EPA Allows CAA Major Sources to Become Area Sources

October 05, 2020
EPA has published a final regulation that allows a “major source” of hazardous air pollutants (HAPs) to reclassify as an “area source” at any time after acting to limit emissions. According to the Agency, this rule will encourage facilities to pursue innovations in pollution-reduction technologies and relieve regulatory requirements intended for much larger emitters.
Established in 1995, the “once-in, always-in” policy determined that any facility subject to major source standards would always remain subject to those standards—even where production processes are changed or controls are implemented that permanently reduce that facility’s potential to emit hazardous air pollutants or eliminate those emissions altogether.
“Today’s action is an important step to further President Trump’s regulatory reform agenda by providing meaningful incentives for investment that prevents hazardous air pollution,” said EPA Administrator Andrew Wheeler. “This rule, which follows on a 2018 guidance memorandum, will end regulatory interpretations that discourage facilities from investing in better emissions technology.”
“EPA’s previous OIAI policy was a strong example of a counterproductive regulation, imposing costly requirements that hurt economic growth while also providing no incentive for businesses to reduce hazardous emissions,” said U.S. Senator John Hoeven (ND). “This new rule is exactly the kind of regulatory relief that we’ve worked with the administration to provide, as it supports businesses in upgrading their operations with the latest technology, empowering a stronger economy and better environmental stewardship.”
“The ‘Once In, Always In’ policy was a clear example of counterproductive regulation. It discouraged industry from making improvements to decrease hazardous air pollutants. I applaud Administrator Wheeler on finalizing the MM2A rule. It will provide clarity in regulation, lead to cost savings, and encourage facility upgrades that will benefit air quality,” said U.S. Congressman Morgan Griffith (VA-09).
“The Trump EPA’s efforts to ensure fewer costs for industry come a high cost for human health. We can never forget that the Trump EPA finalized this clean air rollback – one in which EPA itself has acknowledged is likely to lead to higher levels of deadly air pollution – during our national battle against a deadly respiratory pandemic. It is shameful,” said U.S. Senator Tom Carper (D-Del,), top Democrat on the Senate Environment and Public Works Committee.
“EPA’s ill-conceived move lets polluters of the most toxic air pollution regulated by the Clean Air Act increase that pollution by two, five or even 10 times what they were spewing into the air before this rollback. That will expose people to more mercury, lead, arsenic, asbestos and benzene pollution—and harmful health impacts including cancer, neurotoxic effects, fetal damage and premature death,” said John Walke, clean air director in the Climate & Clean Energy program at the Natural Resources Defense Council.
According to EPA, the “once in, always in” policy discouraged facilities from modernizing and implementing voluntary pollution abatement and prevention efforts. This rule allows those “major sources” that have taken enforceable limits to reduce their emissions to reclassify as an “area source.” States and stakeholders voiced concern that the “once in, always in” policy discouraged voluntary pollution abatement and prevention efforts. By removing unnecessary monitoring, recordkeeping and reporting associated with being a major source, this rule will relieve unnecessary compliance and financial burdens from regulated entities and encourage other sources to reduce emissions. Emissions requirements will not change for existing major sources that choose not to reclassify. Sources that choose to reclassify will be subject to any applicable “area source” requirements.
EPA estimated that the changes will result in up to 1,258 tons per year of additional emissions of hazardous air pollutants and will result in cost savings when compared to the agency’s previous “once-in, always-in” policy. EPA estimates a potential cumulative savings of $16.1 million in the first year and $90.6 million (in 2017 dollars) in following years.
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OSHA’s FAQ’s on Reporting Work-Related Cases of the Coronavirus
OSHA has published additional frequently asked questions and answers (FAQs) regarding the need to report employees’ in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus.
OSHA’s new FAQs provide information to help employers apply the agency’s existing injury and illness recording and reporting requirements to the coronavirus. In particular, the FAQs provide guidance on how to calculate reporting deadlines for in-patient hospitalizations and fatalities, and clarify the meaning of the term “incident” as it relates to work-related coronavirus in-patient hospitalizations and fatalities.
Based on guidance contained in the updated FAQs, OSHA is withdrawing its citation against Winder Nursing Inc. in Winder, Georgia.
These FAQs are the latest effort by OSHA to provide employers and employees with more information about how it will enforce its standards and regulations during the pandemic. OSHA has also previously published revised enforcement guidance detailing how OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee coronavirus illnesses for all employers.
Is it OK to Follow International Dangerous Goods Regulations When Shipping Inside the US?
The DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an enforcement policy regarding international standards which notified offerors and carriers of hazardous materials that PHMSA will not take enforcement action against any offeror or carrier using these standards for the domestic or international transportation of packages by any mode of transportation.
The DOT is currently considering adoption of updated editions of the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), which have been incorporated into the 62nd edition of the IATA Dangerous Goods Regulations, and the International Maritime Organization International Maritime Dangerous Goods Code (IMDG Code) into the Hazardous Materials Regulations. According to the agency, PHMSA and its modal partners will temporarily exercise enforcement discretion against offerors or carriers of hazardous materials packages that are marked, labeled, or transported in accordance with the internationally adopted 2021-2022 Edition of the ICAO Technical Instructions or the Amendment 40-20 of the IMDG Code until otherwise stated.
