SPCC Enforcement at a Hotmix Asphalt Operation

Mitchell Williams Selig Gates & Woodyard PLLC

The United States Environmental Protection Agency (“EPA”) and Frank W. Whitcomb Construction Corporation (“Whitcomb”) of Colchester, VT entered into a June 22nd addressing alleged violations of the Clean Water Act Oil Pollution Prevention regulations including:

  • Plan not certified by a professional engineer;
  • No management approval of plan;
  • Plan not maintained on site or not available for review;
  • No evidence of 5 year review of plan by owner/operator;
  • No plan amendments if the facility has had a change in: design, construction, operation, or maintenance which affects the facility’s discharge potential;
  • Plan does not follow sequence of the rule and/or cross reference not provided;
  • Plan has inadequate or no facility diagram;
  • Inadequate or no description of drainage controls;
  • No inspection records available for review;
  • Training records not maintained for 3 years;
  • Dike water is not inspected prior to discharge and/or valves not open and resealed under responsible supervision;
  • Causes of leaks resulting in accumulations of oil in dike areas are not promptly corrected;
  • Vehicle traffic is not warned of aboveground piping or other oil transfer operations.

The Agreement assesses a civil penalty of $3,100.

EPA and USACE Rescinds WOTUS Rule

EPA and USACE Rescinds WOTUS Rule

Foley & Lardner LLP

On Tuesday, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced a proposal to strike the 2015 “Waters of the United States” (WOTUS) regulation, which had expanded the number of U.S. waterways subject to federal review for pollution control purposes.

Before the 2015 WOTUS regulation, the 1972 Clean Water Act applied primarily to “navigable” bodies of water. With the 2015 WOTUS rulemaking, the Obama administration expanded the permitting requirements of the Clean Water Act to ditches, streams, and many additional non-navigable waters, outside the original scope of the Clean Water Act.

A formal notice and comment rulemaking is required for the administration to revise the definition of waters of the United States.

EPA Selects 3 Sites in Spokane for Brownsfields Grants

EPA has selected communities in Alaska, Oregon and Washington for Brownfields environmental site assessment and cleanup grants. The grants, ranging from nearly $200,000 up to $600,000, will be used to conduct brownfield site assessments and cleanups to help redevelop vacant and underutilized properties, transforming them into an asset for both the community and the local economy while protecting public health and the environment. 

City of Spokane was selected for three brownfields cleanup grants totaling $600,000. https://www.epa.gov/newsreleases/municipality-spokane-selected-600000-brownfields-cleanup-grants

 “EPA is committed to working with communities to redevelop Brownfields sites which have plagued their neighborhoods. EPA’s Assessment and Cleanup grants target communities that are economically disadvantaged and include places where environmental cleanup and new jobs are most needed,” said EPA Administrator Scott Pruitt. “These grants leverage considerable infrastructure and other investments, improving local economies and creating an environment where jobs can grow. I am very pleased the President’s budget recognizes the importance of these grants by providing continued funding for this important program.”

Brownfields assessment and cleanup grants target communities with significant distress. These communities are economically disadvantaged — neighborhoods where environmental assessment, cleanup and new jobs are most needed for residents that have historically been left behind. EPA selected 172 communities nationally for new brownfields assessment and cleanup funding in 2017.  Across the country, $56.8 million in funding will be granted. 

For more information about Brownfields Cleanup and Assessment Grants: www.epa.gov/brownfields

To view fact sheets about the 2017 grant recipients: https://www.epa.gov/brownfields/brownfields-list-fy17-grants-selected-funding

Ecology Recruiting for Air Quality Section Manager at the Central Regional Office

Ecology is recruiting for an air quality section manager at the Central Regional Office Union Gap, Washington to replace Sue Billings.   First Sean Hopkins and now Jay Carmony have served as Acting Section Manager.  Jay Carmony will continue to serve in his Acting role until the recruitment process is complete.  The closing date for applications is May 16, 2017.  For more information on the job opportunity, see https://www.governmentjobs.com/careers/washington/jobs/1729903/air-quality-section-manager-wms-band-2?department[0]=Dept.%20of%20Ecology&sort=PositionTitle%7CAscending&pagetype=jobOpportunitiesJobs

CSB Releases Final Report into Nitrous Oxide Explosion

On April 20, 2017, the U.S. Chemical Safety Board (CSB) released its final report into the August 28, 2016, nitrous oxide explosion at the Airgas manufacturing facility in Cantonment, Florida. The blast killed the only Airgas employee working at the facility that day and heavily damaged the plant, halting its manufacturing of nitrous oxide indefinitely.

The CSB investigation found that federal regulations require some chemical facilities that manufacture hazardous substances to have process safety management systems in place to protect their workforce and the public.  The CSB discovered, however, that a majority of these specialized rules are not required for nitrous oxide facilities.

In its final report, the CSB notes that the contributing causes of the explosion all stemmed from the lack of an effective process safety management system. For example:

–       Even though heat from the pump was a known hazard, Airgas did not evaluate safer design options that could have eliminated the need for the pump altogether;

–       The company did not perform a management of change review or hazard analysis before installing the pump to identify and control hazards; and

–       Safeguards installed by the company, including the safety interlock to automatically shut down the pump, and flame arrestors were likely ineffective, and failed to prevent the incident.

