Effective Date for “Waters of the United States” Rule Extended
The EPA and the Army have finalized a rule adding an applicability date to the 2015 Clean Water Rule (the 2015 Rule). According to EPA, the rule provides clarity and certainty about which definition of “Waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion. The new applicability date will be two years after the action is published in the Federal Register, during which time both agencies will continue the process of reconsidering the 2015 Rule.
The 2015 Rule, which redefined the scope of where the Clean Water Act applies, had an effective date of August 28, 2015. The U.S. Court of Appeals for the Sixth Circuit’s nationwide stay halted implementation of the 2015 Rule. But last week the Supreme Court determined that the U.S. Courts of Appeals do not have original jurisdiction to review these challenges and, therefore, the Sixth Circuit lacked authority to issue a stay. Given uncertainty about litigation in multiple district courts over the 2015 Rule, this provides additional the regulated community during the ongoing regulatory process.
The final rule is separate from the two-step process the agencies are currently taking to reconsider the 2015 Rule. The public comment period for the Step 1 rule proposing to rescind the 2015 Rule closed in September 2017, and those comments are currently under review by the agencies. EPA and the Army are also in the process of reviewing input from state, local, and tribal governments and other stakeholders as they work to develop a proposed Step 2 rule that would revise the definition of “waters of the United States.”
On February 28, 2017, President Trump issued Executive Order (EO) 13778, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." As EO 13778 stated, it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while simultaneously promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of both Congress and States under the Constitution.
EPA Agrees to Establish Interagency Group to Improve Pesticide Registration and Review
EPA Administrator Scott Pruitt spoke at the National Association of State Departments of Agriculture Winter Policy Conference and signed a Memorandum of Agreement (MOA) establishing an interagency Working Group to evaluate and improve the Endangered Species Act consultation process for pesticide registration.
“The current Endangered Species Act pesticide consultation process is broken,” said EPA Administrator Scott Pruitt. “Today, the Trump Administration is taking action to improve and accelerate this process, harmonize interagency efforts, and create regulatory certainty for America's farmers and ranchers.”
The interagency Working Group includes the Department of the Interior and Department of Commerce and comes at a critical time as EPA has 700 pesticide registrations to complete by 2022.
DuPont Experimental Inc. Fined $53,600 for Hazardous Waste Violations
Delaware Department of Natural Resources and Environmental Control Secretary Shawn M. Garvin has issued a Notice of Administrative Penalty and Secretary’s Order to the DuPont Experimental Station for violations of state laws and regulations governing hazardous waste, with DuPont ordered to pay a penalty of $53,600 along with $3,350 in cost recovery for the Department’s investigation.
DuPont operates the Experimental Station, a research and development facility, at 200 Powder Mill Road in Wilmington. Components of the facility include a hazardous waste incinerator and hazardous waste storage pads. As a result of its operations, the DuPont Experimental Station is classified as a large-quantity generator of hazardous waste and a permitted storage facility.
On May 16, 2017, representatives from DNREC’s Division of Waste & Hazardous Substances conducted a compliance assessment at the DuPont Experimental Station. The assessment identified two violations of Delaware’s Regulations Governing Hazardous Waste, including storing waste over the one-year storage limit and failing to properly identify hazardous waste. The waste identified during the May assessment was generated by Chemours, but was received by DuPont and stored on DuPont’s permitted storage pads. As such, the waste was in DuPont’s possession and compliance responsibilities remain with DuPont.
On July 11, 2017, DNREC representatives conducted a second compliance assessment at the facility. This assessment identified a third violation of storing hazardous waste in excess of the one-year storage limit. The waste identified in the July assessment was generated by DuPont and was stored on DuPont’s permitted storage pads.
Oil Shipping Terminal Rejected by Washington Governor
Washington Governor Jay Inslee has rejected the largest oil shipping terminal proposed in North America as not in the best interests of the state and its people. The Tesoro Savage project (also known as Vancouver Energy) sought to ship over 131 million barrels of oil per year down the Columbia River. Governor Inslee cited the comprehensive review and recommendation of the Energy Facility Site Evaluation Council (EFSEC), which found unavoidable catastrophic risks from earthquakes, oil spills in the Columbia River and the Pacific Ocean, and the threat of fire or explosion at the facility. The project would also cause up to five, mile-and-a-half long oil trains to pass through Spokane, the Columbia River Gorge, and the City of Vancouver every day with additional harms to public health and safety and increased climate changing pollution.