New Hazardous Waste Rules Adopted in Ohio
Known as the generator improvement rules package, the new rules align Ohio’s rules with their federal counterparts. The updated hazardous waste management rules will take effect on Oct. 5, 2020.
Many of the rules in this package were designed to achieve consistency with U.S. EPA’s program for generators of hazardous waste and increase regulatory flexibility. This rule package also includes standards for hazardous waste pharmaceuticals that will align Ohio’s rules with federal Drug Enforcement Agency (DEA) requirements for handling pharmaceuticals, prohibit disposal of pharmaceuticals in sewers, and update rules for managing over-the-counter nicotine replacement therapy wastes.
This package includes rules which will exclude undeployed airbag modules and inflators from being a hazardous waste provided the generator meets specified conditions (e.g., limiting quantity and duration waste can be stored on premises). This will allow automotive repair shops to more easily manage these airbag wastes, again bringing Ohio regulations in line with new federal regulations.
For further information and to review the final rules, click here for the adopted rules and the public notice of adoption, and here for training on the new rules.
Dangerous Waste Regulations Updated in Washington
Washington has updated regulations preventing dangerous wastes from making their way into the environment. The Department of Ecology yesterday adopted rule changes to Chapter 173-303 WAC that will simplify disposal of pharmaceutical and airbag wastes and clarify rules about use of electronic Uniform Hazardous Waste Manifests. These changes will affect dangerous waste management facilities, health care facilities, and other dangerous waste generators beginning Oct. 31.
Some of the changes are required by laws requiring Ecology practices to be consistent with those of the federal Environmental Protection Agency, while other rule changes will help clarify requirements, simplify compliance, and ensure that dangerous wastes are properly and safely managed.
Ecology’s rule changes will primarily impact the health care industry and the way it manages pharmaceutical waste. Hospitals, clinics, and pharmacies will be able to designate and dispose of unused or unwanted drugs more easily by having a uniform set of rules for managing pharmaceutical wastes. Additionally, health care facilities, including small quantity generators, will no longer be allowed to dispose of dangerous waste pharmaceuticals into a sewer system.
Other rule changes include:
  • Provided better direction to vehicle repair shops on proper disposal of airbags removed from vehicles. This rule reiterates that removed airbags must be properly managed and disposed of to avoid explosions and injuries.
  • Reduces regulation of nicotine-containing over-the-counter smoking cessation products that are being discarded. These discarded products no longer must be managed as a listed acute hazardous waste.
  • Provides instructions for facilities receiving dangerous waste on electronic Hazardous Waste Manifests, including rules about Environmental Protection Agency’s e-manifest user fee system.
  • Updates biological test methods for designating dangerous wastes to remove unnecessary procedures and improve efficiency for testing laboratories.
  • Other technical clarifications and corrections.
For more information about the rule change and a list of frequently asked questions, see Ecology’s website.
Safely Get Your EHS Training at Home or in Your Office
To help you get the training you need, Environmental Resource Center has added a number of dates to our already popular live webcast training. Stay in compliance and learn the latest regulations from the comfort of your office or home. Webcast attendees receive the same benefits as our seminar attendees including expert instruction, comprehensive course materials, one year of access to our AnswerlineTM service, course certificate, and a personalized user portal on Environmental Resource Center’s website.
Upcoming hazardous waste and DOT hazardous materials webcasts:
PHMSA Advisory Bulletins Addressing Safety Recommendations for Recent Natural Gas Distribution Incidents
The DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published two advisory bulletins in the Federal Register which respond to safety recommendations issued by the National Transportation Safety Board following natural gas distribution pipeline related incidents in Silver Spring, Maryland in August 2016 and Merrimack Valley, Massachusetts in September 2018.
The advisory bulletins include:
  • ADB 2020-01 – Inside Meters and Regulators: The advisory alerts owners and operators of natural gas distribution pipelines to the consequences of failures of inside meters and regulators. The advisory also reminds operators of existing federal regulations covering the installation and maintenance of inside meters and regulators, including the integrity management regulations for natural gas distribution systems to reduce the risks associated with failures of inside meter and regulator installations.
  •  The advisory reminds owners and operators of natural gas distribution pipelines of the possibility of failure due to an overpressurization on low-pressure distribution systems. The advisory also reminds such owners and operators of existing federal integrity management regulations for gas distribution systems.
DOT Offers Administrative Discretion and Guidance for Renewal of RIN Approvals During the COVID-19 Public Health Emergency
The DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice to provide guidance and alert holders of requalification identification numbers (RIN) that it is temporarily waiving certain requalification requirements. PHMSA understands that, due to restrictions and limitations as a result of COVID-19, all RIN holders have not been able to obtain Independent Inspection Agency (IIA) pre-approval inspections as required by Hazardous Material Regulations.
An IIA inspection is required to renew RINs, which allows an entity to inspect, test, certify, repair, or rebuild certain types of cylinders and pressure receptacles. The notice informed RIN holders of an alternative approval process if they are unable to obtain an IIA inspection prior to applying for renewal of their approval.
Texas Proposal to Strengthen Environmental Penalties
The TCEQ has proposed to revise its policy on calculating environmental penalties based on statutory changes from the 86th Legislature (2019). The Agency’s Executive Director has implemented these changes in practice and this policy update is required for consistency.
