No More EPA Surprise Inspections

July 29, 2019
EPA has unveiled a “no surprises” policy that constrains its future inspections and enforcement actions. The move contributes to the recent rapid retreat in EPA direct actions against polluters, according to Public Employees for Environmental Responsibility (PEER).
In a July 11, 2019 memo, EPA Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine outlined a “no surprises” principle that will serve as the “foundation” of the agency’s civil enforcement approach, including:
  • Providing states “with advance notice of inspections” and taking steps for deciding “when facilities are to be provided notice of inspections”;
  • Notifying the state in advance before taking any enforcement action; and
  • Working with states to “reduce unnecessary burdens on the regulatory community.”
“Taking the element of surprise away from inspections decreases their effectiveness, for obvious reasons,” stated PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney. “I fear that EPA’s ‘no surprises’ posture masks a ‘see no evil’ approach to corporate polluters.”
The Bodine memo declares that “EPA will generally defer to a state as the primary implementer of inspections and enforcement.” It also deemphasizes EPA oversight of federally funded state efforts, declaring that EPA will only “conduct a limited number of inspections to verify the efficacy of authorized [state] enforcement programs.”
PEER points to EPA recently declining to address pollution problems with state mining permits in Minnesota and continuing problems in Flint, Michigan, as examples of harmful EPA deferral.
“Basing enforcement on interagency consensus places politics above pollution control,” added Whitehouse, noting the policy’s disturbing absence of any mention of pollution reduction as a goal. “Nobody opposes cooperation or supports duplication, but this policy risks environmental protection by giving the upper hand to corporate polluters and states that don’t want to enforce environmental laws.”
Ironically, Bodine’s memo posits continued EPA primacy over criminal enforcement efforts. Yet, figures compiled by PEER show that EPA’s criminal enforcement efforts are shriveling.
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States Fight to Keep Groundwater Protections
Maryland Attorney General Brian E. Frosh is leading a coalition of 14 attorneys general in filing an amicus brief in County of Maui v. Hawaii Wildlife Fund, in which the Supreme Court will decide whether the federal Clean Water Act regulates discharges of pollutants that travel through groundwater before reaching navigable waters. In the brief, the attorneys general argue that the Clean Water Act contains no exception for such discharges. Instead, the attorneys general argue, the Act regulates these discharges as long as they are fairly traceable from a polluting “point source” to navigable waters.
“Creating an exception for pollution that travels through groundwater before reaching navigable waters would give polluters a road map to get around the Clean Water Act,” said Attorney General Frosh. “Such an exception would jeopardize the health of rivers, streams, and lakes in Maryland and around the country.”
The Clean Water Act bars “any addition of any pollutant to navigable waters from any point source” unless authorized by a permit and in compliance with the Act’s requirements. As the attorneys general argue in the brief, the Act contains no exception for discharges of pollutants that pass-through groundwater before they reach navigable waters. Indeed, until recently, EPA itself rejected the existence of such an exception.
The brief argues that other federal and state laws would not adequately fill the gap resulting from an exception for discharges via a groundwater conduit. It also refutes arguments that Clean Water Act coverage of such discharges is unduly burdensome for permitting agencies and regulated parties.
The case is scheduled for oral argument in November 2019, and a decision is expected by the end of June 2020. Joining Maryland in the brief were the attorneys general of California, Connecticut, the District of Columbia, Illinois, Maine, Massachusetts, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
NIST Presents First Real-World Test of New Smokestack Emissions Sensor Designs
In collaboration with industry, researchers at the National Institute of Standards and Technology (NIST) have completed the first real-world test of a potentially improved way to measure smokestack emissions in coal-fired power plants. The researchers are presenting their work this week at the 2019 International Flow Measurement Conference (FLOMEKO) in Lisbon, Portugal.
Each year, to meet requirements set by the EPA, coal-fired power plants must have their smokestack emissions audited, or checked by an independent third party. NIST researchers wanted to make this test quicker to save the plants money during their audits, while also improving accuracy of the sensors. So, a NIST team has designed new probes for sensing emission flow rates and a new measurement method that could potentially speed up on-site audits by a factor of 10, researchers say. 
