EPA Proposes to Add Environmental Justice, Climate Change, and PFAS to National Enforcement and Compliance Initiatives for FY 2024-2027

January 23, 2023
The EPA recently announced it is seeking public comment on its proposal to address environmental justice, climate change, and PFAS contamination in its National Enforcement and Compliance Initiatives (NECIs).  Every four years, EPA selects national initiatives to focus resources on serious and widespread environmental problems where federal enforcement can make a difference. The primary objective of these initiatives is to protect human health and the environment by holding polluters accountable through enforcement and assisting regulated entities to return to compliance. 
EPA proposes to continue four of the six current national initiatives during the FY 2024-2027 cycle and return two of the current national initiatives to the core enforcement and compliance program. In addition, EPA proposes to address environmental justice concerns in all NECIs, and to add two new NECIs on mitigating climate change and addressing PFAS pollution, for the FY 2024-2027 cycle. 
“The National Enforcement and Compliance Initiatives identify serious environmental challenges where EPA can make a difference through a coordinated national approach,” said Larry Starfield, Acting Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance. “We look forward to receiving public comment on our proposals for FY 2024-2027, which include both familiar and emerging issues.  Of particularly importance, we have built environmental justice considerations firmly into every initiative in order to protect vulnerable and overburdened communities.”
In selecting initiatives for the FY 2024-2027 cycle, EPA will consider the following three criteria to evaluate the existing and proposed new initiatives: 1) the need to address serious and widespread environmental issues and significant violations impacting human health and the environment, particularly in overburdened and vulnerable communities; 2) areas where federal enforcement can help ensure national consistency, promote a level playing field, and achieve compliance; and 3) alignment with the Agency’s Strategic Plan.
Proposed Initiatives
EPA is proposing to continue the following four current NECIs in the FY 2024-2027 cycle:
  1. Creating Cleaner Air for Communities by Reducing Excess Emissions of Harmful Pollutants
  2. Reducing Risks of Accidental Releases at Industrial and Chemical Facilities
  3. Reducing Significant Non-Compliance in the National Pollutant Discharge Elimination System (NPDES) Program
  4. Reducing Non-Compliance with Drinking Water Standards at Community Water Systems
EPA is proposing to return these two current NECIs to the core enforcement and compliance programs:
  1. Reducing Toxic Air Emissions from Hazardous Waste Facilities
  2. Stopping Aftermarket Defeat Devices for Vehicles and Engines 
EPA is proposing to add these two new NECIs in the FY 2024-2027 cycle:
  1. Mitigating Climate Change
  2. Addressing PFAS Contamination
EPA is also taking comment on whether to add an NECI to address Coal Combustion Residuals (CCR) pollution and/or lead contamination. The Agency is also accepting additional suggestions from the public. 
EPA is soliciting comments on the proposed changes during a 60 public comment period. Read EPA’s Federal Register Notice and learn how to submit comments.
EPA Finalizes Revised Risk Determination for the Solvent TCE
The solvent trichloroethylene (TCE) “presents an unreasonable risk of injury to human health,” according to a revised risk determination finalized last week by EPA. The agency describes TCE as a volatile organic compound used mainly in industrial and commercial processes. One major use of TCE is as a solvent to remove grease from metal parts and another is in the making of other chemicals such as HFC-134a, a refrigerant. TCE is also found in some consumer products used for cleaning and furniture care, arts and crafts, and spray coatings.
Adverse health effects associated with exposure to TCE include developmental toxicity, reproductive toxicity, liver toxicity, kidney toxicity, immunotoxicity, neurotoxicity, and cancer, EPA says. The severity and potential irreversibility of the health effects associated with TCE exposures prompted EPA to use its “whole chemical risk determination approach” for the chemical rather than making separate risk determinations for individual conditions of use. The agency determined that only two of the 54 conditions of use it evaluated—distribution in commerce and consumer use of TCE in pepper spray—did not drive its determination regarding unreasonable risk.
The revised risk determination for TCE does not assume that all workers exposed to the chemical always or properly wear personal protective equipment. This “reflects EPA’s recognition that certain subpopulations of workers exist that may be highly exposed” for a number of potential reasons, the agency explains in a press release. For example, some workers could have increased exposure if they are not covered by OSHA standards or if the OSHA permissible exposure limit alone may be inadequate for ensuring that workers’ health is protected, which EPA states “is the case for TCE.”
OSHA’s PEL for TCE is 100 ppm as an 8-hour time-weighted average, its acceptable ceiling concentration is 200 ppm, and its acceptable maximum peak above the acceptable ceiling concentration for an eight-hour shift is 300 ppm for a maximum duration of five minutes in any two hours.
EPA intends to begin a risk management rulemaking for TCE.