In his denial letter, Governor Inslee found that: “When weighing all of the factors considered against the need for and potential benefits of the facility at this location, I believe the record reflects substantial evidence that the project does not meet the broad public interest standard necessary for the Council to recommend site certification.”
According to Dr. Bruce Amundson, President of Washington Physicians for Social Responsibility, “Stopping the development of this massive crude oil terminal is one of the most important victories in the history of our state for protecting human health and the quality of the Columbia River watershed while also aiding the struggle against climate change.”
Tesoro Savage has 30 days to appeal the Governor’s decision to Thurston County Superior Court.
Revisions to Arkansas Regional Haze Plan Approved
EPA Administrator Scott Pruitt approved revisions to the Arkansas Regional Haze State Implementation Plan (SIP) for nitrogen oxide at electric-generating units within the state. This action is the first step to replacing the embattled and one-size-fits-all Federal Implementation Plan (FIP) dating back to 2012.
Under Section 169A of the Clean Air Act , states are required to develop SIPs that ensure reasonable progress toward the national goal of addressing visibility impairment in designated “class I areas” like national parks and wilderness areas. FIPs have been imposed when EPA disapproves or only partially approves a SIP or when states could not or do not submit SIPs.
In January 2018, the EPA announced its decision to revisit aspects of the 2017 Regional Haze Rule revisions and plans to provide additional guidance for regional haze State Implementation Plan revisions due in 2021.
Nature-based Strategies to Combat Ocean Acidification
After months of research and deliberation, a working group convened by the California Ocean Protection Council and California Ocean Science Trust recently released a report analyzing seagrass and kelp as an ocean acidification management tool in California. The report, which synthesizes data and results from ongoing research and monitoring, provides guidance on next steps for the state as it considers future nature-based actions to reduce the negative impacts of ocean acidification in California and beyond.
Ocean acidification, the decrease in pH that results as more carbon dioxide is absorbed into seawater, has serious implications for shell-building organisms (like oysters) and fish behavior, and has the potential to substantially alter marine food webs and fisheries along the U.S. West Coast. As part of ongoing efforts the state of California is pursuing to reduce the negative impacts of ocean acidification, a working group of the California Ocean Protection Council Science Advisory Team studied the role seagrass and kelp can serve in helping California adapt to climate change.
“The goal is to gain a better understanding of how and if these underwater plants might protect coastal species that are vulnerable to ocean acidification,” said Dr. Karina Nielsen, Co-Chair of the working group and director of the Estuary and Ocean Science Center at San Francisco State University. “The habitats that seagrass and kelp create can increase seawater pH, and may provide relief for some species. We are continuing to learn more about when and where we are likely to see the largest benefits.”
The new science report was prompted by recent legislation in California, Senate Bill 1363 (Monning, 2016), that calls for scientific and evidence-based approaches to protect and restore seagrass and kelp as a critical strategy in enhancing the state’s ability to withstand ocean acidification. This effort and other recent investments by the Ocean Protection Council, in partnership with Ocean Science Trust, take strides toward establishing California's Ocean Acidification and Hypoxia Reduction Program.
“California is taking the lead in supporting innovative research and monitoring to ensure we are making decisions about these important coastal resources informed by the best available science,” said Executive Director of the Ocean Protection Council Deborah Halberstadt. “This report helps provide a scientific foundation that investing in the protection and restoration of these habitats is a win-win strategy for the health of our coast and ocean. Improved management of aquatic vegetation may also be a key natural solution in our larger climate
change adaptation and mitigation strategy.”
