EPA to Control Cross-State Air Pollution

August 02, 2021
New York Attorney General Letitia James announced an agreement with the EPA that, if approved by the court, will commit the federal government to addressing pollution that blows into New York and creates unhealthy ground-level ozone (commonly known as smog). Under the agreement, the EPA must take final action on “good neighbor” plans from six states to limit downwind spread of smog-forming emissions. The agreement would resolve a lawsuit that Attorney General James and the coalition brought against the Trump Administration’s EPA in January 2021 over its failure to fulfill its legal responsibility under the Clean Air Act to take action to ensure the control of upwind sources of smog-forming pollution.
“Following years of unregulated air pollution from other states into New York, this agreement promises a breath of fresh air for millions of New Yorkers,” said Attorney General James. “A majority of New Yorkers across the state regularly breathe polluted air — much of it from smog blown in from upwind states. With this agreement, the EPA has committed to finally taking the necessary action to protect our communities and the resources we depend on. My office will continue to fight to reduce pollution, and to support every New Yorker’s right to clean, healthy air.”
On the worst air quality days, nearly 12.5 million New Yorkers — almost two-thirds of the state’s population — breathe air with unhealthy levels of smog. Nine New York counties are currently considered by the EPA to be out of compliance with national health standards for smog pollution. Elevated levels of smog can cause a host of significant health effects, including coughing, throat irritation, lung tissue damage, and the aggravation of existing medical conditions, such as asthma, bronchitis, heart disease, and emphysema. Exposure to smog is also linked to premature mortality. According to the American Lung Association’s 2021 State of the Air report, millions of New Yorkers with lung disease — including 380,000 children and over 1,600,000 adults suffering from asthma — are at special risk to the harmful effects of smog.
The Clean Air Act requires that states submit plans — known as a “State Implementation Plan” or “SIP” — for meeting national health and welfare standards for air pollutants, including ozone smog. These SIPs must fulfill the requirements of the Clean Air Act’s “Good Neighbor Provision,” which prohibits sources within upwind states from emitting air pollutants in amounts that contribute to downwind states not attaining or maintaining compliance with the national ozone standards. The Clean Air Act specifies that the EPA must review each state’s completed SIP within 12 months, and either approve or reject the plan. If the EPA determines that a state’s plan does not meet the law’s requirements and rejects it, the EPA is then required to adopt a plan, known as a “Federal Implementation Plan” or “FIP,” for the state.
Despite the Clean Air Act’s requirements, the Trump Administration’s EPA refused to carry out its mandatory statutory duty to approve or reject SIPs submitted by Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia pursuant to the Good Neighbor Provision. The EPA’s inaction meant that it neither determined the adequacy of the proposed Good Neighbor SIPs nor triggered its obligation to adopt FIPs for the states with deficient plans. As a result of this inaction and because pollution emitted from sources in these states contributed substantially to smog problems in New York and other states, the coalition sued the Trump Administration’s EPA in the U.S. District Court for the Southern District of New York on January 12, 2021 to compel the EPA to approve or reject the upwind states’ SIPs. 
The agreement with the Biden-Harris Administration’s EPA resolves the coalition’s lawsuit and ends the EPA’s illegal delay by establishing deadlines for action. The agreement requires the EPA to approve or reject Good Neighbor SIPs from the upwind states by April 30, 2022. If, however, the EPA proposes by February 28, 2022 to reject one or more SIP and to adopt a corresponding FIP, the EPA will have until December 15, 2022 to finalize the SIP rejections. This creates strong incentives for the EPA to concurrently evaluate SIPs and propose FIPs where necessary, expediting reduction of upwind states’ emissions as required by the Good Neighbor Provision.
Following a notice-and-comment period required by the Clean Air Act, the agreement will be sent to the U.S. District Court for final approval.
Attorney General James thanks the New York state Department of Environmental Conservation for its assistance.
Joining Attorney General James in announcing the agreement are the attorneys general of Connecticut, Delaware, Massachusetts, and New Jersey, as well as the corporation counsel of the City of New York.
New Definition of Waters of the United States Is Imminent
Congress enacted the Clean Water Act in 1972 with the statutory objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” One of the Act’s principal tools in achieving that objective is a prohibition on the discharge of pollutants from a point source to navigable waters unless otherwise authorized under the Act. Navigable waters are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.
On June 9, 2021, EPA and the Department of the Army announced their intent to revise the definition of WOTUS to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. Upon review of the Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.
