EPA Ordered to End Delay of Chemical Disaster Rule

August 20, 2018
Community groups, represented by Earthjustice, won key protections that safeguard the public and first responders from chemical disasters. The United States Court of Appeals for the District of Columbia ruled that the Environmental Protection Agency’s (EPA) delay of implementation of EPA’s Chemical Disaster Rule was unlawful. Industry will now need to implement the life-saving protections of that rule. The EPA had been delaying implementation of the rule since March 2017 based on petitions from industry trade associations. EPA stated it wanted to reconsider the rule.
EPA originally developed the rule after communities around the country submitted a petition in 2012 asking EPA to protect them from the constant fires, explosions, and spills they were being exposed to. In 2013, President Obama signed an Executive Order to address community preparedness and government coordination following various tragic incidents at chemical facilities including a fire that broke out at the West Fertilizer Company plant in West, Texas in 2013 where a total of 15 people died, including 12 volunteer first responders. The Chemical Disaster Rule amended EPA’s Risk Management Program and requirements to coordinate more with emergency responders before a chemical emergency begins, to share information about chemical threats with community members, to better investigate disasters and near misses, and to assess whether safer technologies or alternatives are available to save lives and prevent injuries to workers, communities, and first-responders. As the Court explained, “The Chemical Disaster Rule is the most recent outgrowth of Congress’s effort in the 1990 Amendments [to the Clean Air Act] to ensure adequate protections against highly dangerous releases of chemicals.”
Shortly after coming into office, the Trump EPA suspended these critical disaster prevention and safety measures. This new ruling means that industry will need to start implementing practices that protect approximately 177 million people living in the worst-case scenario zones for an industrial chemical disaster.
“The government cannot withdraw critical safety rules based on political whim—people’s lives should come first,” said Earthjustice attorney Gordon Sommers. “Today’s court decision is a victory for communities around the United States who have worked for years to win stronger protections from chemical disasters, and a reminder to President Trump’s EPA that no one is above the law.”
The Court held that EPA’s action “makes a mockery of the statute.” Finding the delay unreasonable and illegal, the Court ordered it to be vacated.
During Trump EPA’s unlawful delay of the Chemical Disaster Rule alone, over 58 major incidents have occurred around the United States, including the 10-mile evacuation at the Husky Refinery on April 26, 2018 in Wisconsin affecting thousands of people, where the Chemical Safety Board recently released an update on its investigation.
Earthjustice represented the Union of Concerned Scientists, Environmental Integrity Project, Sierra Club, Coalition For A Safe Environment (Wilmington, CA), Del Amo Action Committee (Torrance, CA), California Communities Against Toxics, Louisiana Bucket Brigade, Air Alliance Houston, Community In-Power & Development Association (Port Arthur, TX), Texas Environmental Justice Advocacy Services, Clean Air Council (Philadelphia, PA), Utah Physicians for a Healthy Environment, and Ohio Valley Environmental Coalition (West Virginia).
Hazardous Waste Training
Annual hazardous waste training is required for anyone who generates, accumulates, stores, transports, or treats hazardous waste. Learn how to manage your hazardous waste in accordance with the latest state and federal regulations.  Learn how to complete EPA’s new electronic hazardous waste manifest, and the more than 60 changes in EPA’s new Hazardous Waste Generator Improvements Rule. Environmental Resource Center’s Hazardous Waste Training is available at nationwide locations, and via live webcasts. If you plan to also attend DOT hazardous materials training, call 800-537-2372 to find out how can get your course materials on a new Amazon Fire HD10 tablet at no extra charge.
Nebraska Permit Matrix: A Tool to Make Compliance Easy and Simplify the Permitting Process
The Nebraska Department of Environmental Quality has developed a Permit Matrix, which is an online tool to help new and expanding businesses better understand permit-related issues.
The Permit Matrix is an Excel document that provides a menu and links to an extensive amount of permit-related information. It contains links to forms or online application systems, guidance documents, program overviews, regulations, supporting NDEQ web pages, and additional local, state, regional and federal resources.
The purpose of the matrix is to provide an online tool for gathering relevant permit information to help make compliance easy. It can be a useful tool for:
  • Prospective businesses that are considering options to open a facility in Nebraska;
  • Companies that may be considering an expansion to an existing facility;
  • Facilities that needs to install an emergency generator, incinerator, or boiler; 
  • Others who want to learn more about business and environmental permits, such as: livestock producers, wastewater operators, regulatory professionals, business consultants, environmental managers and students. 
The Permit Matrix can be found at NDEQ’s website, http://deq.ne.gov. Click on the Environmental Assistance tab, and then select the box that has a link to the Permit Matrix. The direct URL is http://deq.ne.gov/publica.nsf/pages/18-011. The Excel file may be downloaded, and NDEQ encourages those who use this tool to check back for periodic updates.
