (6) providing the state regulators with inaccurate inventory and shipping records for the leaded glass.
Moss also pleaded guilty to a conspiracy with others to defraud the IRS in the collection of employment taxes and income taxes for 5R and two other related companies, Wisconsin Logistic Solutions (WLS) and Pure Extractions.  Moss and others failed to truthfully account for and pay over to the IRS all of the federal income taxes withheld from employees and FICA taxes due and owing to the United States for 5R, WLS and Pure Extractions, totaling $858,101.29.
At the sentencing, Judge Conley told Moss that his conduct is inexplicable given Moss’s upbringing and life history prior to working at 5R.  The judge noted that Moss rationalized his criminal conduct by deluding himself that it was okay because it was the only way to keep himself and other members in the community employed, but that Moss understood what he was doing was wrong --year after year.
Judge Conley praised Moss by doing the right thing and cooperating with the government to help explain and unravel the criminal conspiracy but added that Moss still needed to pay a price.  The judge added, “I hope this sentence delivers the message of the severity of your conduct and the debt you must pay to society.”
The charges against Moss were the result of an investigation conducted by the Wisconsin Department of Natural Resources, Bureau of Law Enforcement; the EPA Criminal Investigation Division; and IRS Criminal Investigation. The prosecution of the case has been handled by Assistant U.S. Attorney Daniel J. Graber.
Environmental Lab Analyst Pleaded Guilty to Falsifying Test Results
U.S. Attorney Justin Herdman announced that Andrew K. Ecklund, age 57, of Tallmadge, entered a plea of guilty to an indictment charging him with nine counts of wire fraud.
Joining U.S. Attorney Justin Herdman in the announcement were Jennifer Lynn, Special Agent in Charge of the EPA’s Criminal Investigation Division in Ohio; Patrick J. Hegarty, Acting Special Agent in Charge of the DCIS Northeast Field Office; Special Agent in Charge L. Scott Moreland of the U.S. Army Criminal Investigation Command’s (Army CID) Mid-Atlantic Fraud Field Office and Ohio Attorney General Dave Yost.
According to court documents, Ecklund was previously employed as a laboratory analyst with an environmental testing company operating in Northeast Ohio. The company was paid to analyze environmental samples for organizations and government agencies across the United States and to do so according to U.S. EPA regulations. As a laboratory analyst, Ecklund was responsible for testing the samples for the presence and concentration of hazardous substances using industry standards, methodology and quality control measures.
On nine separate occasions between on or about January 3, 2012, and on or about July 25, 2015, when conducting quality control testing measures, Ecklund took steps to make it appear that the samples had passed the testing measures, when in fact, they had failed. In particular, Ecklund manipulated the tune and calibration portions of the quality control process and, in doing so, invalidated the sample analysis. By disguising these invalid tests and making them appear valid, Ecklund was able to increase his productivity by avoiding having to shut down his instruments for repair and not retesting the samples, as required by EPA regulations. As a result of his actions, the test results provided by the company to their customers were invalid.
“Deliberately falsifying the test results of a process that is in place to keep people safe and healthy shows a reckless disregard for the well-being of your fellow man,” said U.S. Attorney Justin Herdman. “We are grateful for the actions of our partner agencies in this investigation in order to catch this behavior and put an end to it.”
“Both environmental regulators and the regulated community rely on accurate laboratory results to make important decisions on the protection of human health and the environment,” said Special Agent in Charge Jennifer Lynn of EPA’s Criminal Investigation Division in Ohio.  “Quality control is one of the most important aspects of sample analysis.  This plea demonstrates that analysts who cover up failed quality control measures and then misrepresent test results will be held accountable.”
"The integrity of the DoD procurement process is a top priority for the Defense Criminal Investigative Service (DCIS)," stated Acting Special Agent in Charge Patrick J. Hegarty, DCIS Northeast Field Office.  "The defendant's guilty plea is the result of a joint investigative effort and demonstrates the DCIS' commitment to work with the USAO-NDO, the EPA-CID and the Army CID, to ensure that claims submitted to the U.S. Department of Defense for the testing of environmental samples are valid and supported by accurate documentation."
After the laboratory testing was complete, the company was required to submit an analysis report to its customers detailing the results. Each report identified the laboratory analyst who conducted the testing and described any deviations from the testing methodology, including the quality control measures. On his analysis reports, Ecklund failed to disclose that the samples had not passed the quality control measures and the actions he took to make it appear that they had passed.