The fieldwork results were “promising,” said NIST engineer Aaron Johnson, and were in reasonable agreement with the laboratory findings. “We were surprised; it did quite well compared to what the EPA has on its books as its ‘best practices’ method.” 
To monitor emissions from coal-fired power plants, technicians need to measure the rate at which flue gas is emitted from the smokestack. The flow inside the smokestack contains eddies and swirls but generally travels upwards. In the NIST tests, four probes -- called pitot tubes -- are inserted horizontally into the smokestack. The four probes each take a flow measurement at four different spots, for a total of 16 measurements. With this information, NIST scientists could test the precision and accuracy of a new pitot tube design and measurement method.
NIST conducted this work as part of a cooperative research and development agreement (CRADA) with the Electric Power Research Institute (EPRI), an independent nonprofit organization whose members include electric utility companies, businesses and government agencies.
“Coal-fired electric generating units may benefit from the current NIST work by having improved standards and techniques to measure mass emissions more accurately, with increased confidence that all entities are reporting on a uniform basis,” said EPRI program manager Tom Martz. He added that the potential time savings “is not something we can accurately quantify at this time, but this will be a key objective of future work.”
The ultimate goal is to provide research that the EPA might someday develop into a new standard for smokestack emissions calibration. “The advantages for industry are that it will reduce test time and cost and has the potential to be more accurate” than current industry-standard probes, Johnson said.
Even if the EPA does not create a new standard, however, the work could have benefits for industry by providing power plant companies with more choices for managing their emissions tests. “Our goal is to get it written as an EPA standard,” Johnson said. “But it’s still up to industry members to decide whether they would want to use it.”
Smokestacks at coal-fired power plants are equipped with monitors that continuously measure the concentration of flue gas emissions, which include carbon dioxide, mercury, sulfur dioxide and nitrogen oxides, as well as the flow rate of the flue gas. By federal law, the built-in flow-rate sensors need to be calibrated — that is, checked for accuracy — during the annual audit.
To conduct the yearly calibration, auditors use small portable devices called pitot tubes. The audit technicians climb the stack – usually several dozen meters (hundreds of feet) tall – and insert their pitot probes horizontally into the gases churning their way up the smokestack. They take several readings of the flow at various points within a cross section of the stack, which is typically 7 or 8 meters (25 feet) in diameter.
NIST designed two new pitot probes (left and center), one whose sensing surface is cone-shaped and the other whose surface is hemispherical. The probes have five holes, or ports. Comparing pressure readings obtained in each of the five ports allows technicians to calculate the flow rate. An older type of pitot tube, called an S-probe (right), has two ports that face in opposite directions.
By far the most common kind of sensor used for this work is an “S-probe.” It has two holes, or ports. One port faces directly into the flow of gas and detects the pressure that builds up in the tube. The other port faces the opposite direction. The faster the flow, the higher the pressure difference between the two ports; measuring this difference in pressure allows auditors to calculate the flow’s speed.
S-probes don’t require calibration, but each measurement can take several minutes, since the technician has to manually rotate the sensor until one side is facing directly into the flow. This is complicated because the flow is not necessarily traveling directly upward at the point being tested. At the base of the stack, flue gas usually travels around a sharp bend, which creates complicated eddies and swirls that don’t go away even in tall smokestacks.
Using S-probes is so labor-intensive that an on-site annual calibration can take a day or more to complete. “And the power plant is losing money all the time the auditors are there, so they want the technicians in and out as fast as possible,” Johnson said.
To speed up this process, the NIST scientists have made three innovations. First, they have created two new models of pitot tubes, with five holes instead of two, which perform better than S-probes and may offer advantages over other five-hole models of pitot tubes currently in use. The probes, designed by NIST physicist Iosif Shinder, come in two shapes: hemispherical and conical.