The policy revision also includes significant proposed changes intended to promote a deterrence to future noncompliance by using additional tools within the Policy to impact the assessment of administrative penalties.
The proposal will increase to the percentages for actual releases in Table 6 to better distinguish between actual and potential releases, as follows:
The proposal would also educe the number of events for a continuous violation to smaller units to provide a more accurate assessment of the violation’s duration.
In addition to the policy revisions, the commission is beginning the rulemaking process to revise 30 Texas Administrative Code (TAC) Chapter 60, Compliance History. The proposed revision would allow the executive director to change a site’s compliance history classification to a new classification if that site has caused, suffered, allowed, or permitted the creation of exigent circumstances, such as a major explosion or fire that impacts the surrounding community and environment. See more information on this rule project.
NJ DEP Decisions to Be Guided by Environmental Justice Principles
The New Jersey Department of Environmental Protection issued guidance according to Governor Murphy’s Executive Order 23 that will assist all state government agencies in furthering the promise of environmental justice, DEP Commissioner Catherine R. McCabe announced.
As Governor Phil Murphy noted upon signing the nation’s most empowering environmental justice law on September 18, when the whole of government works to fulfill the promise of environmental justice, all New Jersey communities can thrive together.
The guidance is part of the Murphy Administration’s commitment to protecting overburdened communities, specifically those that are primarily minority, have limited proficiency in English, or economically disadvantaged, from environmental contaminants, such as air pollution. It is available for download from the DEP’s Office of Environmental Justice website.
Furthering the Promise: a Guidance Document for Advancing Environmental Justice Across State Government directs executive branch departments and agencies to apply the principles of environmental justice to their operations, participate in the newly-formed Environmental Justice Inter-Agency Council and create assessments and action plans to improve the agencies’ effects on environmental justice communities.
“New Jersey’s state government must lead by example,” wrote Governor Murphy in his introductory message in Furthering the Promise. “Every day, our programs and policies impact the lives of environmental justice communities. And now, I’m pleased to provide New Jersey’s executive branch with tools to better evaluate those impacts and set key milestones – recognizing where programs may have inadvertently put public health burdens on our most disadvantaged communities and identifying opportunities to increase environmental and public health protections in the future.”
“New Jersey continues to lead the nation in its strides to promote environmental justice,” said DEP Commissioner Catherine R. McCabe. “While the state’s new environmental justice law requires government to look outward at certain entities we regulate to help avoid disproportionate impacts on EJ communities, this Guidance requires government to look inward—at our policies, protocols, and practices, to imbue the principles of environmental justice into government decision-making processes. When government sews the principles of environmental justice into its work, we can—over time—deliver on the promise of lived equality for all New Jerseyans.”
“When we know better, we can do better,” said Deputy Commissioner for Environmental Justice and Equity Olivia Glenn. “Furthering the Promise helps to create alignment across state government and empowers state government to better acknowledge our actions, improve involvement with the community, reduce public health threats, increase environmental public health benefits, and strengthen New Jersey’s neighborhoods and communities. The DEP, guided by our Environmental Justice Interagency Council (EJIC), will be a convening force for this improvement and we look forward to sharing our progress.”
As outlined in Executive Order 23, Furthering the Promise applies directly to the principal departments in the executive branch of New Jersey state government and any agency, authority, board, commission and any independent state authority, commission, instrumentality, or agency over which the Governor exercises executive authority, as determined by the Attorney General. The guidance outlines three initiatives critical to aligning New Jersey state government to achieve environmental justice goals:
  • Apply principles for furthering the promise of environmental justice in New Jersey, as identified by impacted communities and decades of local, state, and federal experience. These principles include: cultivate awareness consistently; empower communities to participate in decision making processes; and plan for and embrace change.
  • Launch the Environmental Justice Interagency Council (EJIC). The EJIC will convene to help agencies adopt the principles; complete executive branch initial assessments; participate in workshops and trainings; and create executive branch action plans.
  • Complete executive branch initial assessments and executive branch action plans. executive branch initial assessments will help identify existing practices and procedures throughout state government, as well as shape required education and collaboration.
The initial activities set forth in Furthering the Promise are planned to begin in 2020, including the first Environmental Justice Interagency Council meeting in November and this fall, the DEP’s assessment of its own environmental and public health challenges and benefits.
The publication of Furthering the Promise comes just weeks after Governor Murphy signed one of the nation’s strongest environmental justice bills on September 18. The new law requires the New Jersey Department of Environmental Protection to evaluate the environmental and public health impacts of certain facilities on overburdened communities when reviewing certain permit applications.
The new legislation and Furthering the Promise guidelines are part of the DEP’s continued environmental justice activities this year, including:
Record $8 Million CWA Settlement
EPA and the Department of Justice announced a settlement with the Churchill Downs Louisiana Horseracing Company LLC, d/b/a Fair Grounds Corporation (Fair Grounds) that will resolve years of Clean Water Act (CWA) violations at its New Orleans racetrack. Under the settlement, Fair Grounds will eliminate unauthorized discharges of manure, urine and process wastewater through operational changes and construction projects at an estimated cost of $5,600,000. The company also will pay a civil penalty of $2,790,000, the largest ever paid by a concentrated animal feeding operation in a CWA matter.
