TSCA Rule On Cadmium and Cadmium Compounds Withdrawn

EPA is withdrawing the final Toxic Substances Control Act (TSCA) section 8(d) Health and Safety Data Reporting Rule that it issued on December 3, 2012. The health and safety data reporting rule would have required manufacturers (including importers) of cadmium or cadmium compounds, including as part of an article, that have been, or are reasonably likely to be, incorporated into consumer products to report certain unpublished health and safety studies to EPA. Since the final rule's issuance, EPA has received a number of letters, including requests for withdrawal, asking questions and raising concerns about the scope and extent of the immediate final rule that indicate that there is significant confusion and uncertainty about the final rule in certain industrial sectors subject to the final rule. EPA believes that some of the points raised in the letters warrant additional consideration by the Agency.


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Reissue of PM2.5 Determination For Milwaukee-Racine, Wisconsin Area

EPA has proposed to determine that the Milwaukee-Racine, Wisconsin area had attained the 2006 24-hour fine particle (2006 PM2.5) National Ambient Air Quality Standard (NAAQS) and to more clearly explain EPA's interpretation on the applicability of CFR 51.1004(c) to the 2006 PM2.5 NAAQS.

As background, on April 24, 2012, EPA published a proposed determination that the Milwaukee-Racine, Wisconsin area had attained the 2006 PM2.5 NAAQS. EPA received comments on the original proposal suggesting that the suspension of certain Clean Air Act (CAA) requirements cannot be applied in this instance because it only pertains to the 1997 PM2.5 NAAQS and not to the 2006 PM2.5 NAAQS. As a result, EPA has reproposed portion of the original proposed determination to address this issue. EPA will address all comments received on the original proposal and the current reproposal in the Federal Register final notice. Comments must be received on or before January 28, 2013.

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Amendment For Diesel Sulfur Rule For Transmix and Pipelines

EPA has issued a final rule to amend provisions in the diesel sulfur fuel programs to provide necessary flexibility for transmix processors and pipeline operators who produce locomotive and marine diesel fuel. The diesel transmix amendments will reinstate an allowance for transmix processors and pipeline operators to produce 500 ppm sulfur diesel fuel for use in older technology locomotive and marine diesel outside of the Northeast Mid-Atlantic (NEMA) Area and Alaska after 2014.

These provisions were originally put in place as a necessary flexibility to address feasibility and cost issues associated with handling of the transmix volume generated in the pipeline distribution system. These provisions allowed the fuel distribution system to continue to function while transitioning to ultra-low sulfur diesel fuel (ULSD). The technology to economically reduce the sulfur content of transmix distillate product to 15 ppm at transmix processor and pipeline facilities did not exist, and any alternative measures of disposing of transmix were likewise deemed infeasible or cost prohibitive as the market was then configured. Thus, in order to implement the ULSD regulations, an outlet for the consumption of transmix distillate product was necessary. With no outlet, transmix would build up in storage tanks and pipelines would need to cease operations. When the ULSD standards were expanded to nonroad, locomotive, and marine (NRLM) diesel fuel, this would have removed the sole outlet in most areas of the country.

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EPA Summary of Enforcement Actions In 2012

On December 17, 2012, US EPA released its annual enforcement results. In 2012, EPA levied $252 million in civil and criminal penalties. According to EPA, the FY 2012 results include:

• Sustained and focused enforcement attention on serious violators of clean drinking water standards has resulted in improvements in compliance. The number of systems with serious violations has declined by more than 60 % in the past three years as a result of combined federal and state enforcement work, protecting people's health through safer drinking water.

• More than 67 % of large combined sewer systems are implementing solutions to reduce raw sewage and contaminated stormwater. EPA is working with communities to design integrated solutions to these water quality problems, and incorporating innovative and cost effective green infrastructure to save money and achieve multiple community benefits.

• EPA is bringing criminal prosecutions where criminal activity threatens public health, like failing to use required pollution control equipment or knowingly violating pollution rules resulting in death or serious harm or falsifying pollution information.

• EPA is advancing environmental justice by incorporating fenceline monitoring, which requires companies to monitor their air emissions and make that data available public, into settlements, ensuring that local residents have access to information about pollution that may be affecting their community. EPA also secured $44 million in additional investments through settlements for supplemental environmental projects that benefit impacted communities.