Ecklund is scheduled to be sentenced on March 8, 2021 before U.S. District Court Judge Pamela A. Barker. The investigation preceding the indictment was conducted by the U.S. EPA, Army Criminal Investigation Division to Army Criminal Investigation Command Major Procurement Fraud Unit, Department of Defense, Defense Criminal Investigative Service, Ohio EPA and the Ohio Attorney General’s Office. This case was prosecuted by Assistant U.S. Attorney Brad J. Beeson.
Hazardous Waste Generator Improvements Rule Adopted by South Carolina DHEC
In the November 20 Federal Register, South Carolina received final authorization to update the State’s hazardous regulations to align with recent changes in the Federal regulations. The revisions, which are detailed in the initial proposal, include:
  • E-manifest, and manifest revisions
  • Universal waste: mercury-containing equipment
  • Wastewater headworks exemption revisions
  • Regulation of cathode ray tubes
  • Academic laboratories generator standards
  • Exclusions for solvent contaminated wipes
  • New exclusions for reclamation of solid waste
  • Prohibition of sham recycling
  • Adoption of EPA’s hazardous waste generator improvements rule
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Pittsburgh Water and Sewer Authority to Plead Guilty to Clean Water Act Violations; Former Treatment Plant Supervisor Indicted
The Pittsburgh Water and Sewer Authority (PWSA), headquartered in downtown Pittsburgh, has been charged by criminal information in federal court and a former supervisor has been indicted for violating the Clean Water Act, United States Attorney Scott W. Brady announced.
The Pittsburgh Water and Sewer Authority has been charged and will plead guilty to one count of violating its National Pollutant Discharge Elimination System Permit (the NPDES Permit) by discharging sludge into the Allegheny River. The Authority will also plead guilty to seven counts of making false statements in written reports about the amount of sludge it was sending the ALCOSAN’s waste treatment facility. Under the terms of the plea agreement, PWSA will agree to adhere to the terms of a comprehensive Environmental Compliance Program to correct the violations of federal law and to prevent further unlawful pollution of the Allegheny River.
In a related matter, former Aspinwall Drinking Water Treatment Plant supervisor Glenn Lijewski, 69, of Pittsburgh, was indicted on November 12, 2020, and charged with one count of conspiracy to violate the Clean Water Act and two counts of violating the PWSA’s Clean Water Act Industrial User Permit. The indictment alleges that Lijewski was directly responsible for the unauthorized discharge of clarifier sludge into the Allegheny River in violation of the PWSA’s NPDES Permit. It further alleges Lijewski directed other plant employees to discharge sludge into the river. Finally, the indictment alleges Lijewski directed employees to use estimated sludge flow numbers instead of actual numbers, and that the use of these estimated numbers violated PWSA’s Industrial User Permit.
"For seven years, the Pittsburgh Water and Sewer Authority has failed to meet its public trust obligations in complying with the Clean Water Act during the production of drinking water for the citizens of Pittsburgh," said U.S. Attorney Brady. "Today’s criminal charges shed light on years of mismanagement and malfeasance. The Department of Justice and the Environmental Protection Agency are committed to protecting you and your families by ensuring that the water you drink is produced safely and that the area’s rivers are not polluted with waste."
"The people of Pittsburgh deserve and expect local utilities to obey environmental requirements that protect natural resources," said EPA Special Agent in Charge Jennifer Lynn. "The defendants in this case are accused of dumping sludge into the Allegheny River."
The Criminal Information filed alleges that PWSA violated its NPDES Permit when its employees at the Aspinwall Drinking Water Treatment Plant discharged sludge generated during the drinking water treatment process into the Allegheny River. During this process various chemicals are added to water drawn from the Allegheny River. These chemicals cause small particles suspended in the water to clump together. Afterwards, the partially treated water is transferred to two large sedimentation basins where solids and debris settle out. The water is then transferred back to the Aspinwall Plant where it was subjected to a clarification process. This took place in a facility known as the Clarifier Building, which contains four large concrete basins known as clarifiers. The addition of chemicals to the water promoted the generation of additional clumps of solids which settled on the bottom of each clarifier and were pumped to a large concrete structure located near the banks of the Allegheny River. The solids were referred to as sludge and the large concrete pit was referred to as "the sludge pit," "the ALCOSAN pit," or "FM-5." FM-5 had pipes that led to the Allegheny River and sewer line.