NDEQ recommends starting with the introduction page of the matrix, which provides an overview of the questions to get started, as well as explanations for navigating the matrix. NDEQ welcomes and encourages feedback on how we may improve the tool. Suggestions may be sent to NDEQ.moreinfo@Nebraska.gov.
If you have questions about the matrix or other permit-related issues, please contact the NDEQ’s Small Business and Public Assistance Coordinators at 402-471-8697 or 402-471-4251.
Grain Craft Inc. Fined for Failing to Submit Air Permit Annual Reports
The Oregon Department of Environmental Quality has fined Grain Craft Inc. $1,600 for failing to submit its 2017 annual report to DEQ on time. Timely submittal of annual reports is a requirement of the company’s Air Contamination Discharge Permit.
DEQ issued this penalty because annual reports are an important way for DEQ to determine whether companies are working within the operational and emission limits allowed by the permit, and to ensure emissions are within levels that do not cause harm to the public’s health or the environment.
Grain Craft Inc. has paid the penalty amount in full thus waiving the right to an appeal.
Soil Reclamation Facility Fined $8,500 Penalty by MassDEP for Violating Solid Waste Regulations
The owners and operator of a soil reclamation facility at Jordan Farm in Rutland, Massachusetts have been assessed an $8,500 penalty by the Massachusetts Department of Environmental Protection (MassDEP) for violating solid waste regulations. Brian H. Jordan, Randy E. Jordan, and Lighthouse Environmental Management, LLC, reached a settlement with MassDEP for failing to operate the soil reclamation facility in accordance with a prior consent order.
In August 2015, the Jordans and Lighthouse entered into a consent order with MassDEP to manage the importation of approximately 200,000 tons of soil at Jordan Farm. The order set forth various requirements for the testing and reporting of soil being imported to the farm. An audit of documentation and an inspection by MassDEP identified violations of the consent order’s requirements for independent third-party inspections, timely submittal of reports, and groundwater monitoring.
As a result of the settlement, the Jordans and Lighthouse have agreed to additional testing and reporting requirements. In lieu of paying the assessed penalty of $8,500, Lighthouse will conduct a supplemental environmental project for the Town of Rutland by providing $12,500 worth of in-kind services to the Department of Public Works by crushing stockpiled rubble and rock to be used as a base for a new town library parking lot.
“Soil reclamation facilities provide an important opportunity to allow soil that does not contain reportable levels of contaminants to be managed appropriately,” said Mary Jude Pigsley, director of MassDEP’s Central Regional Office in Worcester. “Inspections and reporting are essential for ensuring these facilities are operating properly.”
$21,400 Penalty for Violating Waste Site Cleanup Regulations
The MassDEP has assessed a penalty of $21,400 to Landtree Design, Inc., and property owners David J. Babin and Janet M. Babin, for violating oil and hazardous materials cleanup regulations for a release of oil at 93 Hollis Street in Pepperell, Massachusetts. MassDEP found that the company and owners failed to report the oil release, obtain approval prior to conducting cleanup actions, and properly store contaminated soils that were excavated.
On October 31, 2017, approximately 80 gallons of fuel oil was released from an aboveground storage tank at Landtree’s business office. MassDEP was informed of the spill by an anonymous caller on November 1 when Landtree and the Babins failed to notify MassDEP within two hours as required for oil spills greater than 10 gallons.
An inspection on November 6 by MassDEP with the Pepperell Fire Department and Board of Health confirmed that a reportable spill had occurred, and contaminated soil had been excavated and stored improperly at the property without MassDEP knowledge or approval. Following the inspection, additional oil-contaminated soil was excavated and testing of soil and groundwater was conducted. A final cleanup report was received by MassDEP in December 2017, verifying that cleanup standards had been met.
“Businesses operating within the Commonwealth of Massachusetts, as well as property owners must provide prompt notification to MassDEP and seek approval to conduct cleanup actions in the event of an oil release to the environment,” said Mary Jude Pigsley, director of MassDEP’s Central Regional Office in Worcester. “This is necessary to ensure whatever cleanup actions they take are, in fact, done properly in the interest of public health, safety, welfare and the environment.”
In addition to the administrative penalty, the company and property owners have agreed to provide training in proper oil spill notification and response and provide certification of the training to MassDEP.
Clear Estate 15 LLC Fined for Water Quality Violations
The Oregon Department of Environmental Quality (DEQ) has fined Clear Estate 15 LLC $15,401 for water quality violations at its property at 501 Pinecrest Drive, in Grants Pass.