Recently, EPA and U.S. Department of the Army announced plans for upcoming community engagements to inform their efforts to revise the definition of “waters of the United States” (WOTUS) to better ensure clean and safe water for all. EPA and Army are committed to developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries.
“We are committed to crafting an enduring definition of WOTUS by listening to all sides so that we can build on an inclusive foundation,” said EPA Administrator Michael S. Regan. “Uncertainty over the definition of WOTUS has harmed our waters and the stakeholders and communities that rely on them. I look forward to engaging all parties as we move forward to provide the certainty that’s needed to protect our precious natural water resources.”
“Our nation’s water resources are critical to support all of our communities,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham. “Like the EPA, the Department of the Army recognizes the importance of this effort and we are committed to meaningful engagement with Tribes, states, local governments, and stakeholders to ensure that a revised definition of WOTUS reflects the experiences of, and input received, from all communities.”
The agencies intend to revise the definition of WOTUS following a process that includes two rulemakings. A forthcoming foundational rule would restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. A separate, second rulemaking process would refine this regulatory foundation and establish an updated and durable definition of “waters of the United States.”
A durable definition of WOTUS is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. The announcement marks an important step in the agencies’ efforts to restore protections and write a rule to define WOTUS that is grounded in science and the law, emphasizes effective implementation, and prioritizes collaborative partnerships with states, Tribes, local governments, and stakeholders. To help ensure that EPA and Army hear from diverse perspectives, future engagement activities will be developed in coordination with the U.S. Department of Agriculture.
“It is vital that farmers and rural Americans have a seat at the table and a voice in this process so that the rule responds to concerns and realities on the ground. The engagement in the coming months is important and I encourage all stakeholders to provide their experiences and views in order to help shape future policy,” said U.S. Secretary of Agriculture Tom Vilsack.
EPA and Army have announced a series of engagement opportunities, including an opportunity for stakeholders and the public to provide written recommendations and a series of public meetings in August to hear perspectives on both rules. In addition, the agencies are initiating Federalism and Tribal consultations for the foundational rule. The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both rulemakings.
Additionally, the previous rulemaking efforts have highlighted the regional variability of water resources and the importance of close engagement with stakeholders to understand the specifics of how they experience regulation under varying definitions of waters of the United States. To honor our commitment to listening and learning from diverse perspectives, the agencies plan to convene ten regionally focused and inclusive roundtables during the upcoming fall and winter. These roundtables will allow a full range of stakeholders to engage and discuss their experience with definitions of WOTUS—including what has worked and what has not within their geographic areas. The roundtables will provide opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.
For more information on submitting written recommendations or to register for the public meetings, see www.epa.gov/wotus.
EPA Releases Preliminary Data for 2020 Toxics Release Inventory Reporting, Including First Ever Reporting on PFAS
Because of the Toxics Release Inventory program of the Emergency Planning and Community Right-to-Know Act of 1986, the public has greater awareness of how chemicals are being managed in their communities. TRI data are a valuable dataset used by researchers and decisionmakers across the world. Nearly 21,000 facilities report annually on the quantities of more than 760 chemicals they release into the environment or otherwise manage as waste to the TRI Program. TRI data are reported by facilities in industry sectors such as manufacturing, mining, electric utilities, and commercial hazardous waste management. The Pollution Prevention Act also requires facilities to submit information on pollution prevention and other waste management activities of TRI chemicals.
EPA has published preliminary Toxics Release Inventory (TRI) data about chemical releases, chemical waste management, and pollution prevention activities that took place during 2020 at nearly 21,000 federal and industrial facilities across the country. The preliminary data includes the first-ever reporting on per-and polyfluoroalkyl substances (PFAS) added to the TRI by the 2020 National Defense Authorization Act (NDAA).
“TRI data enhance awareness and help support informed decision-making by companies, government agencies, non-governmental organizations, and the public when it comes to chemical waste management practices at facilities in our communities,” said EPA Office of Chemical Safety and Pollution Prevention Assistant Administrator Michal Freedhoff. “The data collected, particularly on PFAS and ethylene oxide, are critical to inform and guide EPA’s commitment to protect people from the potential health impacts of these chemicals.”
The 2020 preliminary data are for substances included on the TRI list of chemicals. These data were reported by facilities in certain industry sectors, including federal facilities, that manufactured, processed, or otherwise used the TRI-listed chemicals above certain quantities during 2020. The data include quantities of such chemicals that were released into the environment or otherwise managed as waste. The data also include the pollution prevention activities initiated by individual facilities during 2020.