“This consent decree will halt discharges of manure, urine, and contaminated wastewater from the Fair Grounds racetrack into the London Avenue Canal, which flows into Lake Pontchartrain,” said Susan Bodine, EPA Assistant Administrator for the Office of Enforcement and Compliance Assurance. “As a result, we are protecting opportunities by the community to use these waters for fishing and other recreational activities.”
“We are pleased to announce an agreement with Churchill Downs to address years of Clean Water Act violations at its Fair Grounds Racetrack in New Orleans,” said Principal Deputy Assistant Attorney General Jonathan Brightbill of the Justice Department’s Environment and Natural Resources Division. “This consent decree will stop the flow of untreated process wastewater into the local sewer system, which leads to local waters used for fishing and ultimately Lake Pontchartrain, in a way that recognizes the challenges presented by the racetrack’s urban location.”
“Safeguarding the environment is one of the highest priorities for the Department of Justice,” said U.S. Attorney for the Eastern District of Louisiana (EDLA), Peter G. Strasser. “The U.S. Attorney’s Office, EDLA is committed to continue working with its Federal partners to investigate and hold entities accountable when they neglect their professional and legal obligations and threaten the environment, which places the public and the ecosystem in Southeastern Louisiana at risk.”
The United States’ complaint alleges that Fair Grounds violated the Clean Water Act, including the terms and conditions of its Louisiana Pollutant Discharge Elimination System (LPDES) permit issued pursuant to Section 402 of the CWA. Specifically, the complaint alleges that, since at least 2012, Fair Grounds has regularly discharged untreated process wastewater into the New Orleans municipal separate storm sewer system, leading to the London Avenue Canal, Lake Pontchartrain, the Mississippi River, and ultimately to the Gulf of Mexico. Fair Grounds’ permit prohibits any discharge unless there is a significant rain event (i.e., when 10 inches of rain falls in 24 hours).
In violation of their permit, Fair Grounds has discharged wastewater after as little as a half-inch of rain, as well as in dry weather. The complaint alleges that unauthorized discharges of contaminated wastewater occurred more than 250 times between 2012 and 2018. The untreated wastewater contains manure, urine, horse wash water, and other biological materials that are “pollutants” as defined by the CWA, the facility’s permit, and the applicable EPA and Louisiana Department of Environmental Quality (LDEQ) regulations.
Fair Grounds is a horse racing facility located in New Orleans, La. and is surrounded by residential neighborhoods that are considered environmental justice communities. The London Avenue Canal flows through neighborhoods that have been designated as opportunity zones.
The Fair Grounds’ New Orleans racetrack is a large CAFO, and during a typical horse racing season, Fair Grounds stables as many as 1,800 horses or more at one time. The facility includes a 38.8-acre production area that includes stables, horse stall barns and receiving barns, horse wash racks, horse walkways, manure storage areas, and storage areas for raw materials. The facility also includes a one-mile dirt racetrack and a 7/8-mile turf racetrack, the infield area, the grandstand, the casino, and associated parking areas.
As part of the settlement, Fair Grounds will implement best management practices and construction projects designed to eliminate unauthorized discharges and ensure compliance with its permit and the CWA. Fair Grounds will also perform site-specific sampling, monitoring and hydraulic modeling to help the company and EPA determine whether the remedial actions required by the consent decree are successful in eliminating unauthorized discharges. Furthermore, the consent decree includes a provision requiring Fair Grounds to implement additional remedial measures if these measures do not successfully eliminate unauthorized discharges.
This case is precedential because it includes the highest civil penalty ever collected by the EPA in a CWA enforcement action against a CAFO. This case is part of EPA’s National Compliance Initiative for Reducing Significant Noncompliance with National Pollutant Discharge Elimination System Permits.
The settlement was lodged in the U.S. District Court for the Eastern District of Louisiana and is subject to a 30-day public comment period. The penalty is due within 30 days of the effective date of the consent decree.
Fiat Chrysler Agrees to Pay $9.5 Million Penalty for Disclosure Violations
The Securities and Exchange Commission announced that Fiat Chrysler Automobiles N.V., a London-based public company that sells vehicles through its Michigan-based subsidiary, agreed to settle charges that it made misleading disclosures about an internal audit of its emissions control systems.
The SEC’s order found that in February 2016, FCA represented in both a press release and an annual report that it conducted an internal audit which confirmed that FCA’s vehicles complied with environmental regulations concerning emissions. As found in the order, FCA’s statements did not sufficiently disclose the limited scope of its internal audit, which focused only on finding a specific type of defeat device, or that the audit was not a comprehensive review of FCA’s compliance with U.S. emissions regulations. In addition, at the time FCA made these statements, engineers at the U.S. Environmental Protection Agency (EPA) and California Air Resource Board (CARB) had raised concerns to FCA about the emissions systems in certain of its diesel vehicles.
“This case demonstrates the importance of public companies providing accurate and complete information to investors,” said Joel R. Levin, Regional Director of the SEC’s Chicago Regional Office. “At a time of heightened scrutiny of automakers’ regulatory compliance, FCA provided misleading assurances to investors by not disclosing the limitations of its internal audit.”