• EPA is increasing transparency to use the power of public accountability to help improve environmental compliance. EPA's 2012 enforcement actions map provides information about violators in communities. EPA's state dashboards and Clean Water Act pollutant loading tool provides the public with information about local pollution that may affect them and allows the public to take a closer look at how government is responding to pollution problems.


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Final Boiler and Process Heater NESHAP Released

On December 21, 2012, the Environmental Protection Agency (EPA) released air pollution rules regulating hazardous air emissions from industrial boilers and process heaters. This package of combustion rules includes a revised version of the Industrial Boiler Maximum-Achievable Control Technology standard (Boiler MACT).

The final combustion rule package addresses major and area source industrial boilers, as well as commercial and industrial solid waste incinerators (CISWI). These rules provide new emissions limits, compliance dates and important clarifications on how the rules are to be implemented. The rule package also includes guidance for defining whether non-hazardous secondary materials (NHSM) are to be considered a solid waste or a fuel, which is a critical decision for determining whether combustion of such materials must be regulated under the generally more stringent incinerator CISWI rules or the revised Boiler MACT rules.

Read a summary of the key changes from the March 2011 rules

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ADEQ SIP For Regional Haze Program

EPA is proposing to approve in part and disapprove in part a revision of Arizona's State Implementation Plan (SIP) to implement the regional haze program for the first planning period through July 31, 2018. This proposed action includes all portions of the SIP except for three electric generating stations that were addressed in a final rule published in the Federal Register on December 5, 2012. The Clean Air Act (CAA) requires states to adopt and submit to EPA SIPs that assure reasonable progress toward the national goal of achieving natural visibility conditions in 156 national parks and wilderness areas designated as Class I areas.

EPA is taking action on Arizona's Best Available Retrofit Technology (BART) control analysis and determinations, Reasonable Progress Goals (RPGs) for the State's 12 Class I areas, Long-term Strategy (LTS), and other elements of the State's regional haze plan. If EPA takes final action to disapprove any portion of the SIP, EPA will work with the State to develop plan revisions to address the disapproved provisions.

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Proposed Action On Wisconsin PM2.5 SIP

EPA is proposing to disapprove a revision to Wisconsin's State Implementation Plan (SIP) submitted by the Wisconsin Department of Natural Resources (WDNR) in a letter dated May 12, 2011. The revision concerns permitting requirements relating to particulate matter of less than 2.5 micrometers (PM2.5). EPA is proposing to disapprove the revisions because they do not meet the 2008 PM2.5 SIP requirements.

As background, in May 2008 EPA finalized regulations to implement the New Source Review (NSR) Implementation Rule for PM2.5 to include the major source threshold, significant emissions rate and offset ratios for PM2.5, interpollutant trading for offsets and applicability of NSR to PM2.5 precursors. On October 20, 2010, EPA amended the requirements for PM2.5 under the Prevention of Significant Deterioration (PSD) program by adding maximum allowable increase in ambient pollutant concentrations and screening tools known as the Significant Impact Levels and Significant Monitoring Concentration (SMC) for PM2.5.

On May 12, 2011, Wisconsin requested a revision to its SIP to include new permit requirements relating to PM2.5. The provisions were designed to match the requirements set forth in the May 2008 and October 2010 rules. The submittal included permanent rules to define major source thresholds and significant emission increase levels; establish the SMC for PM2.5; establish interpollutant trading ratios for PM2.5, sulfur dioxide (SO2) and nitrogen oxides (NOX); and clarify existing nonattainment area permitting rules.

On July 21, 2011, EPA announced a change in its policy concerning the development and adoption of interpollutant trading provisions for PM2.5. The new policy requires that any ratio involving PM2.5 precursors submitted to EPA for approval for use in a state's interpollutant offset program for PM2.5 nonattainment areas must be accompanied by a technical demonstration that shows the net air quality benefits of such a ratio for the PM2.5 nonattainment area in which it will be applied. In a letter dated March 5, 2012, WDNR requested to withdraw its request to have NR 408.06(1)(cm), the provision pertaining to interpollutant trading ratios, included in its 2011 submittal.