The dataset is raw data and does not contain any summary or trend analysis. While the preliminary data have not yet been through the complete TRI data quality process, the software facilities used to submit these data include many automated quality checks that help prevent facilities from making common mistakes. EPA is now conducting additional quality checks on the preliminary data. The 2020 preliminary data will be updated periodically to reflect revisions to previously submitted data and late submissions of TRI reporting forms.
The public can use the preliminary data to identify facilities that report to TRI (for example, to locate facilities in a given ZIP code) and learn which chemicals that facilities manage and in what quantities.
EPA plans to publish the updated  TRI dataset this fall, which will be used to develop the 2020 TRI National Analysis. EPA expects to publish the 2020 TRI National Analysis in early 2022.
At this time, the data related to the PFAS added by the NDAA and received by the agency include a total of 89 TRI reporting forms for 44 discrete PFAS chemicals filed by 38 individual facilities. The preliminary data indicate facilities managed over 700,000 pounds of production-related waste of PFAS during 2020.
EPA is conducting a review and data checks on the preliminary data. As EPA reviews the data, the agency will examine: the types of facilities that reported and that did not report, the specific PFAS that were reported and not reported, the information reported, by whom, and the communities in which PFAS are being released or otherwise managed as waste. The agency will seek to learn to what extent the current TRI reporting requirements regarding PFAS were followed and are adequate in providing the public with important information on the waste management practices of PFAS.
In analyzing the PFAS reporting, EPA will also include a focused and more rapid effort to provide insights regarding the seemingly limited scope of the reporting, including the types and number of facilities reporting and PFAS reported. Depending upon its findings, EPA will take action as appropriate. This could include compliance assistance, enforcement, or proposing modifications to the TRI reporting requirements for PFAS.
EPA will include a section in the 2020 TRI National Analysis (to be published in early 2022) that will provide more detailed information, including discussion on the quantities of the PFAS that were released to the environment, recycled, burned for energy recovery or treated; source reduction activities implemented on PFAS; the facilities and sectors that disclosed this information; and the communities in which these activities took place.
EPA will continue to add PFAS to the TRI per the requirements of the NDAA. For TRI Reporting Year 2021 (reporting forms due by July 1, 2022), the NDAA automatically added three PFAS to the TRI list because they are now subject to a significant new use rule under the Toxic Substances Control Act. The TRI data collected will help inform the agency’s efforts under Administrator Regan’s EPA Council on PFAS to better understand and ultimately reduce the potential risks caused by these chemicals.
Learn more about your TRI Reporting requirements.
EPA to Strengthen Limits on Coal Wastewater
Steam electric plants use fossil fuels (such as coal, oil, and natural gas) or nuclear reactions to heat water in boilers, which generates steam. The steam is used to drive turbines connected to electric generators. The plants generate wastewater in the form of chemical pollutants and thermal pollution (heated water) from their water treatment, power cycle, ash handling and air pollution control systems, as well as from coal piles, yard and floor drainage, and other miscellaneous wastes.
On September 30, 2015, EPA finalized a rule revising the regulations for the Steam Electric Power Generating category. The rule sets the first federal limits on the levels of toxic metals in wastewater that can be discharged from power plants. On August 31, 2020, the Agency finalized a rule revising the 2015 requirements for two specific waste streams produced by steam electric power plants—flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water. On January 20, 2021, President Biden signed Executive Order 13990, which directed the EPA to review all regulations and policies undertaken by the previous administration and rescind or revise any that do not protect public health and the environment. Accordingly, the EPA conducted a review of the 2020 Steam Electric Reconsideration Rule.
Now, EPA has announced that it is initiating a rulemaking process to strengthen certain wastewater pollution discharge limits for coal power plants that use steam to generate electricity. EPA is committed to ensuring that our nation’s vital water resources are healthy and support safe drinking water, recreation activities, agriculture, industry, and vibrant communities.
EPA undertook a science-based review of the 2020 Steam Electric Reconsideration Rule under Executive Order (E.O.) 13990, finding that there are opportunities to strengthen certain wastewater pollution discharge limits. For example, treatment systems using membranes continue to rapidly advance as an effective option for treating a wide variety of industrial pollution, including from steam electric power plants. EPA expects this technology to continue advancing and the agency will evaluate its availability as part of the new rulemaking.
“EPA is committed to science-based policy decisions to protect our natural resources and public health,” said EPA Administrator Michael S. Regan. “In conducting a review of the 2020 rule as directed by President Biden, EPA determined that moving forward with implementing the existing regulations would ensure that water resources are protected now, while we quickly move to strengthen water quality protections and further reduce power plant pollution that can contain toxic metals such as mercury, arsenic, and selenium.”