A key finding scientists highlighted is that protecting and restoring seagrass meadows and kelp forests is a “no regrets” coastal management strategy, meaning that aside from potential carbon benefits, they provide a range of valuable ecosystem functions including protection of coastal zones from sea level rise and erosion. Robust and healthy habitats like these support functional, resilient ecosystems, and provide important refuges in the face of ocean acidification and other stressors. These habitats provide many benefits to a variety of marine life including shellforming species known to be sensitive to ocean acidification, such as oysters, mussels and urchins, or that are commercially valuable, such as crabs, herring, rockfishes, and abalone.
Other findings of the report include:
- Ocean acidification amelioration by seagrass and kelp is likely to be more prominent during spring to summer months when these habitats are more productive and day length is longer
- Even small pH amelioration by seagrass and kelp could result in relatively significant effects for a variety of species, especially their vulnerable early life stages
- California should continue to identify and control existing threats that contribute to habitat loss, as well as continue small-scale restoration efforts across the state
The science report will be presented on February 6 in Sacramento at a hearing of the Assembly Select Committee on Coastal Protection and Access to Natural Resources. In addition to the report’s findings, the hearing will include presentations from researchers at The Nature Conservancy, University of California, Davis, and California State University, Northridge highlighting specific actions being taken locally and key next steps for California.
Conservation Group Intends to Challenge Dynergy, Inc. for Leaking Toxic Coal Ash Waste
Conservation group Prairie Rivers Network has filed official notice that it intends to sue the electric generating company Dynegy because coal ash waste stockpiled at the company’s Vermilion Power Plant in Oakwood, Illinois has been leaking pollution into the Middle Fork of the Vermilion River, Illinois’ only National Scenic River and a popular site for kayaking, canoeing and tubing. The chemicals leaking from the coal ash pits have stained the riverbank a shimmery orange, rust, and purple color and turned the river water orange.
“These illegal discharges could not be more obvious,” said Earthjustice attorney Jenny Cassel, who represents Prairie Rivers Network. “Dynegy is not above the law and should not be allowed to get away with dumping toxic heavy metals into one of the most ecologically vibrant rivers in our state.”
The plant operated from the mid-1950s and was closed in 2011. For decades, the plant’s operators placed the waste left over from burning coal into unlined pits where the ash can seep into water and soil and blow into the air. The pits contain millions of tons of ash and loom over a half-mile stretch of the Middle Fork’s banks. The company’s own testing and reports show that coal ash waste is leaking into groundwater and into the river.
Testing by Dynegy and by the Prairie Rivers Network show the leaking contaminants include toxic heavy metals such as arsenic, barium, boron, chromium, iron, lead, manganese, molybdenum, nickel, and sulfate. Several of these contaminants were found at concentrations in excess of federal and Illinois standards for protection of human health and the environment. Exposure to these toxics raises the risk for cancer, heart disease, and stroke, and can inflict lasting brain damage on children.
“This toxic waste needs to be cleaned up,” said Andrew Rehn, Water Resources Engineer at Prairie Rivers Network. “We want to make sure that Dynegy can’t just walk away from its responsibility. We all have a right to a clean Vermilion River.”
In 1989, about 17 miles of the Middle Fork were designated as Illinois’ only Scenic River under the federal National Wild and Scenic Rivers Act. The Middle Fork and its surrounding area are home to twenty threatened or endangered species, fifty-seven types of fish, forty-six different mammal species, and two hundred seventy different bird species. The river is home to state-endangered Blue Breast Darter and several species of rare, threatened, and endangered mussels. The American bald eagle, river otter, and wild turkey have all returned to the area, sharing their habitat with mink, turtles, Great Blue Heron and other species.
The coal ash pits at the Vermilion Power Plant are legacy ash pits, excluded from the protections of EPA’s federal coal ash rule because the power plant retired before the rule went into effect in 2015. Environmental groups, including Earthjustice and Prairie Rivers Network, have argued in a lawsuit pending before the federal appeals court in D.C. that EPA should not have left legacy pits out of the rule. Even absent strong federal protections for legacy coal ash sites, however, Dynegy still must comply with environmental laws such as the Clean Water Act, which prohibits discharges of pollutants into rivers such as the Middle Fork without a proper permit or that violate Illinois health and environmental standards.