Under the terms of its NPDES Permit, PWSA was only permitted to discharge storm runoff water and partially treated drinking water that needed to be emptied out of a clarifier prior to cleaning and repairs. That water was referred to as "clarifier blowdown." PWSA was not permitted to discharge clarifier sludge into the Allegheny River.
Instead, between 2010 and May 2017, PWSA employees and supervisors at the Aspinwall Plant diverted and discharged sludge into the Allegheny River. By using electronic or manual controls at FM- 5, the employees caused the sludge to flow from FM-5 to a discharge point known as Outfall 012 and then into the Allegheny River.
At various points, plumes of discolored water, some of which were several hundred feet long, and solids were visible in the river. Over time, the sludge discharge resulted in a buildup of solids. Employees at the Aspinwall Plant referred to the buildup as an island. Birds were also observed walking on the island when the river levels were low. The river’s currents dissipated the island over time, but the island would reappear when new discharges occurred.
PWSA had also been issued a Clean Water Act Industrial User Permit by ALCOSAN. Under the terms of this permit, PWSA was permitted to ship one million gallons of sludge per day to ALCOSAN’s waste treatment facility. The permit required PWSA to determine the daily amount of sludge through the use of a meter. PWSA installed flow meters at FM-5 and at the clarifier basins. The readings from the meters had to be included in bi-annual reports PWSA was required to submit under the penalties of perjury to ALCOSAN.
The flow meters at two of the clarifier basins broke in or around late December 2014 or early January 2015. The meter at FM-5 also broke and was inactive by early 2015. As a result, PWSA supervisors at the plant instructed the plant’s operators to estimate the amount of sludge flowing from the clarifier basins to FM-5 and from there to the ALCOSAN facility. These estimates were also included in the reports PWSA sent to ALCOSAN. These reports also represented that PWSA’s employees periodically checked the calibration of the sludge flow meters to ensure they were within factory limits.
Each report was signed by a PWSA representative as being "true, accurate, and complete." In July 2019, PWSA’s management obtained approval from PWSA’s Board of Directors for funds in "the amount of $47,852,71 to furnish and install four new flow meters for the sludge valves associated with each of the four clarifiers at the Aspinwall Water Treatment Plant." On January 15, 2020, investigators from the EPA, an attorney from the United States Attorney’s Office, and an attorney from EPA, Criminal Enforcement visited the Aspinwall Plant to interview employees and tour the facility. Part of the tour included a walk through the Clarifier Building and past the meters. No mention as to the inoperability of the meters was made. The following day, two of PWSA’s employees informed the investigators and the prosecutors that two of the meters were broken and had been for years. In February 2020, PWSA replaced the sludge flow meters, more than five years after they had broken.
Under the terms of the plea agreement PWSA will be placed on probation for a period of three years. In lieu of a fine, PWSA will be required to pay $500,000 into a self-funded Compliance Fund. Under the terms of the plea agreement, PWSA is not permitted to use the fund’s cost as a justification for any rate increase proposal it may submit to the Pennsylvania Public Utility Commission. The fund will be used to pay for comprehensive environmental compliance program to which PWSA must adhere. This program will be subject to the approval of the United States Attorney’s Office and will focus on the production of drinking water; PWSA’s compliance with it NPDES and Industrial User Permits; and the proper storage of chemicals at the plant. The United States Attorney’s Office and the EPA will monitor implementation of the plan during PWSA’s period of probation. PWSA will also be required to provide annual environmental audits to the United States Attorney’s Office and the EPA. These audits will also be available on the Authority’s website for the public’s benefit. PWSA will also be required to install an Environmental Compliance Manager at the Aspinwall Plant. This individual will be authorized to receive complaints and conduct investigations concerning environmental issues occurring at the plant.
For Lijewski, the law provides for a maximum term of imprisonment of five years as to the Conspiracy count and three years for a violation of a Clean Water Act Industrial User Permit. There are also potential fines associated with these crimes. Under the Federal Sentencing Guidelines, the actual sentence imposed would be based upon the seriousness of the offense and the prior criminal history, if any, of the defendants.
Assistant United States Attorney Michael Leo Ivory and Martin Harrell, a criminal enforcement attorney with EPA Region 3 Office of Regional Counsel, are prosecuting this case on behalf of the government.