While the agency pursues this new rulemaking process to strengthen water pollution requirements for coal power plants, the current regulations will be implemented and enforced. The 2020 rule made modifications to only certain aspects of the 2015 Steam Electric Effluent Limitation Guidelines (ELGs) rule, such that requirements promulgated in 2015 and 2020 are currently in effect. The current requirements provide significant environmental protections relative to a 1982 rule that would otherwise be in effect. The 2015 and 2020 rules are leading to better control of water pollution from power plants while reducing the cost of controls such as biological treatment systems and membrane treatment systems. The agency’s approach will secure progress made by the 2015 and 2020 rules while the Agency undertakes a new rulemaking to consider more stringent requirements.
On July 26, EPA Administrator for Water Radhika Fox signed a Federal Register Notice to announce its intent to initiate this rulemaking process. Because this rulemaking could result in more stringent ELGs that are the subject of petitioners’ claims in litigation pending in the Fourth Circuit Court of Appeals, the Department of Justice—in coordination with EPA—is filing a request to the Court to hold the litigation in abeyance. The agency intends to issue a proposed rule for public comment in the fall of 2022.
Emergency Temporary COVID-19 Standard Adopted in Virginia
On July 15, 2020, the Virginia Safety and Health Codes Board adopted §16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‐19.
In accordance with Va. Code §40.1‐22(6a), the Emergency Temporary Standard (ETS) will take immediate effect upon publication in a newspaper of general circulation, published in the City of Richmond, Virginia.
Training and outreach products are being developed by the VOSH Cooperative Programs Division and are available to the regulated community, employees, and the general public:
  • COVID‐19 Training PowerPoint for Employers and Employees with an included training certification form
  • ETS Training PowerPoint that explains the elements of the standard with an included training certification form (including different versions for different industries)
  • FAQs about the standard
  • Infectious Disease Preparedness and Response Plan Template (including different versions for different industries)
  • Training PowerPoint on how to develop an Infectious Disease Preparedness and Response Plan Template with an included training certification form
  • Flowchart for determining how to classify job tasks by hazards employees are potentially exposed to for “very high”, “high”, “medium”, and “lower” exposure risk levels
Covered employers have been given 60 days from the effective date of the ETS to develop and train employees on their Infectious disease preparedness and response plan required under §16 VAC 25‐220‐70.
Covered employers will be given 30 days to train employees on the standard under §16 VAC 25‐220‐80.
Pennsylvania to Conduct Radiological Testing of Leachate at Landfills
In an effort to further protect Pennsylvania’s waterways and drinking water, the Wolf Administration announced that it will soon require all Pennsylvania landfills – including those that accept unconventional oil and gas waste – to conduct quarterly testing of leachate for radiological contaminants.
Landfills are currently required to test leachate – or liquid generated during waste decomposition – for various contaminants before this liquid is either treated by an on-site leachate treatment facility or sent to wastewater treatment facilities. This additional step of including radium in the list of contaminants to be measured will allow the Department of Environmental Protection (DEP) to evaluate the presence of radium in landfills.
“We take seriously our responsibility and duty as an environmental steward,” said Gov. Tom Wolf. “This additional requirement will improve public confidence that public drinking water and our precious natural resources are being appropriately protected.”
"This level of prevention ensures Pennsylvania residents and visitors are protected from potential health and environmental risks, our top priority," said DEP Secretary Patrick McDonnell.
DEP currently identifies contaminants in leachate through reports sent from landfills on a quarterly basis. DEP has begun the process of updating its reporting document to include radium-226 and radium-228, which will be implemented later this year. All landfills, including those that accept oil and gas wastes, will be required to test for these radiological contaminants.
“Earlier this year, my office urged Governor Wolf to direct DEP to prevent harmful radioactive materials from entering Pennsylvania waterways, and I commend this action,” said Attorney General Josh Shapiro. “Pennsylvanians living next to landfills and in the shadow of fracking wells have a constitutional right to clean air and pure water, and the improved monitoring and promised analysis by DEP is a step in the right direction.”
DEP has conducted several investigations into potential radiological contamination associated with unconventional oil and gas waste, including a large-scale investigatory study of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) in 2016, as well as testing of leachate from the Westmoreland Sanitary Landfill (WSL). In both cases, DEP or DEP-certified laboratories have analyzed leachate collected for radium-226 and radium-228, which are naturally occurring radiological substances found deep underground. Specifically, samples taken of WSL's leachate showed radium levels far below federal action levels.