Prairie Rivers Network is Illinois' advocate for clean water and healthy rivers and is the Illinois affiliate of the National Wildlife Federation. Prairie Rivers Network advocates for cultural values, policies and practices that sustain the ecological health and biological diversity of Illinois’ water resources and aquatic ecosystems. It is a member-supported, nonprofit organization that champions clean, healthy rivers and lakes and safe drinking water to benefit the people and wildlife of Illinois. Prairie Rivers Network explains the threats Dynegy’s coal ash pits pose to the Middle Fork on its website.
The Potential Impact of Hydraulic Fracturing on Streams
Concerns over hydraulic fracturing, an oil and gas extraction method that injects millions of gallons of freshwater and chemicals into shale, have largely focused on potential impacts on water quality. But, as scientists report in ACS’ journal Environmental Science & Technology, fracking operations could have impacts on water quantity because they are withdrawing these large amounts of water from nearby streams, which house aquatic ecosystems and are used by people for drinking and recreation.
On average, more than 5 million gallons of freshwater is used to fracture one gas well in the U.S. That’s more than enough to fill seven Olympic-size swimming pools. Small streams are a major source of water for these operations. Some of these streams also provide drinking water for communities and homes for species with already declining populations. However, little is known about the amount of water that can be sustainably withdrawn from these sources. Sally Entrekin and colleagues wanted to flesh out this picture for the Fayetteville Shale play, an active gas field in Arkansas where more than 5,000 gas wells were drilled using fracking techniques between 2004 and 2014.
The researchers estimated the water stress that hydraulic fracturing might place on streams in the gas field based on water usage and timing for fracturing wells and data on nearby stream flow rates. The streams in the area studied help supply drinking water to thousands of people in the region and are home to 10 aquatic species that are declining at a concerning rate. The team’s calculations revealed that freshwater usage for fracking could potentially affect aquatic organisms in 7 to 51% of the catchments, depending on the month. If 100% of the wastewater were recycled, the potential impact drops, but 3 to 45% of catchments could still be affected. The researchers conclude that improved monitoring and access to water withdrawal and streamflow data are needed to ensure protection of streams as drinking water sources and valuable habitat in the future.
Super Tough Bioplastic Developed
A novel method developed at Oak Ridge National Laboratory creates super tough renewable plastic with improved manufacturability. Working with polylactic acid, a bio-based plastic often used in packaging, textiles, biomedical implants and 3D printing, the research team added tiny amounts of silicon-based materials called silanes to design a new polymer. “Our fast, scalable approach makes a new form of PLA that is 10 times tougher without sacrificing strength or stiffness,” said ORNL’s Soydan Ozcan. “This could broaden applications where polymer toughness is critical.” The research team detailed the underlying chemical reactions in ACS Sustainable Chemistry & Engineering. The team plans to tailor the new polymer for additive manufacturing and packaging.
Environmental Good Samaritan Act Will Protect Oil and Gas Well Plugging Projects with
The Pennsylvania DEP encouraged private-sector partners to become Good Samaritans, by participating in a program that helps cap dangerous abandoned oil and gas wells statewide. The program protects them from liability for their role in helping reduce the health, safety, and environmental hazards of these wells.
“Our 150-year history of oil and gas drilling, much of it before environmental regulations were implemented, has left Pennsylvania with a challenging legacy: plugging thousands of abandoned wells that were left open,” said DEP Secretary Patrick McDonnell. “We encourage private-sector groups or individuals to take advantage of the Environmental Good Samaritan Act to help reduce risk and improve the local environment for many Pennsylvanians.”
The Environmental Good Samaritan Act of 1999 protects groups and individuals who volunteer to implement qualifying environmental remediation projects from civil and environmental liability. The Act doesn’t provide immunity for injury or damage that may result from reckless, unlawful, or grossly negligent acts or omissions.
While the Act historically has been used for mine reclamation, DEP first applied it to two oil and gas well projects in 2017. Cameron Energy plugged a well in Warren County that had been discharging crude oil to the ground and nearby streams, and Chemtrade Logistics plugged a leaking gas well in Elk County. These projects are estimated to have saved DEP $60,000 to $85,000, in addition to administrative cost savings related to contract development and management.