Second, the scientists have developed a calibration scheme for their new sensors that does not require a technician to rotate the probe inside a smokestack to find the true direction of the flow for each measurement. So, although the sensors would have to be calibrated before use, they would take much less time to use during an actual audit. 
Third, NIST’s Jim Filla developed software that is compatible with a commercially available automated system to measure flow in real time. 
Until now, the new probes’ performance had been measured only at NIST’s test facility, which includes a scale-model smokestack simulator and a wind tunnel. But NIST’s laboratories cannot replicate all aspects of a real power plant, such as the presence of soot in the smokestack’s flow. “It’s one thing to test it in our wind tunnel,” Johnson said. “It’s another to prepare to test it in a stack that’s 120 degrees F.”
The first field run, in July 2018, took place at a natural gas plant, where flow is relatively straightforward to measure. The second, in September 2018, was conducted at a coal-fired power plant with a particularly complicated flow.
The coal-fired plant had an enclosed platform where the pitot tubes were inserted into the smokestack. But the natural gas plant’s platform was open to the elements. And at roughly 45 meters (145 feet) in the air, “things shake,” said NIST technician Joey Boyd. “While you’re working, the stack is swaying, and the floor beneath you is moving.” 
When NIST researchers analyzed the data, their results were promising, agreeing to within 2% with their laboratory findings.
“The probes performed equally well in the smokestack as they did at NIST’s test facility,” Johnson said. Future field tests will help the researchers solve the biggest problem they had: sensor clogging, in which the pitot tubes’ ports get gummed up with water and particulate matter and have to be flushed before a test can continue. 
Also, the work taught them they needed to write special software signaling to their equipment every time there was a “purge” – a high-pressure blast of air through the pitot probe that could damage a key part of the apparatus if certain valves were not closed in time.
Virginia Beach Pump Company Guilty of Clean Water Act Violations
According to court documents, Forrest Sewer Pump Service, Inc., a family owned and operated business headquartered in Virginia Beach, violated the Clean Water Act (CWA) in 2015 and 2016 by illegally discharging pollutants into unauthorized manholes and pump stations. The court records indicate Forrest Sewer has been a Virginia licensed wastewater hauler and provider of sewer pumping services and grease hauling for more than 20 years. Forrest Sewer maintained an industrial user wastewater discharge permit to discharge into the Hampton Roads Sanitation District (HRSD) sewage treatment system. However, the records indicate that Forrest Sewer discharged at the unauthorized locations to, among other things, avoid paying dumping fees to HRSD.
The knowing introduction of trucked pollutants into undesignated locations is specifically prohibited by the CWA pretreatment prohibitions and the local HRSD Industrial Wastewater Discharge Regulations.  Forrest Sewer was caught on video dumping the pollutants at an undesignated location in the Virginia Beach area.
Forrest Sewer faces a maximum sentence of five years of probation, as well as fine of up to $50,000 per day of violation for the Clean Water Act violations when sentenced on October 24. Actual sentences for federal crimes are typically less than the maximum penalties. A federal district court judge will determine any sentence after taking into account the U.S. Sentencing Guidelines and other statutory factors.
Zachary Terwilliger, U.S. Attorney for the Eastern District of Virginia, and Jennifer Lynn, Special Agent in Charge of the EPA Criminal Investigation Division, Philadelphia Area Office, made the announcement after U.S. Magistrate Judge Lawrence R. Leonard accepted the plea. Assistant U.S. Attorney Joseph L. Kosky is prosecuting the case, with the assistance of EPA attorneys and Special Assistant U.S. Attorneys Jessica Goldstein and David Lastra.
Ohio Business Owner Pleads Guilty to Asbestos-Related Offense
John Riazzi of Dayton, Ohio, pleaded guilty in federal court to a felony charge stemming from the illegal removal of asbestos-containing roofing material from a building located in downtown Dayton (known as the Steam Plant).
