New US EPA Rule on PFAS (US)

The US has rules on PFAS – details are here.

In October 2023, the Environmental Protection Agency (EPA) is adding per- and polyfluoroalkyl substances (PFAS) subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). These PFAS already have a lower reporting activity threshold of 100 pounds.

This new rule is effective November 30, 2023 and applies for the reporting year beginning January 1, 2024 (reports due July 1, 2025).

Manufacturers, processors and users of listed PFAS or any chemicals listed under 40 CFR 372.28, may be potentially affected.

The rule is here. Readers are advised to check the industry codes listed.

New Rule on Occupational Exposure to Silica (US)

The US Occupational Safety and Health Administration (OSHA) proposes to amend its existing standards for occupational exposure to respirable crystalline silica.

The basis for issuance of this proposal is a preliminary determination by the Assistant Secretary of Labor for Occupational Safety and Health that employees exposed to respirable crystalline silica face a significant risk to their health at the current permissible exposure limits and that promulgating these proposed standards will substantially reduce that risk.

The rule change proposes a new permissible exposure limit, calculated as an 8-hour time-weighted average, of 50 micrograms of respirable crystalline silica per cubic meter of air (50 μg/m3).

OSHA also proposes other ancillary provisions for employee protection such as preferred methods for controlling exposure, respiratory protection, medical surveillance, hazard communication, and recordkeeping.

OSHA is proposing two separate regulatory texts—one for general industry and maritime, and the other for construction—in order to tailor requirements to the circumstances found in these sectors.

OSHA’s Notice of Proposed Rulemaking (NPRM) for Occupational Exposure to Respirable Crystalline Silica was published in the Federal Register on September 12, 2013.

Further information is found here and here.

New Clean Water Act Definition of “Waters of the US” (US)

The U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers jointly released 26th March a proposed rule to clarify protection under the federal Clean Water Act for streams and wetlands.

My 2013 post on this is here.

The proposed definitions of waters will apply to all Clean Water Act programs. No new types of waters that have not historically been covered under the Clean Water Act will be encompassed, consistent with the US Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

– Most seasonal and rain-dependent streams will continue to be protected.
– Wetlands near rivers and streams will continue to be protected.

Other types of waters that may have more uncertain connections with downstream water will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

The proposed rule preserves existing Clean Water Act exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 56 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. The agencies will work together to implement these new exemptions and periodically review, and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

Further information is found here and here.

Fracking and Federal Clean Water Legislation (US)

Information on US federal regulation of water impacts is found here.

Per the USEPA – water is an integral component of the hydraulic fracturing process and the USEPA Office of Water regulates waste disposal of flowback and sometimes the injection of fracturing fluids as authorized by the Safe Drinking Water Act and Clean Water Act.

The USEPA’s central authority to protect drinking water is drawn from the federal Safe Drinking Water Act (SDWA).

The protection of underground sources of drinking water (USDWs) is focused in the EPS’s Underground Injection Control (UIC) program, which regulates the subsurface emplacement of fluid.

However, the UIC authority (SDWA § 1421(d)) is altered by the Energy Policy Act of 2005:

“The term ‘underground injection’ –

(A) means the subsurface emplacement of fluids by well injection; and
(B) excludes –
(i) the underground injection of natural gas for purposes of storage; and
(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

While the SDWA specifically excludes hydraulic fracturing from UIC regulation under SDWA § 1421 (d)(1), the use of diesel fuel during hydraulic fracturing is still regulated by the UIC program.

Per the USEPA – Any service company that performs hydraulic fracturing using diesel fuel must receive prior authorization through the applicable UIC program.

Information on how the UIC regulations apply to hydraulic fracturing using diesel fuels is found in EPA’s draft Guidance issued 2012 for public comment. The UIC regulations can be found in Title 40 of the Code of Federal Regulations Parts 144-148.

Disposal of produced water flowback into surface waters of the United States is regulated by the National Pollutant Discharge Elimination System (NPDES) permit program. The Clean Water Act authorizes the NPDES program.

Lead Renovation, Repair and Painting Rule (US)

The USEPA’s Lead Renovation, Repair and Painting Rule (RRP Rule) requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities and pre-schools built before 1978 have their firm certified by EPA (or an EPA authorized state), use certified renovators who are trained by EPA-approved training providers and follow lead-safe work practices.

Further information is found here.

Carbon Pollution Standards proposed for Power Plants (US)

New Carbon Standards are proposed today for power stations in the US.

Here is the USEPA webpage with information.

Here is the US White House statement on the matter.

Federal Water Quality Standards Regulation (US)

A new rule is proposed by the USEPA to clarify the federal water standards (WQS) regulation at 40 CFR 131 that interprets part of the federal Clean Water Act (CWA).

Here is the USEPA webpage giving information on the consultation that ends December 3, 2013.

The proposed rule addresses the following WQS programme areas:
(1) the USEPA Administrator’s determinations that new or revised water quality standards are necessary,
(2) designated uses for water bodies,
(3) triennial reviews of state and tribal WQS (water quality standards),
(4) antidegradation provisions to protect water quality,
(5) variances to WQS, and
(6) compliance schedule authorizing provisions.

Here are the changes proposed.

Here is the USEPA fact sheet on the subject.

Clean Water Act “Definition of Waters of the United States” (US)

A new rule will clarify the waters to be regulated under the US Clean Water Act (CWA).

Here is the USEPA webpage with information and giving access to applicable documents, including the results of action in the US courts, and the current definition being referred to (40 CFR 230.3(s)).

Already in operation is draft guidance – see here for the USEPA summary of the 2011 draft guidance.

Here is the 2011 draft guidance itself.

Here is 40 CFR 230.3 (CWA definitions) on its own. The definition of “waters of the United States” – waters subject to the US federal Clean Water Act – is found at 40 CFR 230.3(s) on the next page at (s)).

The definition is also found at 40 CFR 122.2 here. Scroll down to waters of the United States or waters of the US.

Changes to Clean Water Act CAFOs (US Iowa)

The USA EPA has reached agreement with the Iowa Department of Natural Resources (IDNR) for it to make changes to Iowa’s Clean Water Act (CWA) permit and compliance program for concentrated animal feeding operations (CAFOs).

Included in this agreement are IDNR’s commitments to:

* carry out a comprehensive survey of all large CAFOs and medium animal feeding operations that currently don’t have CWA wastewater discharge permits and identify those that discharge to natural water and have failed to comply with the permit application or other Iowa requirements,

* inspect all permitted NPDES CAFOs within five years following an agreed upon inspection procedure,

* issue timely wastewater discharge permits to all CAFOs determined to discharge to local waterways.

Also, Iowa’s CAFO rules will be changed to align with the federal CWA.

Further information is found in the USEPA Press Release.

Fracking Bill (US California)

Senate Bill 4 (Sen. Fran Pavley) (US California) has passed the Senate and awaits Assembly floor vote (California legislature) (source: The Sacramento Bee).

Per The Sacramento Bee – this Bill if enacted would have energy companies inform communities of planned tracking projects, mandate greater disclosure on the chemicals to be used, and put in place a permitting system for tracking (triggering the type of environmental review associated with conventional oil & gas wells that currently require permits).

See here for The Sacrameto Bee update on developments, note the link to a parallel court action further down on the webpage.