The study did not identify significant differences in radium levels between landfills that accept oil and gas waste compared to those that do not. Testing results in all cases were lower than effluent limits for radium-226 and radium-228 established by the U.S. Nuclear Regulatory Commission (NRC) for facilities under its jurisdiction.
However, the study also concluded that additional evaluation of the potential for oil and gas-derived waste to radiologically impact landfill leachate was necessary.
Since the study was published, DEP has taken steps to address radiation concerns, including requiring Radiation Protection Action Plans for unconventional oil and gas operations that generate TENORM and updating limitations, as well as applying enhanced tracking efforts for the landfill disposal of TENORM-containing waste. Testing for radium in landfill leachate is another step in DEP’s ongoing efforts to appropriately ensure public confidence and protect public health.
DEP will also implement longer-range steps based on the data reported by landfills, including collecting and analyzing two years of quarterly data so that fluctuations in oil and gas waste disposal volume are adequately captured and take any immediate action that is necessary to protect human health or the environment if it finds that federal action levels are exceeded.
Oil Spill Dispersant Monitoring Required by EPA
EPA has amended the requirements in Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) that govern the use of dispersants, other chemicals and other spill mitigating substances when responding to oil discharges into waters of the United States.
EPA established monitoring requirements for dispersant use in response to major oil discharges and/or certain dispersant use situations in the navigable waters of the United States and adjoining shorelines, the waters of the contiguous zone, and the high seas beyond the contiguous zone in connection with activities under the Outer Continental Shelf Lands Act, activities under the Deepwater Port Act of 1974, or activities that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States, including resources under the Magnuson Fishery Conservation and Management Act of 1976 (navigable waters of the United States and adjoining shorelines). This final rule will become effective on 24 January 2022. For more detailed information on this final rule contact Gregory Wilson at 202-564-7989 (wilson.gregory@epa.gov).
California Wants Input on Proposal to Regulate Tire Chemicals that Can Harm Aquatic Life
The California Department of Toxic Substances Control (DTSC) is taking the next step in its investigation of chemicals in motor vehicle tires that can harm aquatic life by holding a virtual Zoom public workshopto view more webinars and presentations  July 28 and 29.  Media may find the agenda and workshop materials, along with a registration link on the DTSC websiteto view more webinars and presentations.
The goal of the workshop is for industry experts, researchers, advocacy groups, and others to weigh in on DTSC’s proposal to regulate zinc and 6PPD under its Safer Consumer Products program. DTSC is concerned about the impacts on coho salmon and other aquatic life. DTSC also welcomes comments on other chemicals in tires that could be of concern.
The workshop follows an earlier announcement that DTSC granted a petition by the California Stormwater Quality Association (CASQA) to work with tiremakers to reduce the amount of zinc that gets into waterways.
DTSC is considering regulating tires under its innovative Safer Consumer Products  (SCP) program. California would become one of the first states to work with manufacturers to look for alternatives to these chemicals that are safer for the environment while allowing tires to continue to meet safety and performance requirements.
Employee’s Hand Partially Amputated After Company Removes Equipment Guards
On just his third week working for a Trenton manufacturer, a 21-year-old machine operator’s life changed forever. On Feb. 1, 2021, the operator suffered a partial hand amputation because the company allowed protective guards to be removed from a machine that cuts sheet metal for the roofing industry.
An OSHA investigation found that Blac Investments Inc. – operating as Tri County Metals – removed protective guards from the machine because the guards caused imperfections to newly manufactured roofing panels. OSHA cited the company for a willful violation for removing the guards and exposing workers to amputations hazards. The agency proposed $122,879 in penalties.
“Blac Investments’ management made a conscious decision to remove guards on three machines that exposed workers to dangerous metal shears,” said OSHA Area Office Director Michelle Gonzalez in Jacksonville, Florida. “They put profits over their employees’ safety and a young worker is permanently disabled.”
Headquartered in Trenton, Blac Investments Inc. manufactures commercial and residential metal-roofing materials at six other locations in Live Oak, Ocala, Tallahassee, Brooksville, Deland and Jacksonville.
OSHA Wants Input on New Power Presses Standard
OSHA published a Request for Information seeking information and public input as the agency considers updates to its mechanical power presses standard.
OSHA first issued the mechanical power presses standard in 1971, based on the American National Standards Institute industry consensus standard. ANSI has updated the standard several times since.
The agency is requesting information regarding the need to update the mechanical power presses standard, how closely the standard should follow the current ANSI standard, the types of presses that should be covered, the use and certification of equipment, presence-sensing device initiation systems, and requirements for press modifications, training, and injury reporting.