According to the DEQ, the company failed to stabilize bare areas to prevent erosion, and sediment from reaching waters of the state. DEQ issued a warning letter with opportunity to correct to the company in December 2017. In March 2018, a DEQ inspector observed the same conditions at the site.
Sediment can degrade water quality harming fish and other aquatic life and threatening beneficial uses of waterways.
Of the civil penalty, $8,201 represents the economic benefit the company gained by failing to control erosion and sediment at the site.
Environmental Penalties in Washington State
The Washington Department of Ecology (Ecology) issued $151,025 in penalties of $1,000 or more April through June 2018. A detailed list of the violations and resulting penalties is listed below.
Ecology works with thousands of businesses and individuals to help them comply with state laws. Penalties are issued in cases where non-compliance continues after Ecology has provided technical assistance or warnings, or for particularly serious violations.
The money owed from penalties may be reduced from the issued amount due to settlement or court rulings. Funds collected go to the state’s general fund or to dedicated pollution prevention accounts
Penalties for April-June 2018
Date Issued
Christopher E. and Janett Olson
Conducted substantial unpermitted shoreline development and creation of land within the shoreline of the Wenatchee River.
Nippon Dynawave Packaging Co.
The company released air emissions above the specified limits of their permit for methanol for 26 days, beginning on Nov. 9, 2017, violating air quality requirements.
Rock Island
Dave Bremmer, Bremmer Construction
Caused or allowed an outdoor fire containing prohibited materials to burn, including railroad ties, during an air quality burn ban.
Grays Harbor
Cosmo Specialty Fibers Inc.
Exceeded opacity and particulate matter limits for air quality permit requirements because scrubber on hog fuel boiler was not maintained.
Port Townsend
Port Townsend Paper Corp.
Released carbon monoxide above the amount allowed by their air quality permit in November 2017. The limit is based on a 30-day rolling average and the limit was violated on three days during that month. Penalty has been paid.
Kenmore Air Harbor
Failed to cover and label hazardous waste and oil containers, among other violations of dangerous waste regulations. Under a December 2017 settlement of an earlier hazardous waste penalty, $5,000 is due if further violations occur within two years. Penalty paid.
Sky Gas
Failed to report overfilling a 45 gallon underground storage tank on April 9, 2018, and to comply with multiple leak prevention and detection requirements for underground storage tanks. Penalty paid.
King County Wastewater Treatment Division
A contractor for a sewer main upgrade project released bentonite clay drilling slurry to the ground on  three days beginning on March 14, 2018. The third release flowed outside the work zone, and some of the slurry entered Lake Sammamish. Penalty paid.
Wilbur Harth Jr.
Burned prohibited materials including tires in an outdoor fire. Did not attend fire or have a burn permit and caused emissions detrimental to people’s health.
Repeatedly discharged polluted wastewater from its medical waste processing plant in Morton. The wastewater disrupted the city’s treatment plant and threatened aquatic life in the Tilton River.
Loon Lake
David Christie
Illegally burned a large slash pile on his property in Deer Lake that caused smoke affecting nearby residents. Stevens County Sheriff’s Office responded.
Blaine Shell
Failed to have a properly working overfill prevention alarm on four underground storage tanks. Also, two underground gas tanks did not meet monthly release detection requirements when they were discovered to have failed leak tests for many months.
Parkway Shell, LLC
Failed to pay annual tank fees and comply with tank and piping leak detection and tank corrosion protection requirements.
Phillips 66 Ferndale Refinery
Released phenolic compounds above the limits in the water quality permit on Jan. 27, 2018. Due to toxicity, the facility is required to treat wastewater to a certain level before discharging.
PeaceHealth St. Joseph’s Medical Center
Improperly managed dangerous waste. Settled violations for improper disposal, lack of staff training, and failing to conduct regular inspections.
Cadman, Inc.
Violated the terms of a waste discharge permit at the Ferndale Ready Mix concrete batch facility. Discharged sediment in excess of permit limits. Discharged stormwater without a permit authorization.
California Supreme Court Denies Hearing for Monsanto Challenge to Prop 65
The California Supreme Court refused to hear a challenge to a key provision of the state’s landmark chemical consumer-disclosure law, Proposition 65, brought by Monsanto. The chemical maker was seeking to force California to remove glyphosate, found in the company’s Roundup products, from the Proposition 65 list of carcinogens. This decision leaves in place lower court decisions upholding a provision of the voter-approved initiative that allows outside expert scientific findings to be considered when adding chemicals to the public list of carcinogens.