The SEC’s order found that FCA violated the reporting provisions of the federal securities laws. Without admitting or denying the SEC’s findings, FCA agreed to cease and desist from committing violations of these provisions and to pay a $9.5 million civil penalty.
The SEC’s investigation was conducted by Michelle Muñoz Durk, Christine Jeon, Amy Hartman, and Timothy Tatman of the Chicago Regional Office and supervised by Jeffrey Shank and Daniel Michael of the Complex Financial Instruments Unit. Trial attorneys Robert Moye and Timothy Stockwell assisted with this matter. The SEC thanks the EPA and CARB for their cooperation and assistance in this matter.
EQM Cited for Stabilization, Erosion and Sedimentation Violations in Greene, Washington, and Westmoreland Counties
The Pennsylvania Department of Environmental Protection (DEP) recently finalized the last of three settlements and assessed civil penalties against EQM Gathering OPCO, LLC (EQM) totaling $427,650 for slips, stabilization, and erosion and sedimentation violations at pipeline sites in Greene, Washington and Westmoreland counties.
“We devote significant time and resources to demand compliance with environmental permits, laws, and regulations to hold operators accountable across DEP programs and in collaboration with county conservation districts,” said DEP Secretary Patrick McDonnell.
On September 1, 2020, DEP entered into a consent order and agreement (COA) with EQM for violations that occurred from 2016 through 2019 during construction of its NIMA D0001/S004/S005 oil and gas pipeline project located in Franklin, Washington, and Morgan townships, Greene County and Amwell Township, Washington County as well as the TP-4555 pipeline located in Derry Township, Westmoreland County.
The Greene, Washington, and Westmoreland county conservation districts each conducted numerous inspections of the sites in their respective counties and found that EQM failed to implement and/or maintain effective erosion and sedimentation control best management practices (BMPs) to minimize the potential for accelerated erosion and sedimentation. EQM also failed to implement its Preparedness, Prevention, and Contingency Plan; failed to perform required reporting and recordkeeping; failed to comply with conditions of its permits; and failed to permanently stabilize areas of construction for one of the sites in Greene County.
These violations led to discharges of bentonite or sediment-laden water to enter Loyalhanna Creek, Ruff Creek, and an unnamed tributary to Boyd Creek—all warm water protected use fisheries—as well as Little Chartiers Creek, Tenmile Creek, Little Tenmile Creek, and an unnamed tributary to Little Tenmile Creek—all trout stocked protected use fisheries.
This COA requires EQM to repair all seven slips it had not previously repaired, provide notice and a repair schedule for any new slips to DEP and county conservation districts and pay an $82,650 civil penalty in addition to cost recovery totaling $2,634 to the respective conservation districts.
In the nine months preceding this settlement, DEP reached two additional agreements with EQM to address violations in Washington and Greene counties.
In February 2020, DEP executed a consent assessment of civil penalty (CACP) with EQM for violations that occurred in March and April 2018 during construction of its NIRI S001 pipeline located in Jefferson Township, Greene County. The CACP includes a civil penalty assessment of $250,000.
Sediment laden water from an approximately 150-foot slide overtopped erosion and sedimentation control BMPs at the NIRI S001 pipeline site. During a follow-up inspection DEP documented that the slide area and numerous sections of the pipeline were not stabilized and showed signs of accelerated erosion and sedimentation, BMPs were not properly installed or maintained, and sediment laden water overtopped numerous erosion and sedimentation controls and flowed into unnamed tributaries of South Fork Tenmile Creek and associated wetlands, which are high quality waters of the commonwealth.
Less than a month after the slide, EQM had corrected the violations by stabilizing the pipeline and slide area and repairing or replacing the erosion and sedimentation BMPs.
DEP also executed a COA with EQM in December 2019, that addressed violations that occurred in 2016 and 2017 during construction of the NIMA S0001/S0003 oil and gas pipeline in Amwell, North Bethlehem, and Somerset townships, Washington County.
The Washington County Conservation District (WCCD) conducted several inspections of the site and documented EQM’s failure to implement effective BMPs to minimize erosion and sedimentation, failure to stabilize areas of earth disturbance, earth disturbance activities that created the potential for sediment pollution, sediment pollution and failure to comply with permit conditions. The discharges, including fill, from the construction site entered a private pond on property EQM leased for the pipeline right-of-way and Little Tenmile Creek—a trout stocked protected use fishery.
The COA required EQM to pay a $95,000 civil penalty to DEP and a $1,960 in cost recovery to the WCCD and outlined a corrective action plan for stabilization and restoration work as well as monitoring of the private pond and right of way and reporting to DEP.
Little Tenmile Creek and South Fork Tenmile Creek are tributaries of Tenmile Creek.
Ohio Man Guilty of Paying Co-Conspirator to Illegally Dump Drums of Hazardous Waste
Khaled Ebrigit pleaded guilty in the Southern District of Ohio before U.S. District Judge Edmund A. Sargus Jr. to conspiring to illegally transport and dispose of hazardous waste at several area apartment complexes.
According to court documents, in October 2018, Ebrigit of Columbus, Ohio, paid and directed Martin Eldridge of Williamsport, Ohio, to dump drums of hazardous waste near dumpsters at several apartment complexes throughout Columbus.
