EPA on enforcement of the Clean Water Act

At a recent Congressional hearing, EPA Administrator Lisa Jackson announced that her agency will be stepping up enforcement of the Clean Water Act. It will be placing more focus on concentrated animal feeding operations, sewer overflows, contaminated water that flows from industrial facilities, construction sites, and runoff from urban streets.

This is another step by the current administration to step away from the approach taken by the last one.

Public relations firms for the environment?

I did a webinar on air permitting with BLR (Business and Legal Reports) two days ago. It was very well attended. I talked about the steps one needs to take to obtain a permit. One of the steps may involve public hearings. I spoke about how important it is to have good community relations with one’s neighbors and how the lack of it may hinder the permit applicant during public hearings.

At the Q and A session following my presentation, someone asked if it would be a good idea to hire a public relations firm to let the neighbors know what goes on inside the plant. My answer to the question was an emphatic NO.

It is always better to have someone knowledgeable about your operation to tell your neighbors about what you do. Someone who is actually involved in making your products. That is much better than hiring a spin doctor with a degree in French Literature to explain your manufacturing process to the public. (My apologies to those of you who have degrees in French Literature.)

Slick does not always work.

In fact, sincerity and knowledge trump slick every time.

New directions from the Obama EPA – Part 2

The Obama EPA is getting tough with some state agencies. For example, on September 8, 2009, EPA Region 6 proposed to disapprove key aspects of the Texas clean-air permitting program. It has been reported that EPA is not happy with Texas. National Journal reported that EPA “ordered Texas and West Virginia to get tougher on polluters.”

 On another front, EPA is moving to develop new regulations to control ash ponds owned by coal-fired power plants. The impetus comes from the collapse of TVA’s ash pond retaining wall in December 2008 that sent tons of coal ash into the waterways and people’s homes. EPA issued a statement that said “current regulations, which were issued in 1982, have not kept pace with changes that have occurred in the electric power industry over the past three decades.”

 EPA is also looking into regulating the emission of mercury from the nation’s 500 coal fired power plants. It will take the form of a mercury control plan.

On the water side, EPA has teamed up with the Department of Agriculture and the Department of Interior to clean up the Chesapeake Bay.  This was in response to President Obama’s May 12 , 2009 Executive Order 13508 to protect and restore the Chesapeake Bay and its watershed. A draft report was issued on September 3, 2009 and it addresses some very thorny issues of land runoffs from farms, industrial animal facilities and urban centers.  All of these issues are highly charged politically and EPA is considering new regulations and more enforcement in these areas.

New directions from the Obama EPA

In less than a year into its new administration, the Obama White House and its EPA Administrator Lisa Jackson have already made quite an imprint on the environmental regulatory landscape.

During his first month in office, President Obama directed EPA to review the action taken by the previous administration in prohibiting California from regulating automobile carbon dioxide emissions. This directive followed the Supreme Court’s ruling under Massachusetts v EPA that carbon dioxide is an air pollutant under the Clean Air Act and that EPA must regulate it if it is found to cause harm to public health and welfare.

EPA promptly issued a draft endangerment study on April 14, 2009 proposing that CO2 and other greenhouse gases pose a threat to public health and welfare. On July 1, 2009, EPA reversed the Bush administration’s decision and allowed California to regulate CO2 from tail pipes.

The Obama EPA is tackling the greenhouse gas issues on two fronts. It is working with Congress to develop new cap-and-trade laws to reduce greenhouse gas while developing its own regulations under the Clean Air Act to regulate it.

On September 30, 2009, Lisa Jackson announced that EPA is proposing new regulation under the Clean Air Act to curb greenhouse gas from industries that emit more than 25,000 tons of CO2 per year. This would bring many plants under the new regulation if it becomes final.

The Obama EPA has also dropped a Bush plan to exempt some 3,500 facilities from reporting chemical releases under the Toxic release Inventory. You can expect to see a few more rule reversals in the future.

EPA gets ready to regulate greenhouse gas

On September 30, 2009, EPA announced a proposal that is focused on large facilities emitting over 25,000 tons of greenhouse gases a year. These facilities would be required to obtain permits that would demonstrate they are using the best practices and technologies to minimize GHG emissions.

The rule proposes new thresholds for greenhouse gas emissions (GHG) that define when Clean Air Act (CAA) permits under the New Source Review (NSR) and title V operating permits programs would be required for new or existing industrial facilities.  Click here for a copy of EPA’s fact sheet on this latest regulatory proposal.

The NSR will trigger the need for PSD (Prevention of Significant Deterioration) permits for new source or major modification in attainment areas.

Some observers have noted that this EPA step is a strategic move to motivate industries to lobby the Senate for a Climate Change Bill. Many in industry would prefer to be regulated under a new Climate Change Bill than under the Clean Air Act.

Just exactly what is “used oil”?

Used oil is defined as any petroleum-based or synthetic oil that has been USED. When you use oil, impurities or contaminants such as dirt, metal scrapings, water or other chemicals can get mixed in with the oil. such impurities may make your oil less effective as a lubricant for example.

Some examples of used oil are engine oil, transmission fluid, refrigeration oil, compressor oils, metal working fluids and oils, laminating oils, electrical insulating oil, industrial process oils, etc. Waste oil is not used oil. Oil that has been spilled is not classified as used oil because it has not been used for its original purpose.

You should recycle your used oil by re-conditioning, re-refining or burning it for energy recovery. EPA has specific management standards that you should comply with if you handle used oil in your business. You should label all containers and tanks as “Used Oil”. Keep these containers in good condition. You are not permitted to store used oil in lagoons, pits or surface impoundment.

