New Chemical Safety and Security Requirements from EPA and DHS

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1 Issue No. 31 QENVIRONMENTAL QUARTERLY A Trinity Consultants Publication SUMMER 2017 EREGULATORY UPDATE 2 Update on Chemical Facility Anti-Terrorism Requirements 8 EHS Manager s Guide to Toxic Substance Control Act Reform 12 EPA Hazardous Air Pollutant Standards Risk and Technology Reviews: Tight Deadlines and (some) DC Circuit Guidance 16 Emission Factor Development For Mechanical Evaporators 18 Navigating NEPA for Major Industrial Operations COMPANY NEWS 11 Jamie White Elected Chairman of EHSAC TRAINING 24 Upcoming Training Courses: Fall/Winter 2017 New Chemical Safety and Security Requirements from EPA and DHS

2 Update on Chemical Facility Anti-Terrorism Requirements By TAYLOR WILSON, PE, Senior Consultant Kansas City, KS LINDEN TERPSTRA, Consultant Charlotte, NC CFATS Overview Originally implemented on April 9, 2007, the Chemical Facility Anti-Terrorism Standards (CFATS) program is the first regulatory program from the Department of Homeland Security (DHS) addressing security at high-risk chemical facilities. DHS evaluates security risk based on three main functions: > Consequence anticipated result of a successful attack on a facility > Vulnerability likelihood that an attack would be successful > Threat intent and capability of an adversary attacking the facility DHS implements the CFATS program through a risktiering methodology for subject facilities. The CFATS program consists of first requiring the facility to determine if it has chemicals of interest (COIs) at or above the regulatory thresholds (applicability determination). If subject, the facility is then required to prepare a Top- Screen Analysis (TSA) and potentially a Security Vulnerability Assessment (SVA) and Site Security Plan (SSP). DHS has an Expedited Approval Program to streamline SVAs and SSPs for lower-risk Tier 3 and 4 facilities and allows facilities to develop Alternative Security Programs (ASP) as long as they meet all the SSP requirements. Figure 1 depicts the steps in this process. 2 Environmental Quarterly Summer 2017

3 Figure 1. CFATS Applicability and Compliance Process Step 1 Applicability Determination Review chemical against DHS COI List (Appendix A of 6 CFR 27) Does the chemical meet or exceed the threshold quantity? No STOP CFR 627 does not apply. Repeat Step1 for any additional chemicals. Acronyms Yes AI: Authorization Inspection ASP: Alternative Security Program CI: Compliance Inspection COI: Chemical of Interest CSAT: Chemical Security Assessment Tool DHS: Department of Homeland Security EAP: Expedited Approval Program RBPS: Risk-Based Performance Standards SSP: Site Security Plan SVA: Security Vulnerability Assessment TSA: Top- Screen Analysis Step 2 Top-Screen Analysis Register facility in the CSAT 2.0 System. Complete a TSA within 60 days of chemical onsite. DHS reviews TSA results and issues tier notifications. Was the facility determined to be high-risk (Tier 1-4)? No STOP No additional steps required. Repeat Step 1 for additional chemicals. Legend Facility Task End of Flow DHS Task Yes Step 3A Security Vulnerability Assessment / Site Security Plan Was the facility determined to be Tier 3-4? No Yes Does the facility prefer to follow the EAP? Does the facility prefer to implement an ASP? No Submit an SVA / SSP Survey within 120 days of tier notification. DHS reviews the SVA / SSP to confirm submittals meet the RBPS. No Yes Step 3B Expedited Approval Program Yes Notify DHS of the intention to submit under the EAP at least 30 days prior to submittal Submit an SVA / SSP Survey and Certification for Expedited Approval to DHS within 120 days of tier notification. DHS reviews the SVA / SSP to confirm submittals meet the RBPS. Step 3C Alternative Security Program Submit an SVA / ASP within 120 days of tier notification. DHS reviews the SVA / ASP to confirm submittals meet the RBPS and SSP minimum requirements. No Step 4 Approval and Inspections Were the submittals authorized? No DHS contacts facility to discuss how to remedy SVA / SSP deficiencies. Return to Step 3 after DHS feedback. DHS sends a Letter of Authorization, schedules an AI, then conducts AI to review SVA / SSP or ASP. Were the submittals approved? Yes DHS issues a Letter of Approval for the SSP or ASP Facility is placed in queue for CI STOP Implement SSP or ASP at facility. Monitor process changes and return to Step 1 as needed. Yes Chemicals of Interest DHS maintains a list of COIs in Appendix A of 