June 05, 2023
The U.S. Environmental Protection Agency finalized stronger standards to improve response efforts to oil spills and hazardous substance releases into waters of the United States and adjoining shorelines under the federal government’s National Contingency Plan (NCP). The new standards encourage the development of safer and more effective oil spill mitigating products like chemical and biological agents, provide emergency responders more information to better target the use of these agents, and require more transparency when these products are used.
“When hazardous substance releases or oil spills occur that can harm our environment, it is crucial that we ensure response efforts are guided by the safest, most effective, most protective practices,” said Clifford Villa, Deputy Assistant Administrator for EPA’s Office of Land and Emergency Management. “This rule will increase transparency and reporting requirements and support the emergency responders working to protect our communities.”
The rule amends Subpart J of the National Contingency Plan, which governs the listing and use of dispersants and other chemical and biological agents when responding to oil discharges into waters of the United States and adjoining shorelines. The final rule amends the Subpart J criteria for listing agent products on the NCP Product Schedule, updates the product testing protocols and revises the authorization of use provisions for listed agent products. On-Scene Coordinators may authorize the use of products listed on the NCP Product Schedule as part of an oil spill response.
The amended and new provisions in the final rule are intended to improve the safety and effectiveness of spill mitigating products, better tailor the use of these products to reduce risks, and ensure emergency responders have sufficient information to make better decisions about how and when to use chemical or biological agents.
Highlights of the rule include:
- Strengthening requirements for listing products on the NCP Product Schedule. These amendments ensure that only products that perform effectively in laboratory testing will be listed on the NCP Product Schedule for use in mitigating the effects of oil discharges.
- Requiring product manufacturers to provide more detailed product information, including health and safety information, to aid responders in evaluating whether to use specific products when responding to oil spills.
- Increasing access to information on product components.
- Establishing limitations and prohibitions on the use of certain agents.
- Establishing a publicly available Sorbent Product List that is separate from the NCP Product Schedule.
- Clarifying responsibilities and procedures for authorizing the use of these products.
- Notifying the public of when these chemical and biological agents are used in an emergency response.
United States Files Civil Action To Collect Unpaid Civil Penalties and Reclamation Fee Debts from 13 Coal Companies
The Justice Department today announced the filing of a civil action against James C. Justice III and 13 coal companies he owns or operates seeking to collect unpaid civil penalties previously assessed by the Department of the Interior (DOI) Office of Surface Mining Reclamation and Enforcement (OSMRE), as well as Abandoned Mine Land (AML) reclamation fee and audit debts.
“Our environmental laws serve to protect communities against adverse effects of industrial activities including surface coal mining operations,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “Through this suit, the Justice Department seeks to deliver accountability for defendants’ repeated violations of the law and to recover the penalties they owe as a result of those violations.”
“Over a five-year period, defendants engaged in over 130 violations of federal law, thereby posing health and safety risks to the public and the environment,” said U.S. Attorney Christopher R. Kavanaugh for the Western District of Virginia. “After given notice, they then failed to remedy those violations and were ordered over 50 times to cease mining activities until their violations were abated. Today, the filing of this complaint continues the process of holding defendants accountable for jeopardizing the health and safety of the public and our environment.”
Pursuant to the Surface Mining Control and Reclamation Act (SMCRA), when a permittee violates SMCRA or their applicable permit, OSMRE issues a notice of violation (NOV) for non-imminently dangerous violations. The NOV sets a deadline for abating the violation. If the permittee fails to abate the violation by the NOV’s deadline, OSMRE issues a cessation order to halt mining until the violation is abated. If the permittee still fails to abate the violation within 30 days of the cessation order, OSMRE can take certain actions, including assessing civil penalties. If the violation creates an imminent danger to the health or safety of the public, OSMRE issues a second type of cessation order, called an Imminent Harm Cessation Order (IHCO), in lieu of an NOV, which requires cessation of active mining until the violation is abated. Separately, a director, officer or agent of a corporate permittee can be subject to individual civil penalties for willfully and knowingly authorizing, ordering or carrying out a permit violation or failure to comply with certain OSMRE orders.