According to court documents and statements made in court, in September 2015, Riazzi, the sole owner and operator of St. Peters Partners LLC, purchased the Steam Plant from the City of Dayton for $10. Later, after being told by his contractor that the roof of the Steam Plant contained asbestos and would cost approximately $20,000 to remove, Riazzi hired two men to remove the roofing over a weekend for $5000 – without warning them about the asbestos. Riazzi admitted that he knew, or should have known, that the roof contained asbestos. He also admitted that he did not have the roof inspected for asbestos prior to its removal, as the law required.
“Mr. Riazzi purposefully cut corners and endangered the health of those performing the roof removal. To make matters worse, he then lied to and misled investigators when asked about his wrongdoing” said Assistant Attorney General Jeffrey Bossert Clark for the Justice Department’s Environment and Natural Resources Division. “The Department of Justice is committing to prosecuting all who deliberately harm the environment and risk public health in order to save money.”
“Renovating old buildings is great. Doing so without regard to air safety is not. And knowingly declining to inspect a roof before removing it, after having been warned that the original materials contained asbestos, is a federal crime,” said U.S. Attorney Benjamin Glassman for the Southern District of Ohio. “This case is a good example of federal and state authorities working together to hold accountable someone who jeopardized his workers’ safety, as well as the quality of the air in Dayton, just to save a few bucks in construction costs.”
As part of his plea, Riazzi also acknowledged that he had personally used a leaf blower to blow roofing debris from the outside of the Steam Plant into the median of Third Street and had dumped a load of roofing material in some bushes opposite the Steam Plant. He likewise admitted to making several false statements to the Regional Air Pollution Control Agency (RAPCA), which was investigating the roof removal.
This investigation was conducted by the U.S. Environmental Protection Agency, Criminal Investigation Division, and the Ohio Attorney General’s Bureau of Criminal Investigations, with the assistance of the Ohio Environmental Protection Agency. The case is being prosecuted by Deputy Criminal Chief Laura Clemmens of the U.S. Attorney’s Office for the Southern District of Ohio, and Adam Cullman, Trial Attorney for the Department of Justice, Environmental Crimes Section.
New Mexico Preliminary Injunction Against Air Force to Compel It to Address PFAS Contamination
The New Mexico Environment Department (NMED) and Attorney General Hector Balderas filed a request in federal court for emergency relief from environmental contamination caused by per- and poly-fluoroalkyl substances (PFAS).
“I am extremely frustrated that the Air Force has not been responsive to protecting the health and safety of New Mexican families by addressing years of environmental pollution,” said Attorney General Hector Balderas. “Because of their delay and failure to act, Secretary Kenney and I are asking the Court to ensure timely protection of New Mexico’s people, wildlife, and environment from this ongoing and devastating pollution.”
“We will not allow this contamination to further threaten New Mexican’s health and the environment,” said NMED Secretary James Kenney. “In the absence of responsible and timely action on the part of the Air Force, the state will continue to seek whatever legal avenues available to compel clean up.”
The state is requesting the court order the Air Force to immediately begin delineating the groundwater plumes caused by decades of use of a PFAS-based firefighting foam at Cannon and Holloman Air Force bases by conducting regular groundwater and surface water sampling. The state is also requiring the Air Force provide alternative water sources and water treatment options to New Mexicans affected by the contamination, voluntary blood tests for residents who may have been exposed to PFAS and additional documentation on the extent of contamination around the bases.
NMED and the Attorney General sued the Air Force in April. The preliminary injunction would ensure the health of New Mexicans and the environment are protected as the case proceeds.
The agencies also filed an amended version of the original complaint to reflect violations of the federal Resource Conservation Recovery Act pursuant to authorities granted to the New Mexico by the EPA. These claims are in addition to violations of the State’s Hazardous Waste Act.
PFAS are a large group of toxic, manmade chemicals with numerous adverse health impacts, including increasing the risk of some cancers; affecting the growth, learning and behavior of children; and interfering with the immune system. For more information on PFAS, see
Railroad Companies Assessed $20,000 Penalty for Environmental Violations at Train Facility
The Massachusetts Department of Environmental Protection (MassDEP) has assessed a $20,000 penalty to Pan Am Railways, Inc. and Boston and Maine Corporation for environmental violations at the railroad facility at 150 Millbrook Street, Worcester.