OSHA will use the information received to determine what action, if any, it may take to reduce regulatory burdens while maintaining worker safety.
Comments must be submitted electronically at http://www.regulations.gov, the Federal eRulemaking Portal. Read the Federal Register notice for submission instructions. Submit all comments by Oct. 26, 2021.
Learn more about OSHA’s mechanical power presses standard.
Company Cited by OSHA 6 Times in 3 Years
OSHA has cited a Millersburg, Ohio contractor – with a history of not cooperating with federal safety inspectors – for exposing workers to deadly fall hazards for the sixth time in three years– while fall protection equipment remained unused at a Medina residential work site.
On April 28, 2021, OSHA inspectors observed roofers employed by JMH Roofing LLC working up to 24 feet off the ground. The agency issued two willful, two repeat and two serious violations. OSHA cited the company and owner, Jonas Hershberger, and proposed penalties of $136,453. OSHA requires the use of fall protection at heights greater than 6 feet.
OSHA inspectors also found the five-person crew working without required eye, face or head protection. Inspectors determined JMH Roofing lacked an effective safety and health program and failed to audit work sites for safety hazards and ensure compliance.
“Fall hazards make roofing work among the most dangerous jobs in construction. Yet too often, OSHA inspectors respond to reports of workers without protective gear and find safety equipment on-site but not in use,” explained OSHA Area Director Howard Eberts in Cleveland. “When an employer requires employees to work from heights, they must provide fall protection and appropriate equipment, and train workers to use the equipment safely.”
OSHA cited JMH Roofing LLC for similar hazards in February 2021, June 2020 and May 2018. The agency cited RAM Roofing LLC, also owned by Hershberger, in April and September 2019, which resulted in penalties of $137,441. Hershberger has refused to respond to the citations, provide abatement or pay penalties.
The Bureau of Labor Statistics reports in 2019 that 1,061 construction workers died on the job, 401 of them in falls from elevation. In Fiscal Year 2020, fall protection in construction was the standard most frequently cited by OSHA inspectors.
OSHA’s stop falls website offers safety information and video presentations in English and Spanish to teach workers about hazards and proper safety procedures.
Power Company Cited for RICE NESHAP Violation
EPA recently reached a settlement with Green Mountain Power Corporation, a power company located in Vergennes, Vermont, for alleged violations of the Clean Air Act. Under the settlement, Green Mountain Power agreed to pay a penalty of $28,800 and come into compliance with the Clean Air Act's monitoring and reporting requirements.
EPA alleged that Green Mountain Power operated two diesel generators subject to the National Emission Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines (RICE NESHAP). Combustion engines emit hazardous air pollutants. These generators lacked the proper monitoring equipment and required reports and plans, which serve to show that its generators are in compliance with this rule.
The company has since taken steps to address the violations cited by EPA.
Follow-Up Safety Inspection at Site of 2019 Workplace Fatality Finds Recycler Continued to Put Employees at Risk
OSHA cited a recycling company, where a 44-year-old welder employed by a contractor in the facility suffered fatal injuries in 2019 amid safety violations.
The welder was an employee of National Fabricating Services – operating as Quality Machine and Fabrication Inc. – when the fatality occurred on the TAV Holdings Inc. work site in Greenville, GA. OSHA conducts follow-up inspections when fatalities occur, and in its return visit to the site, investigators found repeat violations.
TAV Holdings failed to ensure workers completed training before operating telescoping forklifts and failed to examine the forklifts before placing them in service. OSHA cited the company for similar violations in 2019 after a forklift struck and caused an unsupported beam to fall and fatally injure the welder.
The agency also cited TAV Holdings with eight serious violations for the following hazards:
  • Allowing workers to operate powered industrial trucks without a seat belt and failing to identify load capacities on forklifts.
  • Dismounting powered industrial trucks with the load elevated.
  • Electrical cords and scrap metal on the shop floor in high-traffic areas.
  • Blocked access to fire extinguishers in the welding area and failure to conduct monthly fire extinguisher inspections.
  • Failing to ensure the use of welding curtains during sheet-metal welding.
  • Electrical boxes not designed and installed for outdoor use.
OSHA proposed $112,212 in penalties for violations found in the follow-up inspection.
“Our most recent inspection found that TAV Holdings again disregarded its legal requirement to provide employees with a safe and healthful workplace,” said OSHA Atlanta-West Area Office Director Jeffery Stawowy in Atlanta. “Safety failures cost a worker his life in 2019. The safety culture of the company has to change, and we will continue to monitor and hold the host company accountable until change occurs.”
