EPA Update

EPA Region 8 Update

Utah LEPC Conference October 2018

Agenda 

Recent Rule Updates

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Emergency Response and Removal Program Overview – –

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Requesting EPA’s assistance Local Government Reimbursement Program

Cool Pictures

(5-6 Minutes(3 Minutes) 2

Clean Water Act Hazardous Substances Rule ď Ź

July 2015- EPA sued by environmental organizations- no regulations on hazardous substances to water under CWA

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National work group developed to research instances of chemical releases in water

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Clean Water Act Hazardous Substances Rule 

Work group analyzed the frequency and impacts of releases as well as existing framework of regulations

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June 2018: EPA proposed no action

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Comment period closed August 24, 2018

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Update on CAFO reporting CERCLA/EPCRA Administrative Reporting Exemption Rule (Farms that that release hazardous substances from animal waste to the air and meet or exceed their reportable quantities for CERCLA Reporting). –

Final (original) rule published December 18, 2008

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Exempted existing CERCLA 103 and EPCRA 304 reporting requirements for farms 5

Then EPA was sued…

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Update on CAFO reporting September 2015- DC Circuit Court granted a motion to recall the voluntary mandate of the ruletriggering briefing on the legality of 2008 rule December 2016- oral arguments were heard by the U.S. Court of Appeals for the DC Circuit April 2017- U.S. Court of Appeals for the DC Circuit vacated the 2008 exemption (being neither a reasonable interpretation of statutory ambiguity or use of an implied authority to create exceptions to statutory mandates).

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FARM Act amendments August 2018: EPA published a final rule revising regulations promulgated under CERCLA 103/EPCRA 304 EPA removed regulatory provisions associated with the administrative reporting exemption for air releases of hazardous substances from animal waste at farms

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RMP Amendments Rule Original RMP promulgated in 1996 under Section 112(r) of the Clean Air Act •Applies

to all stationary sources with processes that contain more than a threshold quantity of a regulated substance (approx. 12,500 sources) •Requires the source to develop a Risk Management Plan (RMP) Addresses elements aimed at preventing accidental releases and reducing the severity of releases that occur

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RMP Amendments Rule January 2017 – EPA published final RMP Amendments rule which include:    

third-party audits safer technology & alternatives analysis (STAA), incident investigation root cause analysis enhanced local emergency coordination, emergency exercises, information availability, & other minor changes

Original effective date: March 14, 2017

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RMP Amendments Rule But wait‌

April 2017- EPA proposed a 20-month delay of the effective date of the Amendments final rule, in order to conduct a reconsideration proceeding June 2017-EPA issued a final rule to delay effective date to February 19, 2019 11

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And EPA was sued…

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RMP Amendments Rule 

June 2017- a coalition of environmental advocates and a labor union filed a petition for judicial review of EPA’s delay rule action in the U.S. Court of Appeals for the D.C. Circuit

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Several states subsequently filed a petition for review (NY, IL, IA, ME, MD, MA, NM, OR, RI, VT, WA)

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RMP Amendments Rule August 2018- US Court of Appeals for the DC Circuit Court vacated the June 2017 rule delaying the RMP Amendments Rule September 2018- Court issued its mandate, which makes the 2017 RMP Amendments Rule now effective ď ŹNot

all provisions require current compliance Stay tuned

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RMP Amendments Rule    

Emergency Coordination Provisions Emergency Response Program Provisions Prevention Program Provisions Information Availability Provisions

https://www.epa.gov/sites/production/files/201809/documents/rmp_emergency_coordination_ minor_provisions_compliance_info_9-2418_final.pdf 15

But wait, there’s more‌ May 2018- The RMP Reconsideration Rule was published The proposed version takes many elements of the RMP Amendments Rule and cuts it down

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RMP Reconsideration Rule  

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Comment period closed August 2018 EPA is now reviewing public comments and working toward a final rule that may revise or rescind some provisions of the RMP Amendments rule and adjust compliance dates https://www.epa.gov/rmp/risk-management-plan -rmp-delay-rule-vacatur

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Waters of the United States (WOTUS)

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WOTUS •

August 2018- District court in South Carolina issued a decision to vacate and nationally enjoin the agencies final rule which added an applicability date to the 2015 Clean Water Rule

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The 2015 version of the Clean Water Rule is being implemented in 22 states, and the original 1973 is currently being implemented in the remaining 28 states (which includes all states in Region 8)

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WOTUS There is still litigation ongoing and changes are made frequently

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Switching gears…

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National Response System and EPA Region 8 Emergency Response Overview

How does response work?

Emergency Management: NRF vs. NCP 

DHS/FEMA – Stafford Disaster Relief and Emergency Assistance Act and the National Response Framework (NRF) – – –

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Requires President/Governor to Declare a Disaster Incidents/Spills of National Significance Not a promulgated regulation

EPA/USCG – National Oil and Hazardous Substances Contingency Plan (NCP) – –

Regulation on Federal Oil/HazMat Response Protocols Dictates Federal Agency (EPA/USCG/DOD/DOE) Implementation of CERCLA and CWA/OPA 23

Implementing Regulation (NCP) 

National Contingency Plan –

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40 CFR Part 300

Covers Our Response Role Under Each Statute Provides for State/Local Funding and Cost Recovery

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Legislative Authorities for Response 

Hazardous Substances or Pollutants and Contaminants –

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Oil Spills –

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Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Clean Water Act (CWA) as amended by the Oil Pollution Act (OPA)