EPA has evaluated WDNR's proposed revisions to the Wisconsin SIP in accordance with the Federal requirements governing state permitting programs. EPA is proposing to disapprove these revisions because they do not meet all the requirements of the 2008 rules. According to EPA, Wisconsin's current SIP does not contain the explicit language to account for PM2.5 and PM10 condensables in permitting decisions, as codified in 51.166(b)(49)(vi) and 40 CFR 52.21(b)(50)(vi), and to date, the State has not made a submission with such revisions.

EPA is proposing to disapprove the revisions to Wisconsin rules NR 400, 404, 405, 406, 407, 408 and 484, submitted by the State on May 12, 2011, for approval into the SIP. The full or partial disapproval of a SIP revision triggers the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the state corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP.

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GHG Permitting Program Approval Proposed For Arkansas

The U.S. Environmental Protection Agency (EPA) has proposed to approve the State of Arkansas’ program for permitting new facilities that will emit significant amounts of greenhouse gases (GHGs). If approved, the state’s program will replace a federal plan that had been in place since January 2011. The EPA proposed approval will be published in the Federal Register in 7 to 10 days and will available for public comment for 30 days.

Final approval would provide the State of Arkansas with authority to issue GHG permits and establish appropriate emissions levels for new or heavily modified GHG sources. These types of emissions are regulated under the Clean Air Act’s provisions to prevent new facilities from significantly decreasing air quality. EPA has been the GHG permitting authority in Arkansas since the state did not have such a program in place.


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Final Annual PM2.5 Air Quality Standard

In response to a court order, the U.S. Environmental Protection Agency (EPA) has finalized an update to its national air quality standards for fine particulate material (PM2.5), setting the annual health standard at 12 micrograms per cubic meter. The update has no effect on the existing daily standard for PM2.5 or the existing daily standard for coarse particles (PM10).

Fine particle pollution can penetrate deep into the lungs and has been linked to a wide range of serious health effects, including premature death, heart attacks, and strokes, as well as acute bronchitis and aggravated asthma among children. A federal court ruling required EPA to update the standard based on best available science.

By 2020, 99% of U.S. counties are projected to meet revised health standard without any additional actions. It is expected that fewer than 10 counties in the United States will need to consider any local actions to reduce fine particle pollution in order to meet the new standard by 2020, as required by the Clean Air Act.

The Clean Air Act requires EPA to review its air quality standards every five years to determine whether the standards should be revised. The law requires the agency to ensure the standards are “requisite to protect public health with an adequate margin of safety” and “requisite to protect the public welfare.” A federal court required EPA to issue final standard by December 14, because the agency did not meet its five-year legal deadline for reviewing the standards.
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Performance Metrics For Integrity Management Programs

The Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an Advisory Bulletin to operators of gas transmission and hazardous liquid pipeline facilities regarding their responsibilities under federal integrity management regulations to perform evaluations of their integrity management programs using meaningful performance metrics.

Advisory Bulletin (ADB-20l2-10) advises operators to critically review their processes and methods for evaluating integrity management program performance and take action to strengthen these processes where warranted. An effective operator performance evaluation process is expected to have the following characteristics:

• A well-defined description of the scope, objectives, and frequency of program evaluations.
• The use of periodic self-assessments, internal or external audits, management reviews, performance metrics analysis, benchmarking against other operators, or other self-critical evaluations to assess program effectiveness.
• Clear performance goals and objectives to measure the effectiveness of key integrity activities
• Clear assignment of responsibility for implementing required actions.
• Review and follow-up of program evaluation results, findings, and recommendations, etc., by appropriate company managers.

Operators are also advised that a clear and meaningful set of performance metrics is essential to program effectiveness. An effective program for measuring integrity management program effectiveness should have the following characteristics:

• A description of the type of performance measures to be used, along with the data sources, data validation and quality assurance activities, the frequency of data collection, and any normalization factors.
• A means to update the performance measures (if needed) to assure they are providing useful information about the effectiveness of integrity management program activities.
• The use of performance metrics data to check and calibrate the operator's risk analysis tools to assure these best represent the performance of the operator's specific assets.