6 CFR 27 (Appendix A) (see Table 1 for common COIs). In developing this list, DHS s goal was to identify chemicals that present one or more of the following security issues at chemical facilities: > Release categories Toxics: Chemicals with the potential to create a toxic cloud that would affect populations within and beyond the facility, if intentionally released Flammables: Chemicals with the potential to create a vapor cloud explosion that would affect populations within and beyond the facility, if intentionally released Explosives: Chemicals with the potential to affect populations within and beyond the facility if intentionally detonated > Theft or Diversion categories Chemical Weapons & Precursors: Chemicals that could be stolen or diverted and used as chemical weapons or easily converted into chemical weapons Weapons of Mass Effect: Chemicals that could be stolen or diverted and used directly as weapons of mass effect Explosives/Improvised Explosive Device Precursors: Chemicals that could be stolen or diverted and used in explosives or improvised explosive devices > Sabotage/Contamination: Chemicals that, if mixed with other readily available materials, have the potential to create significant adverse consequences for human life or health DHS developed the list of COIs by reviewing other federal regulations, soliciting advice from other regulatory agencies and industry groups, and incorporating feedback from the public. Specifically, DHS used information from the resources below to prepare the COI list, including development of the Screening Summer 2017 Environmental Quarterly 3

4 Table 1. CFATS Common Chemicals of Interest Chemicals of Interest (COI) CAS Number Minimum Concentration (%) Screening Threshold Quantity (lbs) Security Issue Typical Industrial Applications Other Regulatory Implications Aluminum (Powder) ACG 100 Theft - EXP/IEDP Explosives; Mining; Electronics; Paints and Coatings DOT HM Regulations; EPA s TRI Reporting Anhydrous Ammonia ,000 Release - Toxic Energy and Utilities; Agriculture and Food; Refrigeration DOT HM Regulations; EPA s RMP; EPA s TRI Reporting; OSHA s PSM Ammonia (Conc. 20% or Greater) ,000 Release - Toxic Energy and Utilities; Agriculture and Food; Refrigeration EPA s RMP; EPA s TRI Reporting; OSHA s PSM Ammonium Nitrate EXP: ACG (Release & Theft) AG: (Theft) EXP: 5,000 (Release), 400 (Theft) AG: 2,000 (Theft) EXP: Release - Explosives, Theft - EXP/IEDP Agriculture and Food; Explosives EPA s RMP; EPA s TRI Reporting; OSHA s PSM Butane ,000 Chlorine (Release) 9.77 (Theft) 2,500 (Release) 500 (Theft) Ethane ,000 Ethylene ,000 Hydrochloric Acid Release - Flammable Release - Toxic Theft - WME Release - Flammable Release - Flammable ,000 Release - Toxic Hydrogen ,000 Isobutane ,000 Nitric Acid (Release) (Theft) 15,000 (Release) 400 (Theft) Propylene ,000 Propane ,000 Release - Flammable Release - Flammable Release - Toxic Theft - EXP/IEDP Release - Flammable Release - Flammable Energy and Utilities; Plastics; Healthcare Agriculture and Food; Plastics; Healthcare Energy and Utilities; Agriculture and Food Energy and Utilities; Agriculture and Food; Paints and Coatings; Plastics Energy and Utilities; Agriculture and Food; Plastics Agriculture and Food; Electronics; Plastics Energy and Utilities; Agriculture and Food; Refrigeration Agriculture and Food; Explosives; Electronics; Healthcare Energy and Utilities; Agriculture and Food; Plastics Chemical Manufacturing, Storage, and Distribution; Energy and Utilities EPA s RMP; EPA s TRI Reporting; OSHA s PSM DOT HM Regulations EPA s RMP; OSHA s PSM DOT HM Regulations; EPA s RMP; EPA s TRI Reporting; OSHA s PSM EPA s RMP; OSHA s PSM EPA s RMP; OSHA s PSM; EPA s TRI Reporting EPA s RMP; OSHA s PSM; EPA s TRI Reporting EPA s RMP; OSHA s PSM EPA s RMP; OSHA s PSM DOT HM Regulations; EPA s RMP; OSHA s PSM; EPA s TRI Reporting Source: 6 CFR 27, Appendix A Threshold Quantities (STQs). The STQs define the facility-wide COI poundage amount that a facility can possess before becoming subject to CFATS (i.e., if a facility possess a COI at or above its STQ, then the facility must proceed with submitting a TSA to DHS, so that DHS can formally evaluate the facility s security risk). > Release categories Toxics: EPA s Risk Management Plan (RMP) rule (40 CFR , Tables 1 & 2) Flammables: EPA s RMP rule (40 CFR Tables 3 & 4) Explosives: v DOT s hazardous material regulations Division 1.1 explosives v EPA s original listing rule for RMP > Theft or Diversion categories Chemical Weapons & Precursors: Department of