If your used oil is mixed with hazardous waste, you may have to dispose of the mixture as hazardous waste. So make sure you store your used oil away from other hazardous wastes.

Always check with your state agencies because they may have more stringent used oil regulations.

Exclusion vs exemption

When you come across terms such as “excluded” or “exempt” in federal or state regulations, have you wondered what do they mean exactly?

Something is being excluded from being regulated by a specific law because it is being regulated elsewhere by a different law.  For example, nuclear wastes are excluded from the Resource Conservation and Recovery Act (RCRA) because they are regulated by the Nuclear regulatory Commission. Domestic sewage is excluded from RCRA because it si covered under the Clean Water Act.

Exemption is a bit different. Something is exempt from being regulated or it is being less regulated because it meets certain conditions. For example, used oil is exempt from being regulated FULLY as a hazardous waste if it is being recycled. Universal wastes is another example. they are basically hazardous wastes but they are exempt from the full force of RCRA if they are recycled.

Resist the temptation ……don’t do it!

Has this ever  happened to you?

After you tell your VP of production that he cannot install his new equipment because he has to get a pre-construction permit first, he tells you that it is unacceptable and he threatens to call the state senator or the governor. He wants to “bypass” this lengthy permitting process because customers are clamoring for his products. He has orders to fill. He has to make his numbers. 

Situations like this happen a lot more frequently than you think. The production folks somehow get the idea that the sole purpose of the regulatory agency is to assist them in meeting their production quotas. To the contrary, the agency people are there to implement state and federal laws that say you cannot install any new air emission sources without first getting a pre-construction permit. That’s the law of the land.

If your VP calls up the governor’s office and tries to do an end run on the permitting process, two things will likely happen. First, he will get turned down.  The governor’s office will most likely tell your VP to pay an extra fee to get on the “fast permitting track”. Most agencies have that program. He will still have to wait and get his construction permit.

Second, you will have made an enemy in the permit writer once he  finds out that you try to bypass him. Put yourself in the permit writer’s shoes. How would you feel if some one goes over your head to your boss?

The best way to get a permit in a timely manner is to be upfront with the agency. Provide everything the agency needs to process your permit in a timely manner. Try to do it right the first time. Do not play cat-and-mouse game with the permit writer. Be courteous. Be professional. Remember – the permit is simply doing his job – just like you are. He is not your enemy. But if you treat him like one, he will become one. 

On last point. If you hire a consultant to get a permit for you, make sure that the consultant has a good working relationship with the agency and your consultant gets along with the permit writer. You do NOT want an arrogant  consultant representing you before the agency.

When do you need an air permit?

This is a question asked by many people in industry. In almost every state, you are required to obtain a state operating permit if you have an air emission source unlessthat source is specifically exempt by state regulations. An emission source would be any equipment or facility that is capable of emitting air contaminants to the atmosphere.

Different states have different exemptions. For example, in Illinois you are exempt from getting an air permit if your coating operation uses less than 5000 gallons of coating material including thinners (Illinois Title 35, subtitle B, chapter I, section 201.146(g)). If you have a print shop and you use less than 750 gallons of paint a year, you are exempt as well.

In southern California, the Air Quality Management District (AQMD)’s Rule 219 lists all the emission sources that are exempt from getting an air permit. For example, Rule 219(h) exempts printing operations that emit less than 3 lbs of VOC per day or 66 lbs of VOC per calendar month.

By the way, in every state and under the Clean Air Act, you must obtain a construction permit before you are allowed to install any air emission sources.  Sometime they call it a pre-construction permit. If you have purchased a new piece of equipment that is an emission source, you are not allowed to bolt it to the ground or wire it up. You can unwrap it and have it sit on the shop floor while you are waiting for your construction permit to be approved. Many companies have been fined by EPA for installing equipment without a construction permit. The agency may even order you to uninstall the emission source and pay a fine and apply for a construction permit.

This is often a bone of contention between the environmental staff (you) and production staff (them). The production folks may take 3 years to decide on a new piece of equipment. Once they have purchased it, they want to install it and run it right away. This is where you say to them: “No, you can’t do that. We have to apply for a construction permit first and that may take a month or two.”  If they were smart, they would have told you about the new equipment a month earlier before they take delivery of it so that you could start the permitting process.

That would be the ideal situation.

If you need the construction permit in a big hurry, you can pay the agency a fee to get on the “fast track”.

What is your potential to emit?

The term “Potential to Emit” under the Clean Air Act is defined under 40 CFR 70.2 as “the maximum capacity of a stationary source to emit any air pollutant under its physical and operational design”. You use the PTE to calculate your expected air emission when you are applying for a permit.

For example, if you have a piece of equipment that is designed to operate 24 hours a day and 365 days a year, you will have to calculate your air emission based on these maximum of hours. The agency is going to assume you will be running that equipment 24/7 every day of the week.  Now if the equipment requires an hour of down time for maintenance, you can then use 23 hours per day for your PTE.

If you have a paint booth and you need so many hours per day to switch paints and set it up, you can deduct those hours when calculating your PTE. These are operational designs.

If you voluntarily restrict your operating hours in order to apply for a FESOP (federally enforceable state operating permit), you can use your reduced hours to calculate your PTE. In this case, your voluntary restriction on your operating hours is enforceable by EPA (hence federally enforceable). If you exceed those hours, EPA can take enforcement action against you even though you are operating under a state operating permit. So be very careful when you apply for a FESOP. Make sure you can meet your own operational restrictions.