Environmental regulatory activity from Washington D.C. has been anything but “business as usual” under the Trump administration. And, as we predicted a year and a half ago, environmental groups are energized and piling up the lawsuits. How do these developments affect your environmental compliance efforts?
Proposal to Rescind Risk Management Plan
Continuing down the path of regulatory reductions, the Environmental Protection Agency (EPA) is seeking to rescind most of the amendments to the Risk Management Plan: RMP – Section 112 (r) of the Clean Air Act.
According to BLR, Environmental Compliance Advisor, “The proposed Reconsideration Rule would rescind general and specific requirements under the Amendments Rule, including third-party compliance audits; safer technology and alternatives analysis (STAA); root-cause analysis for incident investigations; investigating any incident resulting in catastrophic releases that also results in the affected process being decommissioned or destroyed; certain employee training requirements; and a minimum frequency requirement for field exercises.”
Recall that much of the impetus for these amendments came from an explosion at the West Texas Fertilizer Plant in 2013. However, it was later determined that the explosion was the result of criminal activity unrelated to the RMP.
NOTE: This proposal does not remove the obligation to prepare and implement an RMP. This proposal only addresses the January 13, 2017, RMP Amendments that were published in the Federal Register.
SPCC and Hazardous Substances
In early 2016, we reported about a lawsuit by activists that resulted in a new regulation with respect to Spill Prevention Control and Countermeasure (SPCC) Plans for hazardous materials. This is the type of “sue-and-settle” approach that has been questioned by the Trump Administration.
The lawsuit to force the SPCC application for hazardous materials dates back to the original language in the Clean Water Act (CWA) in 1972 when congress was directed to develop SPCC regulations for hazardous materials.
The January 2014 spill of hazardous materials from Freedom Industries in West Virginia was one of the catalysts for the litigation.
In the June 25, 2018, notice in the Federal Register, the EPA states, “Based on an analysis of the frequency and impacts of reported CWA HS discharges and the existing framework of EPA regulatory requirements, the Agency is not proposing additional regulatory requirements at this time.”
Also see “EPA Proposes Tanking New ‘SPCC’ for Hazardous Substances Regulation.”
Note that this does not negate the current SPCC rules for oils. This only applies to spill prevention planning for hazardous materials.
Methylene Chloride Ban
Not all new or proposed environmental regulations are being overturned. Surprising some, the Obama-era proposal to ban methylene chloride in all consumer products and most commercial paint will likely remain. This action was taken under the Lautenberg Chemical Safety for the 21st Century Act (amendment to the Toxic Substance Control Act).
Some pundits thought that perhaps with the current administration’s focus on regulatory reduction, this ban might be revisited and overturned.
The Environmental Protection Agency has accepted the 2017 findings and will move forward with prohibitions.
While used in commercial laboratories for years (typically under fume hoods), consumer use (or improper use) of methylene chloride has been blamed for several deaths.
As reported by the American Council on Science and Health, “Given the assessments done, this is an instance where EPA concern is warranted.”
Environmental Groups Suing
According to their website, “Earthjustice lawsuits are leading to a wave of court victories, holding the line against the Trump administration’s attempts to ignore environmental laws and deny protections to the American public.”
In total, the website lists 104 lawsuits in what they refer to as a “dark hour.”
Among their causes or targets are Concentrated Animal Feeding Operations (CAFO), the Methane Rule, the Waters of the United States (WOTUS) rule, the Particulate Matter 2.5 Rule, and more.
Earthjustice isn’t the only one with funding and an inclination to get in on the legal action. Natural Resource Defense Counsel’s Aaron Colanelo said, “All told, we’ve engaged in a new legal action or new lawsuit against the Trump administration about every eight days since the inauguration. It started right away. It started on midnight, or shortly before midnight, on the night of the inauguration.”
Assuming their donors continue to contribute, expect more legal action against the Trump Administration in the coming months.
What Does This Mean?
As our late founder, Dr. James Dragun, would invariable ask me after I shared some news with him, “So, what does this mean, and what should I do?”
Some potential “to dos” are below, but all this activity is a reminder that regulations change based on the current political climate and leadership. Keeping up with the changes is always a challenge. Proposed regulations are just that, proposed, and they should be monitored. Also, keep in mind that states with delegated authority can always require more than the EPA.
Potential Compliance To Dos
As for what should I do…An environmental compliance assessment (ECA) can provide a comprehensive check on your facility’s compliance status. Here are some questions to consider with respect to an ECA:
- Have there been state or federal regulatory changes with respect to permits that do or may apply to your facility?
- Have your processes changed (chemical use or increases in production) such that it may change your permit or reporting requirements?
- Are your contingency plans (SPCC, SWPPP, RCRA) up to date?
- Are storage practices (indoor and outdoor) still the same?
- Are you taking advantage of some of the changes to RCRA?
There are, no doubt, many more considerations. And if you are like a lot of our clients, production concerns can interfere with assessing compliance-related issues.
Environmental Compliance Assistance
If you would like to schedule a compliance assessment or have a specific compliance question, feel free to contact Matthew Schroeder, P.E., or Jeffrey Bolin, CHMM, you can reach them both at 248-932-0228. Both Matt and Jeff have more than 25 years of experience and can offer practical advice.
Finally, while environmental groups have focused their efforts on the EPA, the regulated community has to remain vigilant for unwelcomed future litigation activity. For information about Dragun’s expert environmental services, including CVs, see our listing on Experts.com.
If you have questions in general about Dragun Corporation, you are welcome to contact me.