Ebrigit knew the material was hazardous and did not have a permit to dispose of it.
In total, six 55-gallon drums and 64 10-gallon drums were dumped at six residential apartment complexes in Columbus. Many of the drums were labeled with brightly colored warning labels with symbols and written statements indicating “flammable” and “irritating,” and with a detailed listing of hazards and precautions including but not limited to “[h]ighly flammable,” “[i]rritating to eyes,” and “[t]ake precautionary measures against static discharges.” Many of the drums were leaking.
As a result of the dumping, the Ohio Environmental Protection Agency (EPA), Franklin County Sheriff’s Office, Columbus Fire Department and Columbus Division of Police responded to reports of illegal dumping and cleaned the various sites.
As part of his plea, Ebrigit agreed to pay at least $30,000 in restitution.
Specifically, Ebrigit pleaded guilty to one count each of conspiring to illegally transport hazardous material, transporting hazardous material and disposing of hazardous material.
Eldridge pleaded guilty in December 2019 to the same three crimes.
The U.S. EPA Criminal Enforcement Program, Ohio EPA, and Franklin County Sheriff’s office investigated the case.
Trial Attorney Adam C. Cullman of the Environment and Natural Resources Division’s Environmental Crimes Section, Assistant U.S. Attorney J. Michael Marous of the Southern District of Ohio, and Special Assistant U.S. Attorney Heather Robinson from Franklin County Prosecutor Ron O’Brien’s office are representing the United States in this case.
Company Owner Fined $19,325 for Hazardous Waste Violations
Martin Zuponcic, of Cook, Minn., has paid a $19,325 civil penalty to the Minnesota Pollution Control Agency (MPCA) for a series of hazardous waste violations at SurTec, Inc., a former chrome-plating business in Eveleth. Zuponcic owned SurTec until it closed in 2019.
In August 2018, the City of Eveleth’s wastewater treatment plant notified the MPCA of an unknown green liquid flowing into its facility. This was traced back to the SurTec facility. MPCA inspections confirmed that chromium was spilled inside SurTec, and an undetermined amount went down drains that lead to the treatment plant. Inspections also revealed that SurTec had been operating for more than three years without a valid hazardous waste generator license, or required operating permits.
The specific violations included failing to properly manage and dispose of hazardous wastes, and failing to notify the State Duty Officer and the MPCA of the chromium spill.
In addition to paying the civil penalty, Zuponcic provided documentation that the SurTec facility was cleaned, and remaining hazardous wastes were properly disposed of, before the business was closed.
When calculating penalties, the MPCA takes into account how seriously the violations affected the environment, whether they were first-time or repeat violations, and how promptly the violations were reported to authorities. The agency also attempts to recover the economic benefit the company gained by failing to comply with environmental laws in a timely manner.
Central Bi-Products Facilities Fined $130,000 for Wastewater Violations
Farmers Union Industries, LLC, has agreed to pay $130,000 for wastewater overflow and other violations at its Central Bi-Products rendering plants in Redwood Falls and Long Prairie. The primary violations included operating wastewater treatment ponds above the permitted maximum level.
Central Bi-Products processes animal carcasses into feed and fat products. Both the Redwood Falls and Long Prairie facilities processed significantly more raw material in 2018 than amounts submitted in their permit application. The additional raw material processing created additional wastewater volume, which contributed to elevated wastewater pond levels.
A wastewater pond at the Redwood Falls facility overflowed in March 2019 and released between 112,000 and 336,000 gallons, some of which reached wetlands in the Minnesota River floodplain. The MPCA had previously informed the Redwood Falls facility about pond level requirements. Other violations included the unauthorized release of raw material liquids, and shortfalls in reporting and recordkeeping.
Through its stormwater discharges, the Long Prairie facility sent raw material liquids into the nearby Long Prairie River or wetlands. It failed to keep levels in its wastewater treatment ponds low enough. It discharged fuel from its diesel fuel dispensing area and storage-tank secondary containment structure. Other violations included improper stormwater sampling procedures, and failure to include all sampling results in compliance reports.
Both sites have attained compliance with their permit requirements and will be monitoring groundwater, doing pond water-balance testing, adopting alternative wastewater treatment options, setting up training, and creating an emergency response plan.
How a Toxic Chromium Species Could Form in Drinking Water
The water crisis in Flint, Michigan, brought much-needed attention to the problem of potentially toxic metals being released from drinking water distribution pipes when water chemistry changes. Now, researchers reporting in ACS’ Environmental Science & Technology have investigated how hexavalent chromium, known as Cr(VI), can form in drinking water when corroded cast iron pipes interact with residual disinfectant. Their findings could suggest new strategies to control Cr(VI) formation in the water supply.
The metal chromium, known as Cr(0), is found in cast iron alloy, which is the most widely used plumbing material in water distribution systems. As pipes corrode, a buildup of deposits, known as scale, forms on the pipes’ inner walls. Trace chemicals in water can react with scale, forming new compounds that could be released into the water. Some of these compounds contain Cr(VI), which, at high doses, can cause lung cancer, liver damage, reproductive issues and developmental problems. In 2014, California set a drinking water standard of 10 μg/L Cr(VI), but the guideline was later withdrawn because no economically feasible treatment to remove Cr(VI) from tap water existed. Haizhou Liu and colleagues wanted to find out how exactly Cr(VI) makes its way into drinking water, which might reveal new ways to prevent its formation.