Headquartered in Greenville, TAV Holdings Inc. recycles and processes nonferrous metals and develops separation technology for the recycling industry.
Three Companies Cited for Hazardous Waste Violations
EPA has reached settlements with three manufacturing companies that generate hazardous waste to resolve alleged violations of the federal Resource Conservation and Recovery Act (RCRA). According to EPA, the violations created the potential for releases of hazardous wastes, including harmful air emissions, from the companies’ facilities.
“Reducing the potential for toxic air emissions at hazardous waste facilities is a top priority for EPA,” said Diane Huffman, acting director of EPA Region 7’s Enforcement and Compliance Assurance Division. “These facilities are located in communities that may already experience disproportionate environmental harm. Such concerns underscore the importance of ensuring facilities are complying with hazardous waste regulations.”
Fuchs Lubricants Co. of Kansas City, Kansas, which manufactures lubricating oils and greases, paid a civil penalty of $255,344. United Industries Corporation of Vinita Park, Missouri, which manufactures herbicides, plant food, pesticides, cleaners, and pest repellants, agreed to pay a civil penalty of $95,000. DCW Casing LLC of Oelwein, Iowa, a manufacturer of a blood anticoagulant called heparin, paid a civil penalty of $80,562.
EPA inspected United Industries in 2018 and the other facilities in 2020. According to inspection findings, each company qualified as a “large quantity generator” of hazardous waste but they allegedly failed to meet the requirements of a facility producing that much waste, including applicable organic air emission requirements:
  • Fuchs Lubricants failed to: properly label hazardous waste containers; maintain required aisle space; monitor and inspect pumps and valves; minimize hazardous waste air emissions; and identify an emergency coordinator in case of leaks. The facility also stored hazardous waste longer than regulatory requirements allow.
  • United Industries failed to: conduct and document daily hazardous waste tank inspections; properly mark equipment; and equip a hazardous waste tank with a required fixed roof. Further, the EPA inspector found a crack in a secondary hazardous waste containment area.
  • DCW Casing failed to: have a contingency plan for releases of hazardous waste; conduct and document hazardous waste training; and properly mark equipment and keep records.
Because these companies allegedly failed to meet each RCRA hazardous waste requirement for large quantity generators, each was operating as an unpermitted hazardous waste treatment, storage and disposal facility.
In response to the inspection findings, the companies agreed to take the necessary steps to return their facilities to compliance.
Federal law requires facilities that generate hazardous wastes to implement safe generation, handling, transportation, and disposal practices. Improper management of hazardous waste and certain equipment may cause harm to public health and the environment.
EPA identified the goal of reducing air emissions from hazardous waste facilities as one of seven National Compliance Initiatives in 2019.
Aerosols Danville Cited for Hazardous Waste Air Emission Violations
EPA announced a settlement with Aerosols Danville, Inc. (formerly known as KIK Custom Products) to resolve alleged violations of the Resource Conservation and Recovery Act (RCRA) at the company’s facility in Danville, Illinois. The settlement includes a $175,000 civil penalty.
“EPA is committed to protecting communities by enforcing companies’ obligations to properly manage solid and hazardous waste,” said EPA Region 5 Acting Administrator Cheryl Newton. “This settlement with Aerosols Danville reflects EPA’s commitment to protect human health and the environment by ensuring compliance with state and federal environmental laws and advancing environmental justice.”
Aerosols Danville is a beauty products production facility that generates spent ethanol. The company was required to comply with various provisions of RCRA’s hazardous waste air emission regulations. EPA alleged that Aerosols Danville violated RCRA by failing to monitor valves and pumps for leaks, maintain records, tag valves and flanges, inspect roof closures, and obtain a written tank assessment.  RCRA is the nation’s primary law governing the management of solid and hazardous waste, which helps protect human health and the environment.
Under the terms of the consent agreement and final order with EPA, Aerosols Danville will address the alleged RCRA violations at the facility and pay a civil penalty of $175,000 to the federal government. The facility is located in a community with potential environmental justice concerns based on its low-income population and proximity to a Superfund Site. Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
aFe Cited for Selling Vehicle Emission Control Defeat Devices
EPA and the U.S. Department of Justice (DOJ) announced that Advanced Flow Engineering (aFe), an automotive parts manufacturer and distributor based in Corona, Calif., has agreed to stop manufacturing and selling parts for motor vehicles that, when installed, defeat, disable, or override EPA-approved emission controls and harm air quality. The complaint, filed simultaneously with the settlement, alleges that aFe’s manufacture and sale of these parts violate the Clean Air Act. From 2014 to the present, aFe manufactured and/or sold over 63,000 of these parts, widely known as ‘defeat devices.’ The company will also pay a $250,000 penalty, which was based on its financial situation.