Commerce s Chemical Weapons Convention Weapons of Mass Effect: DOT s hazardous material regulations poisonous by inhalation gases Explosives/Improvised Explosive Device Precursors: v DOT s hazardous material regulations Division 1.1 explosives v National Research Council s recommendations for IEDs v FBI Explosive Unit s recommendations for IEDs > Sabotage/Contamination: DOT s 2004 Emergency Response Guidebook Water-Reactive Materials Which Produce Toxic Gases The COI list and associated STQs are similar, but not identical, to the above-referenced regulations. For example, the Release-Toxics category includes all of EPA s toxic substances identified under Tables 1 and 2 of the RMP rule (40 CFR ), except for three chemicals 1. DHS also adopted the RMP rule s Threshold Quantities for the Release-Toxics and Release-Flammables STQs with some exceptions (particularly for flammable substances). 4 Environmental Quarterly Summer 2017

5 Applicability Determinations Completing the CFATS applicability determination is a critical first step for CFATS compliance. The applicability determination can be summarized in six steps. 1. Determine if the facility has any Appendix A COIs onsite. 2. Determine if any exemptions in 6 CFR (b) or apply. 3. Determine if the COIs exceed the minimum concentrations specified in Appendix A. 4. Calculate the maximum amount of COIs that the facility possesses. 5. Compare the maximum amount of COIs that the facility possesses to Appendix A STQs. 6. If at or above the STQ, complete a TSA using DHS s CSAT reporting tool (proceed to Step 2 in the CFATS Applicability and Compliance Process flowchart). Understanding the origin of the COI list can be critical for making an accurate applicability determination. The COI list in Appendix A includes associated Chemical Abstract Service (CAS) numbers and common synonyms to help facilities identify whether they possess COIs at their site. Note that some COI names were replicated from the associated regulation that DHS reviewed to develop the COI list. For example, ammonium nitrate, [with more than 0.2 percent combustible substances, including any organic substance calculated as carbon, to the exclusion of any other added substance] was adopted from the Department of Transportation s (DOT s) hazardous material regulations and is intended to cover ammonium nitrate (AN) as a Division 1.1 explosive as defined by DOT. An initial review of the explosive Ammonium Nitrate Fuel Oil (ANFO) would suggest that this chemical meets the AN description specified in Appendix A. However, because ANFO is not a DOT Division 1.1 explosive, it is therefore not subject to the CFATS program 2. DHS exempts certain facility types [6 CFR (b)] and COI uses [6 CFR (a), 203(b)(2), and 203(b)(3)] from CFATS applicability. The most common exemptions include the following: > Chemicals in naturally occurring hydrocarbon mixtures prior to entry of the mixture into a natural gas processing plant or a petroleum refining process unit (naturally occurring hydrocarbon mixtures include condensate, crude oil, field gas, and produced water as defined in 40 CFR 68.3). > Chemicals in solid waste (including hazardous waste) regulated under the Resource Conservation and Recovery Act (RCRA), except for the waste described in 40 CFR (P- & U-listed wastes) > Release chemicals stored in transportation containers that are incident to transportation (i.e., containers connected to the motive power) > Laboratories under the supervision of a technically qualified individual per 40 CFR > Propane tanks that hold 10,000 lbs or less (~2,350 gallons) Further, DHS defines minimum concentrations for each COI based on the chemical s security issue(s) [40 CFR ]. If a facility possesses a COI below the minimum concentration, it is not required to count that COI towards the STQ thresholds. For COIs at or above the minimum concentration, the CFATS regulation includes explicit requirements on how to count the amount of a COI in a mixture towards the STQ based on the associated security issue. For example, if a Release-Flammable COI is present in a mixture above the minimum concentration (1%) and the mixture has a National Fire Protection Association (NFPA) flammability hazard rating of 4, then the entire amount of the mixture must be counted toward the STQ. This is based on the view that the entire mixture is a flammability concern (EPA uses a similar approach and reasoning under the RMP rule). This approach inherently created an inconsistency in the regulation with respect to