“EPA has received public comments from industry respondents about occupational safety practices currently in use at their facilities and will consider these comments, as well as other information on use of PPE, engineering controls and other ways industry protects its workers as potential ways to address unreasonable risk during the risk management process,” the agency says.
Changes to EPA's Safer Chemical Ingredients List Include Removal of One PFAS
EPA has added nine chemicals to its list of safer chemical ingredients and removed one that is classified as a per- and polyfluoroalkyl substance (PFAS), the agency announced via email from its Office of Chemical Safety and Pollution Prevention. The PFAS designated for removal is 1-Octanesulfonic acid, 3,3,4,4,5,5,6,6,7,7,8,8,8-tridecafluoro-, commonly known as halogenated aliphatic acid. The email does not identify the nine substances that were added but notes the changes bring the number of chemicals on the list to 1,064.
The Safer Chemical Ingredients List identifies substances that the agency has determined to be safer than traditional chemical ingredients. The list is an element of EPA’s Safer Choice initiative. Products that meet Safer Choice criteria qualify to carry a special label that identifies them as Safer Choice-certified.
The EPA website explains that the criteria for inclusion on the Safer Chemical Ingredients List are intended to protect against a range of toxicological effects from ingredients including carcinogens, mutagens, reproductive or developmental toxicants; persistent, bioaccumulative, and toxic chemicals; systemic or internal organ toxicants; asthmagens; sensitizers; and chemicals on authoritative lists of chemicals of concern.
The process for adding substances to the list includes a review of hazard information gathered by a third party such as the National Science Foundation or ToxServices. Removal of a substance is not immediate, and first involves the addition of a special notation signifying that the chemical may not be allowed in products that are under consideration for the Safer Choice label.
According to the PubChem database, halogenated aliphatic acid is used as a fire extinguishing agent. It was originally added to the Safer Chemical Ingredients List in 2012. Its updated entry indicates that it is not used in Safer Choice-certified products and will no longer be listed starting in January 2024. The email from EPA’s Office of Chemical Safety and Pollution Prevention explains that the designation for the substance was changed based on “a growing understanding of the toxicological profiles for certain PFAS and incomplete information on the potential health and environmental effects of these substances.”
For more information about PFAS, visit the EPA website.
Dyno Nobel, Inc. Resolves Chemical Emergency Release Notification Violations
The EPA recently announced an Emergency Planning and Community Right-to-Know Act (EPCRA) settlement with Dyno Nobel, Inc., resolving alleged violations at the company’s ammonium nitrate production facility in Cheyenne, Wyo. Under the terms of a Consent Agreement and Final Order filed in November, the company has paid a $20,352 penalty to address EPA’s allegations that it failed to comply with requirements to notify the local emergency planning committee about past hazardous chemical releases at their facility at 8305 Otto Road.
“Facilities that store hazardous materials like anhydrous ammonia have an obligation to follow regulations designed to protect our communities and environment from potentially catastrophic consequences of accidents,” said Suzanne Bohan, director of EPA Region 8’s Enforcement and Compliance Assurance Division. “Failure to comply with the law puts first responders and members of the surrounding community in harm’s way.” 
EPA conducted an inspection at the facility and found the company failed to submit required written notifications of anhydrous ammonia releases to the Laramie County Emergency Management Agency on two separate occasions, in violation of EPCRA requirements. Although Dyno Nobel, Inc. did provide immediate notification to the local agency about the occurrence of each of these events, as required by EPCRA, the company failed to provide the required written follow up notifications to specify any actions taken to address and contain a release and specifically identify any known or anticipated health risks associated with the release.
Dyno Nobel, Inc.’s Cheyenne facility is subject to EPCRA chemical emergency release notification regulations because it produces and stores anhydrous ammonia, which qualifies as an “extremely hazardous substance” under EPCRA. Facilities subject to EPCRA are required to report the details of releases to the environment that exceed specified reporting quantities to state and local emergency response agencies. For ammonia, the reportable quantity is 100 pounds.
The Emergency Planning and Community Right-to-Know Act establishes requirements for federal, state and local governments, Indian tribes, and industry regarding emergency planning and “Community Right-to-Know” reporting on hazardous and toxic chemicals. Failure to comply with these requirements prevents emergency responders from preparing for, and safely responding to, emergencies at facilities where chemical hazards may exist. These and additional Community Right-to-Know provisions help increase public’s knowledge and access to information on chemicals at individual facilities, their uses, and releases into the environment.
This case is part of EPA’s National Compliance Initiative to reduce risks from chemical accidents, and it addresses compliance within an industrial sector—chemical manufacturing — that can pose serious risks from such accidents.
Ohio Contractor Regularly Endangers Workers
An Ohio excavation contractor, cited six times since 2017 for ignoring federal trench-safety rules, allowed employees to work with damaged safety equipment on July 26, 2022, the day a 33-year-old worker in Columbus suffered fatal injuries, a federal workplace safety investigation has found.