In a consent order finalized with MassDEP, the companies admitted that they failed to limit residential use of the property as required in a previous agreement – known as a Notice of Activity and Use Limitation – that addressed the historic release of oil and hazardous material there. MassDEP inspectors had observed transient residential activity at the site. In addition, the companies failed to correct certain errors in the recorded Notice and other documents that were later filed in the case. The companies have also agreed to conduct any remedial actions, as necessary, to reach a permanent cleanup solution for the site that does not solely rely on the limitation of site activities.
“Owners of property subject to a recorded Notice of Activity and Use Limitation must ensure that restricted site uses or activities do not occur at the site in order to ensure that no significant risk to public health, safety, welfare or the environment occurs at the site,” said Mary Jude Pigsley, director of the MassDEP Central Regional Office in Worcester. “A Notice of Activity and Use Limitation is a tool to demonstrate successful cleanup of a site. MassDEP routinely inspects such locations to determine whether owners are complying with the specified restrictions.”
Researchers Use Recycled Carbon Fiber to Improve Permeable Pavement
A Washington State University research team is solving a high-tech waste problem while addressing the environmental challenge of stormwater run-off.
The researchers have shown they can greatly strengthen permeable pavements by adding waste carbon fiber composite material. Their recycling method, described in the March issue of the Journal of Materials in Civil Engineering, doesn’t require using much energy or chemicals — a critical factor for recycling waste materials.
Unlike the impermeable pavement that is used for most roads and parking lots, pervious concrete allows rainwater to freely drain and seep into the ground underneath. Because of increasing concerns about flooding in urban areas and requirements for controlling stormwater run-off, several cities have tried using the pervious concrete in parking lots and low-traffic streets. But because it is highly porous, it is not as durable as the traditional concrete that is used on major roads.
Carbon fiber composites, meanwhile, have become increasingly popular in numerous industries. Super light and strong, the material is used in everything from airplane wings to wind turbines and cars. While the market is growing about 10 percent per year, however, industries have not figured out a way to easily recycle their waste, which is as much as 30% of the material used in production.
Led by Karl Englund, associate research professor, and Somayeh Nassiri, assistant professor in the Department of Civil and Environmental Engineering, the researchers added carbon fiber composite scrap that they received from Boeing manufacturing facilities to their pervious concrete mix. They used mechanical milling to refine the composite pieces to the ideal sizes and shapes. The added material greatly increased both the durability and strength of pervious concrete. “In terms of bending strength, we got really good results — as high as traditional concrete, and it still drains really quickly,” said Nassiri.
The researchers used inexpensive milling techniques instead of heat or chemicals to create a reinforcing element from the waste carbon fiber composites. They maintained and made use of the original strength of the composites by keeping them in their cured composite form. Their mix also required using a lot of the composite material, which would be ideal for waste producers.
“You’re already taking waste — you can’t add a bunch of money to garbage and get a product,” said Englund. “The key is to minimize the energy and to keep costs down.”
The composite materials were dispersed throughout the pavement mix to provide uniform strength.
While they have shown the material works at the laboratory scale, the researchers are beginning to conduct real-world tests on pavement applications. They are also working with industry to begin developing a supply chain.
“In the lab this works to increase permeable pavement’s durability and strength,” said Nassiri. “The next step is to find out how to make it mainstream and widespread. The research for this project was made possible through a partnership with the Boeing Company.
Stepan Company Fined $600,000 for Selling Misbranded Pesticide
EPA announced an agreement with the Stepan Co. of Northfield, Illinois, resolving allegations that the company – through a distribution agreement with the Spartan Chemical Co. – violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on 89 occasions by selling or distributing a misbranded pesticide. Stepan agreed to pay a $612,718 administrative penalty and to coordinate with Spartan to correct the labeling and formulation violations.