The EPA conducted the investigation that led to the prosecution of the Pittsburgh Water and Sewer Authority.
EPA to Address Ethylene Oxide Risks
EPA has released a  draft risk assessment for the pesticide registration for EtO by for public comment. Based on the Agency’s review of the body of available information about EtO’s toxicity, the Agency has indicated that additional steps are needed to mitigate the risks associated with the use of EtO. EtO is used to sterilize certain medical equipment and spices. 
“EtO is used on half of all sterilized medical devices in the United States annually and, in some cases, it is the only sterilization method available,” said EPA Office of Chemical Safety and Pollution Prevention Assistant Administrator Alexandra Dapolito Dunn. “We look forward to receiving the public’s input on our draft risk assessment so that we can strengthen safeguards for those who work in facilities that use EtO and those who live near facilities that use or manufacture EtO.”
EPA regulates EtO’s use as a sterilant, which is considered an antimicrobial pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Every 15 years, EPA evaluates a wide variety of potential human health and environmental effects associated with the use of a pesticide through the registration review  process. As part of EtO’s registration review, the agency is continuing to assess potential human health risks that come from working in facilities that fumigate with EtO, living in communities near EtO facilities, and consuming spices treated with EtO.
The draft risk assessment for the registration review presents multiple analyses that capture a wide range of possible levels of EtO that could affect a person's risk of getting cancer from long-term, chronic exposures to EtO, either in the workplace or through the outdoor air. Based on all available information about EtO’s toxicity, EPA found that inhaling EtO over many decades can cause cancer risks of concern. Therefore, additional mitigation measures are necessary to protect the health of workers and surrounding communities. The next step in the FIFRA process would be to issue a proposed interim decision, which is used to outline the potential risk management options to address any potential risks of concern.
EPA also is working to reduce EtO emissions to the outdoor air by reviewing Clear Air Act rules for industries that emit EtO and by coordinating with state air agency partners to identify opportunities for early reductions. In addition, the agency is working to gather data on background EtO concentrations in the air through monitoring at existing air toxic monitoring sites. EPA is also evaluating new technologies and methods for measuring the chemical. 
EtO is a pesticide used on 50% of all sterilized medical devices in the United States annually. It is also used on approximately 30% of spices in the United States. 
The agency will take public comment on the draft risk assessment for 60 days following its publication in the Federal Register via www.regulations.gov  [Docket EPA-HQ-OPP-2013-0244]. After carefully considering public comments, EPA will finalize the draft risk assessment and turn to the next step in the FIFRA process which is taking steps to address the risks identified in the draft risk assessment.
Geysers Power Company Agrees to Pay $2.1 Million to Settle Alleged Violations at Six Geothermal Power Plants
The California Energy Commission (CEC) approved a $2.1 million settlement agreement with Geysers Power Company (GPC) to resolve alleged violations related to the fire protection systems discovered at six of its geothermal power plants in Sonoma and Lake counties. As part of the settlement agreement, the company is also making improvements to the facilities’ fire protection systems.
The Geysers are geothermal power plants and the first renewable energy  facilities  approved by the CEC. Since they began operating in 1982, these six plants have collectively generated 300 megawatts of clean, reliable, baseload electricity.
The CEC is the state agency responsible for licensing thermal power plants 50 megawatts or greater. Once licensed, a power plant under CEC jurisdiction must maintain compliance with all conditions established for it to operate.
During routine site visits to the Geysers facilities in February and March 2018, CEC staff identified issues with the fire protection systems of the power plants. The CEC and GPC, with input from outside experts, developed and implemented a plan to resolve the issues. None of these issues were related to any fire event. In addition to improvements at the six facilities under CEC’s jurisdiction, GPC also voluntarily made upgrades at seven additional plants.
“Ensuring the safety and reliability of California’s existing power plant fleet is foundational to the Energy Commission’s work,” said CEC Executive Director Drew Bohan. “We appreciate the Geysers Power Company’s rapid response to address these important issues and the company’s cooperation in reaching the settlement which saves state resources by avoiding further investigation and enforcement action.”
The improvements and the settlement resolve the alleged violations at the Geysers facilities. In accordance with state law, the settlement will be deposited in the state’s general fund.