National Disasters –

Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)

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National Approach to Response 

Inter-Regional Resource Sharing – –

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Quick Access to Special Teams – –

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ERT USCG Strike Teams

Centralized Communication Capabilities – – –

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Back Up Regions “Ten Region” Response Capability

Regional/National RRC Facilities NRC Communications Bridge ERT Communications Bridge

Consistent and Interchangeable Equipment Capabilities

Emergency Response and Removal 

The EPA Emergency Response (ER) Program addresses urgent threats to human health, public welfare, or the environment

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This can include but is not limited to: Hazardous chemical releases anywhere  Oil or fuel spills into “navigable” water  “Pollutant or contaminant” discharges into the environment  Threatened/potential releases/discharges – Abandoned containers/facilities – Oil spills up gradient from water 

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ER Program Personnel On-Scene Coordinators (OSCs) ď ŹOSCs have immediate access to technical and cleanup contractors if the responsible party or locals cannot adequately mitigate hazards ď ŹOSCs

also have immediate access to resources via the Superfund and the Oil Spill Liability Trust Fund

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On-Scene Coordinators (OSCs) 

Nationwide, there are approximately: 250 EPA OSCs 46 USCG OSCs

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Respond with immediate support from contractors, and follow-on support from EPA Response Support Corps, NRS Special Forces, and other supporting federal agencies (e.g., NOAA, DOI, OSHA, USFS)

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On-Scene Coordinator Roles 

Ensure proper notification and evaluate hazards

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Assist or join in Unified Command

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May provide resources to or oversee a response by states, locals, or even responsible parties

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Have authority to direct on-scene environmental response efforts, if needed

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Maintain decision-making authority for protecting human health and the environment

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Ensure access to information for stakeholders 30

National Response System and EPA Region 8 Emergency Response Overview

Requesting EPA Assistance

Notification and Requesting EPA 

Contact EPA via the National Response Center: 1-800-424-8802 – – –

One-stop call for assistance and spill reporting Caller may request to speak directly to an OSC EPA OSCs are available 24/7/365

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File an NRC report online: www.nrc.uscg.mil

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Contact Region 8 Duty OSC: 303-293-1788

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Why is NRC notification important?

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NRC Notification is Required by 40 CFR §110.6 (Oil), §300.125(a) & §302.6 (HazMat)

Provides Mechanism to Begin Obligating Federal Funds from the “Superfund” or OSLTF Is the primary link to FOSCs and federal technical/financial assistance for spill response –

Responsible parties have legal obligation to report spills, but anybody can voluntarily report

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What does this mean to an LEPC? 

Unlike FEMA, EPA cannot assume past costs prior to our involvement

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EPA’s funding options vary depending on Hazmat or Oil –

EPA can supplement the response effort with resources on either type of spill

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Clean up costs 

Oil: –

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EPA can issue Pollution Removal Funding Agreements (PRFAs) to local agencies to perform work EPA can also assume control and use its own contractors (or direct the Responsible Party if known)

HazMat: – –

Getting funding to a local agency is harder.

EPA generally forms Unified Command and assumes control of the scene when the local agency determines they no longer need to be involved 35

Local Governments Reimbursement Program 

“Release or threat of release” Of a “hazardous substance into the environment” (40 CFR §300.400(a)(1)) -orOf a “pollutant or contaminant that presents an imminent and substantial danger to public health and welfare” (40 CFR §300.400(a)(2))

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NOT Oil or Petroleum Limitations on response include: naturally occurring substances, parts of structures, and deterioration of drinking water systems

Local Government Reimbursement (LGR) 

Local and Tribal Governments (NOT States) – – – –

One reimbursement request per response Maximum award of $25,000 per response, not per agency responding Reimbursed for “temporary emergency measures” to mitigate releases Does not reimburse expenditures for “providing traditional local services”

Scenario for using LGR  

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Clandestine methamphetamine lab-discovered by law enforcement agency HazMat response contractor requested to remove chemical hazards and decontaminate law enforcement personnel Responsible party was incarcerated and had no resources to pay for the removal action Law enforcement agency had no budget for HazMat response Local Government Reimbursement awarded $25,000 for contractor and overtime costs

More about LGR  

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All actions taken must be consistent with CERCLA and the NCP Local emergency response budget (if any) must be depleted before LGR reimbursement is possible Cost recovery must be pursued before LGR reimbursement is possible

More about LGR

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Application must be signed by highest ranking government official Must be submitted within one year of removal completion http://www.epa.gov/emergencies/content/lgr

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(800) 431-9209 or lgr.epa@epa.gov

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EPA Emergency Response So what are the typical responses EPA sees in Utah?

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Containers- Abandoned Chemicals

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Containers-Illegal Dumping

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Mercury Spills (Residential)

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Oil Spills Vehicle Accident leading to oil spill

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Oil spills at fixed facilities

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Removal Actions – Mining Sites

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Natural Disasters – Hurricane Katrina

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Minot Floods 2011

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Colorado Floods 2013

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Emergency Response - Anthrax

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Emergency Response - Ricin

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Questions?

Emergency Preparedness Unit: Bre Bockstahler EPCRA Coordinator FRP Coordinator 303-312-6034 bockstahler.breann@epa.gov Lori Reed EPCRA-SEE 303-312-6190 reed.lori@epa.gov

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