The worker was pinned between the “spreader” bars of a trench box and the wall of a 7-foot-deep excavation. OSHA investigators found a sling hook came loose while the box was suspended in the trench.
Before the tragedy, OSHA observed Underground Utilities, Inc. of Monroeville exposing crews to trenching hazards that same day at a Sandusky worksite and at another in Avon Lake five days earlier, on July 21, 2022. The crews were replacing municipal sewer and water lines at the time.
“A worker’s life was cut short because this employer used faulty equipment,” said OSHA Area Director Larry Johnson in Columbus, Ohio. “These three investigations at different sites in the same week show Underground Utilities’ lack of concern for employee well-being by failing to follow federal safety regulations and industry-recognized best practices.” 
At all three work sites, OSHA found the company failed to ensure required cave-in protection was in place and properly used. Inspectors also discovered the employer neglected to keep a spoils pile away from the edge of the trench, used unsafe rigging to hoist trench boxes and damaged cave-in protection.
OSHA’s investigations in Columbus, Sandusky and Avon Lake prompted the agency to issue citations to Underground Utilities for one willful violation, two repeat and five serious violations of federal trenching and excavation standards. The agency also cited the company for failing to report the fatality within eight hours, as the law requires. The company faces proposed penalties of $251,517.
Trench collapses are among the construction industry’s most lethal hazards. The death in Columbus was one of 39 reported to the OSHA in 2022.
“Contractors who continually ignore safety requirements are gambling with their workers’ lives as the odds are tragedy will eventually strike,” said OSHA Area Director Todd Jensen in Toledo. “Workers must be told before entering a trench that it must have adequate cave-in protection, a safe way to get in and out and no potential hazards that can collapse on them.”
OSHA has a national emphasis program on trenching and excavations. Trenching standards require protective systems on trenches deeper than 5 feet, and soil and other materials kept at least 2 feet from the edge of a trench. Additionally, trenches must be inspected by a knowledgeable person, be free of standing water and atmospheric hazards and have a safe means of entering and exiting prior to allowing a worker to enter.
OSHA’s trenching and excavation webpage provides additional information on trenching hazards and solutions, including a safety video. 
Fire Causes Hazardous Materials to Spill into Waterway
A 2021 fire onboard a commercial seafood processor led to a hydraulic oil spill in Tacoma’s Commencement Bay, and has now netted Trident Seafoods Corporation, the vessel’s owner, a $25,000 fine from the Washington Department of Ecology.
In February 2021, the fish processor Aleutian Falcon caught fire while docked for maintenance. Repair work ignited a wooden bulkhead and other materials. As the fire spread, a crane’s hydraulic hoses were damaged, causing an estimated 20-30 gallons of hydraulic oil, mixed with firefighting water, to spill to the Hylebos Waterway.
The spill was contained by a boom surrounding the vessel. Other hazardous material and potential pollutants on the vessel were either consumed in the blaze, or successfully removed. No one was on board the Aleutian Falcon at the time of the fire, and there were no reported injuries.
Investigators found the scope of the repair work was not adequately communicated between workers, supervisors, and officials ahead of time. While working, crews did not take proper precautions or follow national standards that would have prevented the fire. Also, Trident did not report the vessel emergency within an hour of the onset of the fire, as required under law and the company’s spill contingency plan.
The company is being penalized for spilling oil to water, negligence, and not properly reporting a vessel emergency.
While there were no reported impacts to wildlife, oil and refined oil products are acutely toxic. Even small amounts of oil can severely injure or impair mammals, fish, birds, and other animals. Oil can also adversely affect the habitats that wildlife depends on for survival.
The penalty may be appealed to the Washington Pollution Control Hearings Board within 30 days. Spill penalty proceeds support grants issued by Ecology to public agencies and non-profit organizations for environmental restoration projects.
EPA Fines Newton, Kansas, Landowner for Illegal Dumping in Streams
Newton, Kansas, landowner Stan Jost will pay a $50,000 civil penalty to resolve alleged violations of the federal Clean Water Act.
According to the EPA, Jost placed felled trees and other debris in approximately 4,155 feet of Mud Creek and approximately 1,800 feet of Sand Creek in 2021 without obtaining a Clean Water Act permit.
“The unauthorized placement of fill material into streams and other water bodies degrades watershed health, increases downstream erosion, and creates loss of wildlife habitat,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “These acts also deprive downstream landowners and the public from the use and enjoyment of public waters.”
In response to EPA’s findings, Jost removed the materials from the stream.
Under the Clean Water Act, parties are prohibited from discharging fill material into federally protected streams and other water bodies unless they first obtain a permit from the U.S. Army Corps of Engineers (USACE). If parties place fill material into water bodies without a permit, the USACE may elect to refer an enforcement case to EPA. The USACE’s Kansas City District referred this case to EPA in January 2022.
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