The researchers collected two sections of cast iron pipe from two drinking water distribution systems in the U.S.: one from a system using groundwater with naturally high Cr(VI) levels (11–24 μg/L), and the other from a system using surface water with undetectable Cr(VI). The team scraped off scale from the pipes and analyzed its composition. The levels of total Cr were about 18 times higher in the first pipe than in the second. In both pipes, chromium existed in two oxidation states, Cr(0) and Cr(III). When the researchers added a chlorine- or bromine-containing disinfectant to the scale, it quickly reacted with Cr(0), rather than Cr(III) as previously suspected, to form Cr(VI). To help mitigate Cr(VI) levels, adding less-reactive disinfectants to treat drinking water could be explored, and cast iron pipes with chromium alloy should be used with caution, the researchers say.
Hawaii’s Largest Refrigerated Food Warehouse Fined $210,564 for RMP Violations
EPA announced a settlement with Unicold Corporation to resolve alleged violations of the federal Clean Air Act at Unicold’s cold storage and distribution facility in Honolulu, Hawaii. The violations pertain to the Clean Air Act’s chemical accident prevention requirements. Unicold will pay a $210,564 civil penalty and implement changes to reduce the risk of chemical accidents at its facility.
“Ensuring facilities reduce the risk of releases of toxic substances like anhydrous ammonia is critical,” said EPA Pacific Southwest Regional Administrator John Busterud. “We’re pleased that Unicold will work to make Hawaii’s largest refrigeration facility safer as a result of this settlement.”
In March 2019, EPA’s inspection found that Unicold’s industrial refrigeration system violated the Clean Air Act’s Risk Management Plan regulations by failing to safely manage large quantities of anhydrous ammonia, a toxic chemical highly corrosive to skin, eyes and lungs. Proper development and implementation of a risk management plan helps facilities that store large amounts of regulated hazardous substances prevent and prepare for chemical accidents.
The inspection revealed that the ammonia refrigeration system was not designed to meet current safety standards. In addition, the facility’s written management system – developed to carry out the risk management plan – was deficient as components were either out of date or not being implemented. The inspection also found several deficiencies, including but not limited to:
  • Failure to label and protect anhydrous ammonia pipes and equipment from potential forklift strikes;
  • Failure to adequately maintain ammonia piping and equipment from ice build-up and corrosion;
  • Failure to establish written procedures for inspection, testing, and maintenance tasks for the Facility’s three engine room emergency ventilation systems;
  • Failure to have accurate operating procedures;
  • Failure to correct equipment deficiencies and document an appropriate response compliance audit and process hazard analysis findings;
  • Failure to install air tight doors to the engine rooms with panic hardware or adequate labeling; and
  • Failure to install eyewash and safety shower systems both inside and outside each of the facility’s engine rooms.
For more information on the Risk Management Plan requirements under the Clean Air Act, please visit: https://www.epa.gov/rmp. For more information on EPA’s National Compliance Initiative related to reducing risks of accidental releases at ammonia refrigeration facilities, see https://www.epa.gov/enforcement/national-compliance-initiative-reducing-accidental-releases-industrial-and-chemical.
Federal Court Requires EPA to Enforce Civil Rights
On October 2, a federal court ruled that the EPA violated the law by waiting a decade or more to investigate civil rights complaints filed by community groups across the country. The lawsuit challenged EPA’s failure to protect civil rights in the environmental context. Five communities filed the litigation, arguing that EPA had failed to complete civil rights investigations within 180 days as required by law.
Community-based groups in California, Michigan, Texas, Alabama, and New Mexico filed civil rights complaints with the EPA between 1992 and 2003 alleging racial discrimination in the permitting of polluting facilities by state and regional agencies. EPA neglected the complaints until the communities filed suit in 2015 to compel EPA to enforce civil rights law. Under pressure from the lawsuit, EPA finally started to pay attention to these civil rights complaints, but — like in most cases — ended up conducting only cursory investigations and closed the book on the cases. The court found that EPA’s belated investigations did not end the lawsuit and that requiring EPA to respond in a timely matter to future civil rights complaints is appropriate.
For some communities, the court’s ruling was welcome but EPA’s failure to enforce the law over time still stung. “This is a case of both justice delayed and justice denied,” said Phyllis Gosa, who filed a complaint under Title VI of the Civil Rights Act of 1964 against the Alabama Department of Environmental Management (ADEM) in 2003, one of the cases that EPA recently closed. “We waited more than fifteen years for nothing: EPA didn’t come to our community, test the water, or test the air. Meanwhile, we feel that the landfill that ADEM allows to operate in the heart of our community threatens to destroy our way of life.”
Ronald Smith, whose mother helped to file the Alabama complaint in 2003, stated, “We have a right to equal treatment from the Alabama government. If we don’t fight, all our history and land will be covered by this landfill.” The waste that is shipped to the landfill from multiple counties in Alabama and Georgia makes everyday life unbearable in this tight-knit community, which traces its history to Reconstruction-era land grants to former slaves. “Between the trucks, the smells, and the buzzards, there’s no peace in our community anymore,” added Gosa.