EPA Finds that Existing Requirements Effectively Address Financial Risks from Three Industries
EPA has finalized its rulemakings on financial assurance requirements for the Electric Power Generation, Transmission and Distribution; Petroleum and Coal Products Manufacturing; and Chemical Manufacturing industries. EPA announced that following a detailed analysis, it finds that the financial risks from facilities in these industries are addressed by existing state and federal requirements to cover the costs of cleaning up possible hazardous substance releases. EPA’s final rulemakings do not remove any existing requirements; rather they do not impose additional, new requirements.
“EPA has found that existing environmental regulations and modern industry practices are sufficient to mitigate any risks inherent in these industries,” said EPA Administrator Andrew Wheeler.
Using the authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 108(b), EPA analyzed the need for additional, new financial assurance requirements for the electric power, petroleum and coal products manufacturing, and chemical manufacturing industries. EPA evaluated the financial risk to the federal Superfund program associated with the production, transportation, treatment, storage, or disposal of hazardous substances in these industries. This included evaluation of the history of cleanups under Superfund, modern industry practices, applicable federal and state regulations, the industries’ financial health and economic trends, and the risk of taxpayer-funded cleanups of facilities in these industries. In addition to research and analysis, EPA reviewed and considered public comments to conclude that the level of risk is addressed by existing requirements and does not warrant new requirements for these industries. This is consistent with EPA’s interpretation of the statute, which was unanimously upheld by the D.C. Circuit Court of Appeals in litigation challenging the Agency’s hardrock mining final action not requiring additional financial assurance.
Section 108(b) of CERCLA (also known as Superfund) addresses potential requirements for financial responsibility to cover the costs associated with cleaning up releases or threatened releases of hazardous substances from facilities. In the 40 years since CERCLA became law, other state and federal requirements have been promulgated, so EPA has not needed to use this statutory authority to impose additional financial assurance requirements on classes of facilities to address the potential risk of releases of hazardous substances.
These final rulemakings will be published in one consolidated Federal Register notice and will be effective 30 days after publication.
Two Iowa Companies Fined for Alleged Automobile ‘Defeat Device’ Violations
EPA has reached settlements with two Iowa companies for allegedly tampering with car engines to render emissions controls inoperative, in violation of the federal Clean Air Act.
According to EPA, Menzel Enterprises Iowa Inc. of West Des Moines installed so-called “defeat devices” in at least five vehicles. EPA also alleged that UpCountry Fab and Performance LLC of Clive, Iowa, removed emission control equipment and/or sold “defeat devices” on at least 48 occasions.
Under the terms of the settlements, each company will pay a civil penalty and must certify that it will refrain from disabling emission controls in the future.
“Modifying auto emissions controls is illegal and contributes substantial excess air pollution,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “These practices also impede efforts by EPA, states and tribes to plan and implement air quality standards.”
Tampering of car engines, including installation of aftermarket defeat devices intended to bypass manufacturer emissions controls, results in significantly higher releases of nitrogen oxides and particulate matter, both of which contribute to serious public health problems in the United States. These problems include premature mortality, aggravation of respiratory and cardiovascular disease, aggravation of existing asthma, acute respiratory symptoms, chronic bronchitis, and decreased lung function. Numerous studies also link diesel exhaust to increased incidences of lung cancer.
Stopping aftermarket defeat devices for vehicles and engines is a top priority for EPA. The Agency identified this goal as one of seven National Compliance Initiatives in 2019.
Updated Frequently Asked Questions to Address Cloth Face Coverings as Personal Protective Equipment
OSHA has published an update to its Frequently Asked Questions (FAQ) to address whether OSHA considers cloth face coverings to be personal protective equipment. The agency is addressing the topic after the Centers for Disease Control and Prevention (CDC) recently determined that some cloth face coverings may serve as source control while also providing the wearer with some personal protection.
The FAQ states that OSHA does not believe enough information is currently available to determine if a particular cloth face covering provides sufficient protection from the coronavirus hazard to be personal protective equipment under OSHA's standard. OSHA's determination is consistent with statements made by the CDC, which has stated it needs more research on cloth facemasks' protective effects, particularly on the combination of materials that maximize blocking and filtering effectiveness.
OSHA continues to encourage workers strongly to wear face coverings when in close contact with others to reduce the risk of spreading the coronavirus, if it is appropriate for the work environment.