OSHA Delays Enforcement of Silica Standard in Construction

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced Monday a delay in enforcement of the crystalline silica standard that applies to the construction industry to conduct additional outreach and provide educational materials and guidance for employers. The Agency has determined that additional guidance is necessary because of the unique nature of the requirements in the construction standard. Originally scheduled to begin June 23, 2017, enforcement will now begin Sept. 23, 2017. – See more at: http://ehsdailyadvisor.blr.com

Ecology adopts new Hazardous Waste Fee Regulatory Language

The Washington State Department of Ecology (Ecology) adopted amendments to Chapter 173-305 Washington Administrative Code (WAC), Hazardous Waste Fee Regulation on April 5, 2017.  To see the rulemaking documents visit Ecology’s website at: http://www.ecy.wa.gov/programs/hwtr/laws_rules/HWFee/1606docs.html.  The rule includes the following changes:

  • Exempts
    • Dangerous waste treated on-site by Generator
    • Non-recurrent (e.g. spill clean-up) dangerous waste
  • Modifies the definition of Price Deflator which affects the maximum total fees collected. The language was updated to clarify how the fee is adjusted annually for inflation; the language is now consistent with actual practice.

The rulemaking is not expected to change fee practices but to codify current practices.  It will not require businesses to change how they report dangerous waste.  The rule is effective May 6, 2017.

Presidential Executive Order on Promoting Energy Independence and Economic Growth

On March 28, 2017 President Trump signed an executive order redirecting the nation’s policy on energy.  The executive order titled Promoting Energy Independence and Economic Growth, includes 8 sections defining the policy; requiring review of all agency actions that potentially burden the safe, efficient development of domestic energy resources; rescinding 4 Presidential actions, 2 Office of the President reports, and one guidance document from The Council on Environmental Quality; requiring review of EPA’s “Clean Power Plan” and related rules and agency actions; requiring review of estimates of the social cost of carbon, nitrous oxide, and methane for regulatory impact analysis; directing the Department of the Interior to withdrawing the Federal Land Coal Leasing Moratorium; and reviewing regulations related to United States oil and gas development.

The new policy is defined as:

(a)  It is in the national interest to promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.  Moreover, the prudent development of these natural resources is essential to ensuring the Nation’s geopolitical security.

(b)  It is further in the national interest to ensure that the Nation’s electricity is affordable, reliable, safe, secure, and clean, and that it can be produced from coal, natural gas, nuclear material, flowing water, and other domestic sources, including renewable sources.

(c)  Accordingly, it is the policy of the United States that executive departments and agencies (agencies) immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.

(d)  It further is the policy of the United States that, to the extent permitted by law, all agencies should take appropriate actions to promote clean air and clean water for the American people, while also respecting the proper roles of the Congress and the States concerning these matters in our constitutional republic.

(e)  It is also the policy of the United States that necessary and appropriate environmental regulations comply with the law, are of greater benefit than cost, when permissible, achieve environmental improvements for the American people, and are developed through transparent processes that employ the best available peer-reviewed science and economics.

EPA issues new regulation for stormwater permitting

US EPA regulations have required that operators of construction activity that involves more than one acre must control stormwater leaving the construction site through use of a Construction General Permit (CGP) and a Stormwater Pollution Prevention Plan (SWPPP).  On January 11, 2017 EPA issued the new 2017 CGP regulation which still require compliance with effluent limits and other historical permit requirements, including the development and maintenance of a SWPPP, but an updated set of requirements for stormwater runoff at construction sites took effect on February 26, 2017.  Additional information is available at https://www.epa.gov/npdes/stormwater-discharges-construction-activities#cgp.

Senate confirms Scott Pruitt as EPA Administrator

On Friday February 17, 2017, the Senate confirmed Scott Pruitt, an American lawyer and Republican politician from the state of Oklahoma , as the 14th Administrator of the Environmental Protection Agency.

In response to the nomination, Pruitt said, “I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses.”

Most Democrats and environmental groups are fiercely opposed to Mr. Pruitt, who has often sued the EPA as Oklahoma’s attorney general to block clean air and water regulations from being enforced. They also have questioned his close ties to the fossil fuel industry, which has donated to Mr. Pruitt’s various political action committees.

Republican leaders have cheered Pruitt as someone who can strike a balance between protecting the environment and ensuring that economic growth isn’t slowed by onerous regulations.

Edward Scott Pruitt was born in Danville, KY in 1968 and grew up in Lexington. He attended Georgetown College (KY) and graduated in 1990 with bachelor’s degrees in political science and communications. Mr. Pruitt then moved to Tulsa where he attended the University of Tulsa (OK) to earn a Juris Doctor in 1993.  Mr. Pruitt entered into private practice in Tulsa where he specialized in constitutional law, contracts, insurance law, labor law, and litigation and appeals.  He entered in politics in 1998, representing Tulsa and Wagoner Counties in the Oklahoma Senate from 1998 until 2006 and serving as Attorney General of Oklahoma from 2010 to date.

– http://www.usatoday.com/story/news/politics/2017/02/17/scott-pruitt-epa-confirmation-vote-senate/98039318/
– http://www.usatoday.com/story/news/politics/elections/2016/2016/12/07/donald-trump-scott-pruitt-environmental-protection-agency/95104512/
– https://en.wikipedia.org/wiki/Scott_Pruitt