The Civil Rights Act of 1964 prohibits states and other recipients of federal funds from discriminating on the basis of race or national origin, and gives federal agencies responsibility for enforcing the law. Aggrieved community members have the right to file civil rights complaints with EPA, and EPA must complete investigations within 180 days of accepting the complaint. “Communities cannot sue civil rights violators directly in court,” explained Yale Law School Environmental Justice Clinic student Yume Hoshijima, “so we need to count on EPA to enforce its own rules.”
In Flint, Michigan, the St. Francis Prayer Center filed what was the oldest pending civil rights complaint languishing at EPA. In 1992 the Prayer Center alleged that the Michigan Department of Environmental Quality (MDEQ) discriminated by, among other things, treating African Americans who sought to testify during the permitting process differently from whites. In 2017, twenty-five years after the Prayer Center filed the complaint but one week after EPA filed papers to dismiss the litigation, EPA issued its second-ever finding of discrimination in response to the Prayer Center complaint. Yet EPA also closed the case without requiring any remedy. “It’s unbelievable: we waited twenty-five years and once we file litigation, EPA finally makes a finding of discrimination, but then EPA doesn’t require any changes to the permit or to policies at MDEQ. Instead, EPA kicked the can down the road, saying that it was going to engage in discussions with MDEQ but not even include the St. Francis Prayer Center in the negotiations,” stated Father Phil Schmitter, one of the leaders of the Prayer Center.
“Today’s decision affirms that EPA cannot continue going through the motions without meaningfully attending to serious problems of environmental discrimination,” stated Suzanne Novak, staff attorney at Earthjustice. “EPA must now secure real changes and ensure civil rights compliance by states and regional authorities that receive EPA funding. How long do communities overburdened with polluting facilities have to wait for justice?”
Earthjustice and the Environmental Justice Clinic at Yale Law School represent Californians for Renewable Energy, the Ashurst Bar/Smith Community Organization, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club, and Michael Boyd in their action against EPA.
Job Openings at Environmental Resource Center
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.
Grocery Stores Cited for COVID-19 Violations
Cal/OSHA has cited five grocery stores in Southern California for failing to protect their employees from COVID-19. The retailers listed below were cited for various health and safety violations including some classified as serious, with proposed penalties ranging from $13,500 to $25,560.
“Grocery retail workers are on the front lines and face a higher risk of exposure to COVID-19,” said Cal/OSHA Chief Doug Parker. “Employers in this industry must investigate possible causes of employee illness and put in place the necessary measures to protect their staff.”
The stores cited for COVID-19 and other safety and health violations include:
Employer Name
Worksite Location
Culver City
West Hollywood
Sherman Oaks
Studio City
*Food 4 Less
Los Angeles
*Did not provide physical distance between employees and customers
The grocery stores above, owned and operated by Cincinnati-based Kroger Company, were cited for failing to protect workers from exposure to COVID-19 because they did not update their workplace safety plans to properly address hazards related to the virus.
The Food 4 Less in Los Angeles and Ralphs grocery stores in Studio City, Sherman Oaks and West Hollywood put their workers at risk for serious illness by allowing too many customers in the store, which prevented workers from maintaining at least 6 feet of physical distance.
The Studio City location exposed workers in the cheese department to hazards related to COVID-19 as they did not install physical barriers between employees and customers. Plexiglas or other required barriers were not installed at registers 1-8 at the West Hollywood location.
Cal/OSHA inspectors determined that both the Culver City and West Hollywood locations failed to provide effective training for their employees, including instruction on how the virus is spread, measures to avoid infection, signs and symptoms of infection, and how to safely use cleaners and disinfectants.
The Culver City and Sherman Oaks grocery stores failed to report a worker’s fatal COVID-19 illness at each location. Cal/OSHA learned of the fatality seven days after the worker’s death in Culver City, and six days after the fatality in Sherman Oaks.
Cal/OSHA has created guidance for many industries in multiple languages including videos, daily checklists and detailed guidelines on how to protect workers from the virus. This guidance provides a roadmap for employers on their existing obligations to protect workers from COVID-19.
Cal/OSHA reminded employers and workers that any suspected cases of COVID-19 must be promptly reported to the local public health department. California employers must also report to Cal/OSHA any serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when they knew or should have known of the illness.
Environmental Resource Center Update
The health and wellbeing of our employees, customers and our communities is what matters most to all of us. To continue to serve you, our seminars have been converted to live online webcasts. You can find a list of upcoming live webcasts at this link.
If you have enrolled in a seminar in September through December, in most cases the seminar will be held on approximately the same dates and at the same times via online webcast. We will contact you by phone or email regarding the details on how to attend the class. On-site training and consulting services are proceeding as usual. If you wish to convert these to remote services, please call your Environmental Resource Center representative or customer service at 800-537-2372.
Because many of our live and on-site training sessions have been postponed or canceled, we have staff available to assist you in coping with COVID-19 as well as your routine EHS requirements. If you have EHS staff that have been quarantined, we can provide remote assistance to help you meet your ongoing environmental and safety compliance requirements. For details, call 800-537-2372 x 224.
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