The performance metrics that are required to be reported to PHMSA annually, such as the number of miles of pipeline assessed, number of anomalies found requiring repair or mitigation, etc., are a small subset of the overall suite of metrics used by an operator to evaluate its program. A much larger set of operator-specific metrics to be used internally is needed to effectively evaluate an integrity management program performance. Metrics should be developed for each of the following:

• Overall program effectiveness indicated by the number of releases, number of injuries or fatalities, volume released, etc.
• Specific threats that include both leading and lagging indicators for the important integrity threats on an operator's systems. These include:
  • Activity Measures that monitor the surveillance and preventive activities that are in place to control risk
  • Deterioration Measures that monitor operational and maintenance trends to indicate if the program is successful or weakening despite the risk control activities in place. (Also identified as Operational Measures in ASME B31.8S.
  • Failure Measures that reflect whether the program is effective in achieving the objective of improving integrity. (Also identified as Direct Integrity Measures in ASME B31.8S)
  • Metrics that measure and provide insights into how well an operator's processes associated with the various integrity management program elements are performing. Examples of such processes would include integrity assessment, risk analysis, the identification of preventive and mitigative measures, etc.

Finally, operators must keep records supporting the decisions, analyses, and processes developed and used in their evaluation of integrity management program effectiveness. These records should include those justifying the selection of performance metrics, the performance metric data and trends, and how these metrics are used to improve the integrity management program. Operators should also be diligently working to eliminate information and data gaps throughout their entire integrity management program.

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Rules For NP and NPE Under TSCA and EPCRA 313

EPA has initiated rulemaking to restrict the use of nonylphenol (NP) and its ethoxylates (NPEs) under a proposed significant new use rule (SNUR) using existing Toxic Substances Control Act (TSCA) authority and under the Emergency Preparedness and Community Right-to-Know Act (EPCRA). EPA plans to issue the proposal in the next year. NP and NPEs are used in industrial laundry detergents, oil spill dispersants, personal care products, industrial soaps, and other products, but the agency has raised concerns that the chemicals are highly toxic to aquatic life, environmentally persistent, moderately bioaccumulative and potential endocrine disruptors.

As part of the action plan, EPA is working with the industrial laundry industry to phase out that use of the chemicals by the end of 2014. The action plan also says the agency intends to encourage manufacturers of all NPE-containing direct-release products, such as firefighting gels and foams, dust-control agents and de-icers, to move to NPE-free formulations. Earlier this year the agency released an alternatives assessment for NP and NPEs through its Design for the Environment program that identified eight safer alternatives. The TSCA section 5 SNUR would serve as the next step under EPA's action plan, complementing the phaseout by restricting industry from reintroducing the chemical in new applications.

The SNUR would require persons who intend to manufacture, import, or process certain NP and NPE chemicals for an activity that is designated as a significant new use by the proposed rule to notify EPA at least 90 days before commencing that activity. The notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs to prevent unreasonable risk to human health or the environment.

The action plan also indicates EPA may add the chemicals to its EPCRA Section 313 Toxics Release Inventory (TRI) list, and has proposed under TSCA section 5(b)(4) to put NPs and NPEs on a list of chemicals that present or may present an unreasonable risk of injury to health or the environment. The chemicals-of-concern list alone would have no regulatory consequences or trigger a rule.

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Mercury and Air Toxics Standards Reconsidered

US EPA has published a proposed rule to reconsider certain new source and startup and shutdown issues as they apply to the national air pollution standards for utilities and industrial steam-generating units. The NESHAP rule was issued under the Clean Air Act and is most often referred to as the Mercury and Air Toxics Standards (MATS). The new source performance standards (NSPS) being reconsidered are often referred to as the Utility NSPS.

EPA received petitions for reconsideration of aspects of the MATS and the Utility NSPS. In response, the Agency is reconsidering the requirements applicable during periods of startup and shutdown for MATS, the startup and shutdown provisions related to the particulate matter (PM) standard in the Utility NSPS, and certain revisions to "definitional and monitoring" provisions of the Utility NSPS. Finally, EPA is proposing technical corrections to the MATS and the Utility NSPS.

The Agency says it will accept comments on the aspects of the final MATS and Utility NSPS rules specifically identified in the Federal Register notice. Other aspects of the rules are not open for comment. Comments must be received on or before December 31, 2012.

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