“Monsanto doesn’t have the right to decide which scientific experts are permitted to inform the public about cancer-causing chemicals. By refusing to consider this case, the Supreme Court has allowed Proposition 65 to keep working the way voters intended when the initiative was passed in 1986,” said Avinash Kar, senior attorney with the Natural Resources Defense Council (NRDC).
Monsanto challenged the California Office of Environmental Health Hazard Assessment’s proposal to add glyphosate to the Proposition 65 list, following a 2015 finding by the World Health Organization’s International Agency for Research on Cancer (IARC) that glyphosate is a probable human carcinogen. Monsanto attacked California voters’ choice to make IARC findings an independent ground for adding carcinogens to the Proposition 65 list and argued that choice was unconstitutional. The trial court rejected Monsanto’s arguments and dismissed the case in 2017; the California Court of Appeal affirmed that judgment in April 2018.
“California will continue to use the best science available to make sure people in the state understand the dangers of the chemicals they use, whether the chemical companies like it or not,” said Kathryn Phillips, Director of Sierra Club California.
NRDC, Sierra Club, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, and the Environmental Law Foundation intervened in Monsanto’s lawsuit and filed a successful motion to dismiss.
New Illinois Law to Protect East Central Illinois Water Source from Natural Gas Leaks
Illinois Gov. Rauner signed legislation that requires gas storage field owners to notify local communities if natural gas leaks threaten to expose residents and businesses to contaminated water. The new law also mandates annual storage field inspections by the Illinois Department of Natural Resources (DNR).
“Notifying local residents and business owners will help ensure gas companies follow best practices and protect Illinois families from exposure to contaminated water that could pose serious public health concerns,” Rauner said. “I have great respect for Sen. Rose and all of his efforts on behalf of his community. Without him we would not be here signing this today.”
Aimed at protecting the Mahomet Aquifer, East Central Illinois’ primary water source, House Bill 4746 responds to a gas leak in Champaign County in 2016. Local officials and area residents were not informed about the leak that contaminated private wells and was so severe that residents reported being able to light their water on fire.
“The importance of this law can’t be overstated for the people of Central Illinois. As if the Peoples Gas leak wasn’t bad enough, their response to it—or really lack of a response to it—simply added insult to injury,” said Sen. Chapin Rose, R-Mahomet.
“These new notice requirements were developed in consultation and cooperation with the Illinois Environmental Council (IEC), and this legislation was pushed with their full support to require immediate local notification in the event of an incident.
“No one wants to see this happen again. Period. Therefore, and more importantly, this legislation also now requires that DNR annually inspect and oversee Peoples Gas’ operation of the storage field that sits on the aquifer,” Rose said.
“The Mahomet Aquifer is a precious water source to many Illinoisans,” said IEC Executive Director Jen Walling. “The natural gas leak in 2016 threatened that source and changed the quality of life of many residents. We are grateful to Gov. Rauner for signing this legislation, which will add new protections and notification if there is a natural gas leak into the aquifer. Thank you to the bipartisan group of legislators, especially Sens. Rose and Bennett and Rep. Ammons for protecting our water.” 
The annual DNR inspections will look for infrastructure deficiencies or failures that could affect public health. The costs of the annual inspections will be paid by the owners of the gas storage fields. The DNR will establish criteria for what constitutes an incident.
“The Mahomet Aquifer is the state’s only sole source aquifer and serves as the primary source of drinking water for more than 500,000 Central Illinois residents,” said state DNR Director Wayne Rosenthal. “This new law creates a commonsense approach to ensure that the citizens relying on the aquifer receive quick notification of any unintentional natural gas releases which may affect it. The department appreciates the effort that went into the passage of this legislation and is prepared to implement it as quickly as possible.”
“I want to thank my fellow Sen. Scott Bennett, who was my chief co-sponsor in the Senate,” Sen. Rose continued. “In the House, Rep. Carol Ammons stepped forward to help revive the legislation after an earlier version was held hostage by a Chicago-area democrat who doesn’t live anywhere near our aquifer. With their help and the critical support of our other Champaign County legislators, Reps. Brad Halbrook, Bill Mitchell and Chad Hayes, and with thanks to Gov. Rauner for signing the legislation, we are adding great protections to our most important resource: the Mahomet Aquifer.
“Finally, I want to thank the hard work of our local delegation on the Mahomet Aquifer Task Force who are tirelessly fighting to keep our water supply safe. I am looking forward to our task force bringing forward more recommendations for public policy changes as it completes its work later this year to ensure that this invaluable resource remains just that for future generations,” Rose concluded.
“I appreciate all the bipartisan support from both Democrats and Republicans,” said Rep. Sue Scherer, D-Decatur, who sponsored the legislation in the House. “This bill is of great importance to many people who have fallen on hard times.”
The new requirements exceed federal standards.
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