“The sale and use of misbranded pesticides pose serious threats to the public health,” said EPA Region 5 Administrator Cathy Stepp. “This settlement underscores that companies must ensure that pesticides are registered with the EPA and display approved label instructions so that they can be used safely and effectively.”
Stepan manufactures chemicals that are used as active ingredients in a variety of pesticides and has a history of noncompliance with FIFRA requirements. The Ohio Department of Agriculture referred Stepan’s alleged violations to EPA, which enforces FIFRA’s registration and labeling requirements.
EPA alleged Stepan through its agent, Spartan Chemical, distributed TB-Cide Quat, an over-formulated and misbranded disinfectant, 87 times. The label for TB-Cide Quat did not include required storage and disposal language. Secondly, Stepan Co. distributed two disinfectants, hdqC2 and HDQL10, twice. The labels for hdqC2 and HDQL10 did not include the required storage and disposal language.
FIFRA helps safeguard the public by ensuring antimicrobial pesticides are determined to be effective and are used, stored and disposed of safely, consistent with approved label directions. Pesticide registration and labeling requirements protect public health and the environment by minimizing risks associated with the production, handling and application of pesticides.
Money Available in Pennsylvania for Pollution Prevention
The Pennsylvania Department of Environmental Protection (DEP) announced the availability of $1 million in grant funding to Pennsylvania small businesses and farmers for energy efficiency, pollution prevention, and natural resource protection projects through the Small Business Advantage grant program. New to the program this year is the opportunity for small business owners to install solar hot water systems for their business operations. 
“Pennsylvania is committed to assisting those small business owners who want to become energy efficient, increase their profitability, and help the environment,” said DEP Secretary Patrick McDonnell. “This funding will support projects designed to reduce operating costs and boost competitiveness, while simultaneously protecting the environment.”
Eligible projects include adopting or acquiring equipment or processes that reduce energy use or pollution. Examples of eligible projects are HVAC and boiler upgrades, high-efficiency LED lighting, solvent recovery and waste recycling systems, and auxiliary power units deployed as anti-idling technology for trucks. 
Last year, around 200 small businesses were awarded more than $947,000 in grants for their projects. Natural resource protection projects may include planting riparian buffers, installation of streambank fencing to keep livestock out of streams, and investing in agricultural stormwater management projects, with the goal of reducing sediment and nutrient loads in our waterways.
“We are excited to expand the program to help lower energy bills through the use of solar energy,” McDonnell said. “Encouraging businesses to embrace alternative energy projects helps clean our air, reduce greenhouse gases, and give small business owners a sense of satisfaction on making smart choices.”
Pennsylvania-based small business owners with 100 or fewer full-time equivalent employees are eligible. Projects must save the business a minimum of $500 and 25 percent annually in energy consumption, or pollution-related expenses.
Businesses can apply for 50% matching funds of up to $7,000 to adopt or acquire energy-efficient or pollution prevention equipment or processes. Only costs incurred between July 1, 2019, and June 30, 2020, are eligible. 
Applications will be considered on a first come, first served basis, and will be accepted until fiscal year 2019-20 funds are exhausted or April 12, 2020, whichever occurs first. All applications must be submitted through the commonwealth’s Single Application for Assistance website. Printed, faxed, and mailed applications are not accepted.
The complete grant application package, which includes step-by-step instructions and instructional videos for completing the online application, is available by visiting the DEP Small Business Ombudsman’s Office website.
The Small Business Ombudsman’s Office will conduct an instructional webinar on Tuesday, July 30, at 11:00 AM. The webinar will review the guidelines for the 2019-20 grant year. Applicants and contractors are encouraged to participate. To join the webinar, click here.  If you have Skype, click on “Join with Skype for Business (desktop)”.  If you do not have Skype, click on “Install and join with Skype Meetings App (web)” to run a temporary web application. 
To participate via audio only, call 267-332-8737, and use conference ID number 4410 1371#.
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