Three more project proposals are currently under review, and DEP welcomes others.
The agency has developed online training to walk volunteers through the process of submitting a project proposal and applying for the liability protection. In addition, the eFACTS environmental database and Oil and Gas Mapping Tool have been updated to provide an inventory of Environmental Good Samaritan project proposals for abandoned wells in Pennsylvania.
Volunteers enjoy reduced liability and can develop the land at or near the well site more quickly than if they had to wait for DEP to plug the well, given limited state funding.
Questions about well plugging through the Environmental Good Samaritan Act can be addressed by contacting the DEP Bureau of Oil and Gas Planning and Program Management or the district office where the project is located.
Advisory Committee Meeting Scheduled to Revise Allowable Mercury Levels in Willamette Basin
The Willamette Basin Mercury Total Maximum Daily Load Advisory Committee will meet in Portland on Feb. 15.
The meeting will be held from 10 a.m. to 3 p.m. at the Columbia River Inter-Tribal Fish Commission, 700 NE Multnomah St. in the Celilo Room on the fifth floor. The meeting is open to the public, but discussion will be limited to committee members. The Oregon DEQ expects to hold a public comment period next year on proposed revisions to the Total Maximum Daily Load.
A Total Maximum Daily Load establishes the maximum amount of a pollutant allowed in a waterbody and serves as the starting point or planning tool for restoring water quality.
DEQ and the EPA are revising the 2006 Willamette Basin Total Maximum Daily Load for mercury – the most recent one completed -- to meet a 2011 standard for methyl mercury and court-ordered deadline of April 2019. The goal of the revised Total Maximum Daily Load is to reduce mercury in the Willamette Basin to levels allowing safe consumption of fish. The 2011 standard is 10 times more stringent than the 2006 standard.
In 2017, a District Court judge supported a claim by Northwest Environmental Advocates challenging EPA's 2011 approval of DEQ's Willamette Mercury Total Maximum Daily Load and set a two-year deadline for EPA and DEQ to revise the plan.
DEQ and EPA formed a team earlier this year to revise the 2006 Total Maximum Daily Load. The team consists of staff and management from DEQ, EPA Watershed Unit staff and regional mercury expert, and contractors.
The advisory committee will meet roughly once a month. DEQ expects to have a draft Total Maximum Daily Load late this year.
Contact: Katherine Benenati, Public Affairs Specialist, Eugene, 541-686-7997, email@example.com
Sewage Incinerator Required to Control Mercury Emissions
Equipment to limit the amount of mercury pollution sent into the atmosphere will be installed at an incinerator owned by Naugatuck, CT., if an agreement between the EPA, the U.S. Department of Justice, the Borough of Naugatuck, and the facility's operator is approved by the US District Court for the District of Connecticut.
The Borough and its contract operator of the incinerator, Naugatuck Environmental Technologies, LLC, a subsidiary of Veolia Northeast, are both responsible under the proposed consent decree for the necessary upgrades at the Naugatuck sewage sludge incinerator.
The Naugatuck sewage sludge incinerator processes sewage waste from the community's wastewater treatment plant as well as from more than 50 other communities. Incineration of sewage sludge results in emissions of various pollutants, including mercury, dioxins and furans, cadmium, lead, and carbon monoxide.
Under federal Clean Air Act rules that became effective in 2016, sewage sludge incinerators must meet stringent emissions standards for 10 pollutants, must test their emissions, and must institute procedures to limit emissions. The Naugatuck facility failed to meet the compliance deadline for mercury emissions and for various other requirements of the rules but contacted EPA to work out the compliance plan and schedule outlined in the proposed consent decree.
The agreement provides a legally-binding schedule for the facility to install and operate mercury controls within 24 months, and promptly meet all other Clean Air Act requirements. The facility will also pay a penalty of $100,000 and take measures to limit the mercury content of sewage sludge received at the incinerator.