See OSHA's COVID-19 webpage for additional information and resources about the coronavirus.
GM Reversed Stance on State Authority over Clean Car Standards
In a letter to the leaders of NRDC and other environmental organizations, General Motors announced that it would abandon its legal support for the Trump administration’s attempt to gut the authority of California and other states to set clean car standards. The company also said it would work with the incoming Biden administration on “dramatically reducing vehicle emissions.”
Luke Tonachel, Director for Clean Cars and Clean Fuels at the Natural Resources Defense Council said, “We welcome General Motors' decision to drop its support of the Trump administration’s effort to block California from its historic role in setting clean car standards. All the other automakers should do the same. GM’s move is an important sign that automakers recognize that the transition to zero-emitting vehicles is well underway.”
Ohio EPA Hearing for Proposed Rules on Waste Program Merger
Ohio EPA will be holding a virtual public hearing on proposed new rules to merge the industrial waste program and the residual waste program. During the virtual hearing, which will begin at 10:30 a.m., Wednesday, Dec. 9, 2020, the public can submit written comments on the record about the proposed rules. Citizens who want to participate must preregister in advance of the meeting.
The proposed rules are being reviewed as part of Ohio EPA’s five-year rule review process. The existing residual waste program establishes four landfill classifications based on the waste characterizations. The classification impacts liner design, the post-closure care period, and one siting criterion. Since the rules were promulgated in 1992, Ohio EPA has permitted one Class II and no Class IV residual waste landfills. If adopted, the rule changes would merge the industrial waste and residual waste programs and reduce the landfill classifications to two, one for waste classified to go to an industrial landfill, and one for waste classified to go to a residual landfill. Since the two programs share similar regulatory standards, this amendment would also serve to reduce duplication in the rules.
After considering public comments, Ohio EPA will make any necessary changes and finalize the rule changes.
Comments on the proposed rules may be presented at the hearing, or submitted by emailing Michelle.Mountjoy@ohio.epa.gov. The public comment period ends at close of business Dec. 9. More information on the proposed rules update is available online at the Division of Materials and Waste Management Rules and Laws web page. See information under the “proposed rules” tab.
Violation Notice Issued for Starting Construction Early
The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has required Graphic Packaging International in Kalamazoo, through a condition of their approved permit, to cease the use of one of its boilers for its recycled paperboard line.
EGLE approved an air permit in March to allow Graphic Packaging to add a paperboard line to its facility where it produces paper products from recycled material. Since then, Graphic Packaging requested to make changes to some of the equipment that emits air contaminants. To make those changes, the company was required to seek approval from EGLE through changes to its air permit.
Graphic Packaging had begun to install equipment before the permit was approved, which is a violation of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended. Based on this information, EGLE issued a violation notice on Nov. 20. Graphic Packaging has until Dec. 11 to respond. Once a response is received and reviewed, EGLE will determine if additional enforcement action against the company will be taken.
In deciding whether to approve the changes to Graphic Packaging’s air permit, EGLE sought public input during a six-week comment period that included an information session and public hearing. After a review of public comments, EGLE revised the air permit to require Graphic Packaging to permanently shut down Boiler 7 by May 1, 2022. The boiler shutdown reduces the facility’s increase in greenhouse gas emissions related to the project. Emissions from the proposed project are not expected to cause health concerns nor be a detriment to the area’s environmental quality. In addition, the air permit also requires Graphic Packaging continue operating its hydrogen sulfide Envirosuite stationary monitoring system.
As part of the requirements of its March air permit, Graphic Packaging had to develop and implement an Odor Investigation PlanResults from the investigation, which include facility perimeter and community monitoring stations for hydrogen sulfide, were sent to EGLE on Nov. 3. This investigation was required after EGLE cited Graphic Packaging eight times since 2012 for odor violations after concerns were raised by the public. EGLE has received more than 100 complaints related to the company since 2010 and more than 80 of these were for odors. Graphic Packaging is also required to submit to EGLE an Odor Minimization Plan by early January 2021.
For more information about Graphic Packaging, go to Michigan.gov/EGLEGraphicPackaging.
Dry Cleaning Business Cited for Alleged Hazardous Waste Violations
The New Mexico Environment Department (NMED) issued an administrative compliance order to D&D Mountain Air Cleaners, Inc. in Española (Mountain Air), for alleged violations of state and federal hazardous waste laws that are linked to groundwater contamination in the area. Part of the plume is also located on Santa Clara Pueblo lands. NMED has also required Mountain Air to develop a clean-up plan and begin remediation of the contamination.