From 2018 to 2022, OSMRE cited the defendants for over 130 violations and issued the companies over 50 cessation orders. The underlying violations pose health and safety risks or threaten environmental harm. In addition, defendants failed to pay required AML fees, which fund the reclamation of coal mining sites abandoned or left in an inadequate reclamation status. According to today’s filing, the total amount of the penalties and AML fees, plus interest, penalties and administrative expenses, owed by the defendants is approximately $7.6 million.
EPA Fines Heritage Environmental Services, LLC for Alleged Hazardous Waste Violations
Heritage Environmental Services LLC in Kansas City, Missouri, will pay $74,095 in civil penalties to resolve alleged violations of the federal Resource Conservation and Recovery Act.
According to the U.S. Environmental Protection Agency (EPA), the company operates as a hazardous and solid waste storage facility and failed to comply with the terms of its hazardous waste permit, including:
- Failure to operate in a manner that minimizes releases of hazardous wastes.
- Failure to conduct daily inspections on hazardous waste tanks.
- Failure to ensure that all open-ended valves or lines at the facility were equipped with closures.
- Failure to obtain a hazardous waste permit for wastes not covered by the facility’s permit.
“Mismanagement of hazardous waste threatens human health and the environment,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “EPA is committed to protecting communities from harmful chemical waste releases and leveling the playing field with companies that comply with the law.”
Upon notification to Heritage Environmental Services of the alleged violations, the company took immediate steps to return to compliance.
The Resource Conservation and Recovery Act creates the framework for the proper management of hazardous and non-hazardous solid waste.
EPA Finalizes Rule To Increase Transparency, Modernize Reporting Under Toxic Substance Control Act
The U.S. Environmental Protection Agency (EPA) issued a final rule to update confidential business information (CBI) requirements under the Toxic Substances Control Act (TSCA) that increases transparency, modernizes the reporting and review procedures for CBI, and aligns with the 2016 amendments to TSCA. The final rule allows EPA to release non-confidential information more quickly, demonstrating EPA’s ongoing commitment to transparency and data integrity, and makes the process for submitting and substantiating CBI claims more efficient.
“Today’s rule is an important step forward as we work to improve transparency in our chemical safety program,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff. “Putting a process in place to make more health and safety data publicly available more quickly helps give communities the information they need to make informed decisions about the chemicals they’re exposed to.”
The rule includes clarifying changes to ensure the regulations specify precisely where EPA has a statutory obligation to require substantiation and deny claims, which will result in more information being made available. The final rule also includes the following.
Measures to Increase Transparency
- Changes to better assure that the existence and scope of a CBI claim is clear and limited to information the submitter views as confidential. The final rule also narrows the types of information in health and safety studies that can be claimed as CBI. For example, the name of the laboratory conducting the study cannot be claimed as CBI unless the name of the laboratory would reveal an association with a company whose connection to a chemical is considered CBI.
- A provision to address inappropriate or over-broad CBI claims in public copies of TSCA submissions, especially health and safety related information, that specifies a process for the submitter to promptly correct those issues early in the CBI review and that EPA would promptly deny any remaining inappropriate claims. These changes are expected to remove ambiguity about the scope or validity of claims, permitting more rapid review of valid CBI claims and public access to non-CBI information. The final rule does not include EPA’s proposal to create a new “re-consideration process” in regulation for denied claims, which could have had the unintended result of more requests for reconsideration and associated delays in public access. Rather, EPA will rely on its existing process.
- Expanded requirements for electronic reporting and uniform requirements to provide publicly releasable copies of certain documents like scientific studies, both of which would make more data available to the public more quickly.