Massachusetts School Bus Company Ordered to Reduce Idling
Coppola Bus, Inc., a Haverhill, MA. company has reduced vehicle idling and therefore reduced diesel emissions, and paid an $18,000 penalty as part of a settlement with the EPA for claims of excessive school bus idling.
This settlement means that people in Haverhill will now experience cleaner air and less diesel fumes. Diesel exhaust can cause or aggravate serious health concerns, including for children and people who suffer from asthma or other respiratory ailments.
On two separate occasions, an EPA inspection found over a dozen Coppola buses idling for extended periods of time at the company's Haverhill bus lot. EPA alleged that the excessive idling was in violation of federally-enforceable motor vehicle idling limits contained in the Massachusetts air quality state implementation plan. The applicable regulations establish requirements for all motor vehicles operating in the state, and, with very few exceptions, limit idling to no more than five minutes.
Coppola responded quickly and has already installed automatic shutoff devices on all its buses. The company will also educate its employees and change morning start-up procedures to minimize the idling time of its bus fleet.
Limiting idling is important to public health. Idling diesel engines emit pollutants which can cause or aggravate a variety of health problems including asthma and other respiratory diseases, and the fine particles in diesel exhaust are a likely human carcinogen. Diesel exhaust not only contributes to area-wide air quality problems, but more direct exposure can cause lightheadedness, nausea, sore throat, coughing, and other symptoms. Children, especially those suffering from asthma or other respiratory ailments, are particularly vulnerable to diesel exhaust. Drivers, passengers, facility workers, and bystanders are all vulnerable.
Maryland Joined with Eleven Other States to Stop Off-Shore Drilling
Maryland Attorney General Brian E. Frosh joined a coalition of 12 Attorneys General in requesting U.S. Secretary of the Interior Ryan Zinke terminate the Trump Administration’s plan to allow offshore drilling off the coast of Maryland and multiple Atlantic Coast states.
In a letter to Secretary Zinke, the Attorneys General state the program would, “create multiple problems for nearly everyone who participates in or benefits from our states’ coastal and maritime economies. At a minimum, three million jobs across America depend on the ocean and coastal economy, which generated more than $350 billion in gross domestic prosperity of our states. It also endangers the unique ecologies of our shores and state ocean waters.”
“The risks associated with offshore drilling are unacceptable,” said Attorney General Frosh. “Environmental disasters in the Gulf of Mexico and around the country serve as stark reminders of the permanent damage due to offshore drilling. We will fight every step of the way to protect the natural habitats, the economy and tourism that are directly tied to our shores and the Chesapeake Bay.”
Maryland’s coastal and marine resources are extensive. Maryland is home to a portion of the Assateague Island National Seashore, one of the few remaining undeveloped barrier island environments along the mid-Atlantic coast. Just to the north, tourism supports more than 10,000 jobs in Ocean City and its 10-mile beachfront.
Maryland’s Chesapeake Bay and Eastern Shore also are the foundation for commercial and recreational fishing and seafood industries that support nearly 20,000 jobs. The Bay serves as nursery grounds for hundreds of species that spend part of their lives in the Atlantic, including striped bass, flounder, and crabs. Additionally, Maryland’s coastline provides critical resting and foraging habitat for birds migrating along the Atlantic Flyway.
Not only does this plan put at risk jobs and our environment, it also demonstrates disregard for the voices of the people of Maryland. State and local governments, as well as private citizens in Maryland, have made their opposition to this plan clear via the Department of Interior’s commenting process. Meanwhile, the State of Florida has apparently received a carve-out from this plan, via Twitter.
In addition to Maryland, Attorneys General signing the recent letter include California, Connecticut, Delaware, Maine, New Jersey, New York, North Carolina, Massachusetts, Oregon, Rhode Island, and Virginia.
Environmental News Links
An episodic hazardous waste generator, is a generator of hazardous waste that
a) Normally doesn’t generate hazardous waste, but has a one-time generation event
b) Spills or releases hazardous waste outside the boundaries of the company responsible for the waste
c) Has a one-time event could raise facility’s generator status either from VSQG to SQG, or SQG, to LQG, but they can keep their smaller status if they meet certain conditions
d) Receives a one-time shipment from outside the US