A plume of contamination consisting of organic solvents common to dry cleaning operations was discovered during the site characterization at the nearby North Railroad Avenue Plume Superfund site conducted by NMED and the EPA. After careful investigation, NMED concluded that this contamination, located near Calle Chavez in Española, is not associated with the Superfund site, but is attributable to Mountain Air, located at 309 N. Paseo De Oñate. The Calle Chavez plume includes concentrations of tetrachloroethene (PCE) and trichloroethene (TCE) at levels well above federal drinking water and New Mexico state groundwater standards. However, no known drinking water supplies are currently affected.
Further investigation by NMED revealed three violations of hazardous waste laws by Mountain Air, including failure to ensure delivery of hazardous waste to an off-site treatment, storage or disposal facility; failure to obtain a hazardous waste treatment, storage and disposal permit; and failure to design, construct, maintain and operate the facility in order to minimize the potential for the release of hazardous waste to air, soil, groundwater or surface water.
“Communities like Española and the Pueblo of Santa Clara are at greater risk when businesses disregard environmental laws while regulators lack meaningful resources to assure compliance,” said NMED Cabinet Secretary James Kenney. “We are committed to ensuring proper abatement and holding MountainAir accountable.”
The enforcement action requires Mountain Air to draft procedures to ensure future proper disposal of hazardous waste and pay a civil penalty of $56,000. Separately, under state Water Quality Act provisions, NMED is pursuing actions to hold Mountain Air responsible for cleaning up the contamination. Mountain Air may choose to voluntarily clean up the groundwater contamination under groundwater abatement rules or apply to NMED’s Voluntary Remediation Program. Under either approach, Mountain Air will work with NMED to select and design an effective and expeditious abatement option for the clean-up of contaminated groundwater to benefit the community in Española and the Pueblo of Santa Clara.
If the responsible party does not voluntarily undertake clean-up efforts, NMED will vigorously pursue further enforcement action.  More information on the Calle Chavez plume is available here.
Koppers Inc. Cited for SPCC Violations
Koppers Inc. has agreed to settle with the EPA, the state of  West Virginia and the state of Pennsylvania to resolve alleged violations of federal and state environmental laws at its facilities in Follansbee and Green Spring, West Virginia, and Clairton, Pennsylvania.
A complaint filed with the settlement agreement cited violations of the Clean Water Act’s Spill Prevention, Control and Countermeasure (SPCC) and Facility Response Plan (FRP) requirements. The SPCC rules help facilities prevent a discharge of oil into navigable waters or adjoining shorelines. The FRP rules require certain facilities to submit a response plan and prepare to respond to a worst-case oil discharge or threat of a discharge.  Koppers is a Pittsburgh-based company involved in carbon materials and chemicals, railroad products and services, and performance chemicals.
Under a proposed consent decree filed in the United States District Court of the Northern District of West Virginia, Koppers will pay $800,000 to the United States, $175,000 to West Virginia, and $24,500 to Pennsylvania. The proposed consent decree is subject to a 30-day public comment period.
The complaint also cited violations of the West Virginia Above Ground Storage Tank Act and its implementing regulations, which seek to protect and conserve the water resources of the state and its citizens. In addition, the complaint cited violations of the Pennsylvania Storage Tank and Spill Prevention Act and its implementing regulations, which set forth tank handling and inspection requirements.
According to EPA, the most significant violations were at the Follansbee facility – notably, deficiencies in the facility’s secondary containment for spills, and inadequate structural integrity inspection and testing of aboveground tanks.
EPA cited other major SPCC violations at the Clairton and now-closed Green Spring facilities, and other violations of the FRP regulations at the Clairton and Follansbee facilities.
In addition to the penalty, the consent decree requires Koppers to conduct integrity testing of specified tanks at the Follansbee site, or take them out of service; and to comply with SPCC and FRP reporting and plan amendment requirements.
As part of the settlement, the company did not admit the alleged violations, but has certified that it is now in compliance with applicable requirements.
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Environmental Resource Center has openings for EHS consultants and trainers. If you are looking for a new challenge, send your resume and salary requirements to Brian Karnofsky at brian@ercweb.com.
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