- Requirements for electronic communication and maintaining current and accurate contact information will assure more prompt delivery of required notices to submitters of CBI claims, thereby permitting EPA to make information for which CBI claims have been withdrawn, denied, or expired available to the public more quickly.
- The final rule also clarifies language included in the proposed rule on how EPA will handle information used in the TSCA program but obtained under other statutes that also has valid CBI claims under those other statutes, in order to ensure consistency with the agency’s duty to make information publicly available when it’s legally able to do so. For example, data used under TSCA might have originally been submitted under and protected from disclosure under another statute, such as the Federal Insecticide, Rodenticide and Fungicide Act (FIFRA), which prohibits disclosure of certain pesticide data to persons who are acting on behalf of a multinational competitor of the data submitter. The final rule would preserve the protections from disclosure that are required under FIFRA for international trade purposes, while maximizing the disclosure of information that cannot be claimed as confidential business information under TSCA.
Measures to Modernize CBI Procedures and Ensure Consistency with Updated TSCA
- Clear and uniform guidance on requirements for assertion and maintenance of CBI claims, including a standard set of substantiation questions used to support a CBI claim.
- Requirements for electronic reporting of virtually all CBI claims, with enhancements to reporting tools that will prevent or mitigate common procedural errors EPA has observed to:
- better assure procedural requirements for asserting a claim are met (with built-in certification and validation features for substantiation and generic names);
- better and more narrowly articulate the confidential information that is being claimed; and
- clarify CBI provisions that apply to individual data elements, such as where CBI claims are not permitted or where upfront CBI substantiation is not required to support a claim.
- Establishment of a new section of the TSCA regulations to centralize and standardize how TSCA CBI claims must be asserted and substantiated.
- Requirements that when health and safety information is submitted, submitters also use an appropriate Organisation for Economic Co-operation and Development harmonized template (when available), a format that will allow data to be more readily used and shared within the Agency while allowing submitters to indicate CBI claims more clearly for EPA consideration.
In the coming weeks, EPA will host a public webinar targeted to companies that may include CBI claims in their TSCA submissions, but useful for anyone looking for an overview of the final rule. The date, time and registration information will be announced soon.
The rule takes effect 60 days after publication in the Federal Register.
St. Louis Chemical Company Agrees To Pay Penalty for Failure To Report Toxic Chemical Releases
The U.S. Environmental Protection Agency (EPA) will collect a $49,953 penalty from TransChemical Inc., which owns and operates a chemical distribution facility in St. Louis, Missouri, to resolve alleged violations of the federal Emergency Planning and Community Right-to-Know Act (EPCRA). According to EPA, the company failed to submit required annual reports listing toxic chemicals at the facility.
“Communities, particularly those that are already overburdened by pollution, have a right to know about toxic chemicals in their area,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “Failure to report such data also prevents governments and industry from using this important information in the development of regulations, guidelines, and air quality standards.”
As part of the settlement with EPA, the company also agreed to install controls around the facility designed to contain releases of chemicals to bordering neighborhood properties. EPA says that TransChemical will spend approximately $151,000 to complete the containment project.
EPA’s review of TransChemical Inc.’s records showed that the company manufactured, processed, or otherwise used quantities of toxic chemicals above thresholds that require the company to submit annual reports to EPA. Specifically, the company failed to timely submit reports for methanol, xylene, toluene, tert-butyl alcohol, n-hexane, n-butyl alcohol, methyl isobutyl ketone, and nonylphenol ethoxylates in 2017, 2018, and 2019.
TransChemical’s facility is located in an industrial area EPA identified as potentially having high pollution and socioeconomic burdens. EPA is strengthening enforcement in such communities to address disproportionately high and adverse human health or environmental effects of industrial operations on vulnerable populations.
EPCRA requires facilities to report on the storage, use, and releases of toxic chemicals. The information submitted is compiled in the Toxics Release Inventory, which supports informed decision-making by companies, government agencies, non-governmental organizations, and the public.
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