“The products that aFe manufactured and sold jeopardized the public health by causing illegal emissions of dangerous pollutants including particulate matter and nitrogen oxides (NOx),” said Acting Assistant Attorney General Jean E. Williams of the Justice Department’s Environment and Natural Resources Division (ENRD). “This case demonstrates that we will undertake necessary enforcement measures to eliminate the manufacture and sale of such devices to ensure that the vehicles on our roads meet required emission standards.”
“Today’s settlement will prevent the future sale of approximately 12,000 illegal product units per year,” said Deborah Jordan, EPA’s Acting Regional Administrator for the Pacific Southwest. “The increased particulate matter and NOx pollution stemming from defeat devices threatens the health of everyone, especially those with pre-existing health conditions, children and older adults. We also know that air pollution can lead to worse outcomes from COVID-19. It is unacceptable that the same communities that are being hit the hardest by the COVID-19 pandemic are often the same communities that bear the disproportionate impact of air pollution.”
Based on prior sales that are now prohibited under the settlement, EPA estimates that this enforcement action will prevent the release of approximately 112 million pounds of NOx and one million pounds of particulate matter from vehicles that would have been installed with aFe’s defeat devices.
Tampering with diesel and gasoline powered vehicles by installing defeat devices can cause large amounts of NOx and particulate matter emissions, both of which contribute to serious public health problems. These include premature death, 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 incidence of lung cancer. Respiratory issues disproportionately affect families, especially children, living in underserved communities overburdened by pollution. Stopping the sale and use of defeat devices will help reduce harmful air pollution that exacerbates the health effects of pollutant exposures.
The enforcement action is part of EPA’s National Compliance Initiative that targets companies that manufacture, sell and install parts that disable vehicle emission controls. To learn more, visit: https://www.epa.gov/enforcement/national-compliance-initiative-stopping-aftermarket-defeat-devices-vehicles-and-engines.
The consent decree for this settlement was lodged in the U.S. District Court for the Central District of California and is subject to a 30-day public comment period and final court approval.
Mattress Retailer Penalized $63,034 for Illegally Pocketing Customer Recycling Fees
Bakersfield, CA retailer Valley Mattress will pay $63,034 in penalties and back payments for collecting customers’ recycling fees, then failing to submit them to California’s mattress recycling program. The retailer also did not provide requested compliance records to state inspectors as required by California’s Used Mattress Recovery and Recycling Act (mattress recycling law).
If Valley Mattress violates California’s mattress recycling law over the settlement term of three years, it will pay an additional $49,098 in penalties.
“California’s mattress recycling law has kept over 7 million mattresses from littering our streets and filling our landfills,” California Department of Resources Recycling and Recovery (CalRecycle) Director Rachel Machi Wagoner said. “Mattresses are highly recyclable and contain materials that can be made into new products, supporting California’s move to a more circular remanufacturing economy with less trash pollution and more green jobs.”
Mattress recycling reduces the costs of illegally dumped mattresses.
California’s mattress recycling law requires the industry to develop and administer a statewide program that collects and recycles used mattresses. The goal of the program is to recycle used mattresses to reduce illegal dumping and landfilling.
In California, the state-certified industry stewardship organization composed of manufacturers, renovators, and retailers is the Mattress Recycling Council (MRC).
In addition to registering with MRC, California mattress retailers are required to:
  • Add a mattress recycling charge to the purchase price of each mattress/futon
  • Clearly display the charge as a separate line item on the invoice/receipt
  • Offer consumers the option of having their used mattress picked up at no additional cost when their new mattress is delivered
  • Provide CalRecycle access to facilities and relevant compliance records
CalRecycle launched an initial enforcement action against Valley Mattress in March of 2018 for not providing compliance records to state inspectors. The retailer did not comply during a subsequent inspection and follow-up enforcement actions, prompting CalRecycle to file an administrative accusation.
As part of a settlement, Valley Mattress will verify its renewed compliance with all mattress recycling law requirements, pay civil penalties to CalRecycle, and pay delinquent consumer recycling fees to MRC.
Free Amazon HD 10 Tablet with RCRA and DOT Training
Annual training is required by 40 CFR 262.17(a)(7).  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 an Amazon Fire HD 10 tablet at no extra charge.
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