propane, which had been given special consideration in the CFATS regulation in an effort to exclude non-industrial users of propane (particularly farmers and restaurants). For propane, the rule established a 60,000-lb STQ, rather than the 10,000-lb STQ baseline for flammable substances. Under the original version of the rule, a TSA could have been required for mixtures that were primarily propane, due to the lower STQ for other components of the mixture. Because this was not the intent of the rule, DHS later issued a clarification 3 specifying that the Release Flammables mixture rule applies only to mixtures containing less than 87.5% propane and that mixtures with 87.5% or more propane are subject only to the 60,000-lb STQ threshold 4. 1 The three excluded chemicals are toluene 2,4-diisocyanate, toluene 2,6-diisocyanate, and toluene diisocyanate (unspecified isomer). 2 CFATS Knowledge Center, Frequently Asked Question No (May 22, 2009) FR (March 21, 2008). 4 The 87.5% concentration was determined by reviewing typical Safety Data Sheets (SDS) for propane products, including the model SDS from the National Propane Gas Association (NPGA). Summer 2017 Environmental Quarterly 5

6 CFATS Applicability Determination Example A facility possesses an 11,000-lb mixture of 95% propane and 5% butane. The mixture has an NFPA rating of 4. Propane has a STQ of 60,000 lbs and a minimum concentration of 1%; butane has a STQ of 10,000 lbs and a minimum concentration of 1%. Would the facility be required to submit a Top-Screen Analysis for propane and/or butane? Since the mixture contains Release-Flammables above their minimum concentrations and has an NFPA rating of 4, the entire mixture must be compared to the STQ thresholds per 6 CFR (a)(2). The 11,000-lb mixture is below the 60,000-lb STQ for propane, but above the 10,000-lb STQ for butane; therefore, without DHS clarification, the facility would have seemingly been required to submit a TSA for butane even though the mixture was primarily propane. The clarification specified that the Release Flammables mixture rule applies only to mixtures containing less than 87.5% propane and that mixtures with 87.5% or more propane are subject only to the 60,000-lb STQ threshold; therefore, this mixture would not require a TSA submittal for either propane or butane. After determining that a facility possesses a COI at or above its STQ, the facility must submit a TSA to DHS using the Chemical Security Assessment Tool (CSAT). Note that the facility must aggregate the total amount of COI that it possesses at its facility, including COI that may exist in separate processes (unlike EPA s RMP Rule, which requires facilities to consider the total quantity contained in a process ). CSAT 2.0 TSA, SVA, and SSP Submittals As previously discussed, after a TSA has been submitted, DHS evaluates if the facility would be considered high risk based on a tier rating system (e.g., Tier 1, 2, 3, or 4). Facilities determined to be high risk are assigned a tier and required to submit an SVA and SSP (or follow an Expedited Approval Program for lower-risk Tier 3 and 4 facilities). TSAs as well as SVAs and SSPs are submitted to DHS using the agency s CSAT, version 2.0. DHS released CSAT 2.0 and a new tiering methodology on September 30, 2016, after reevaluating the risk-tiering methodology; updating the TSA, SVA, and SSP questionnaires accordingly; and changing the CSAT user interface to accommodate the program changes. Along with CSAT 2.0, DHS also changed the SVA and SSP submittal requirements (now to be submitted jointly within 120 days of tier notification). DHS recently updated the tiering methodology in coordination with industry and government partners via the Critical Infrastructure Partnership Advisory Council. The enhanced methodology was reviewed by the Homeland Security Studies and Analysis Institute and independently verified and validated by Sandia National Laboratories. Although most of the tiering methodology is sensitive and/or classified, DHS shared several factors it considers when evaluating a facility s vulnerability, consequence, and threat based on information submitted in the facility s TSA 5. The relevant factors in each area of consideration are outlined below. > Vulnerability factors Pressure rating of a storage container Storage location Underground earth location COI container size and portability Facility shipment of COI > Consequence factors Topography surrounding facility (urban or rural terrain) Potentially exposed population surrounding facility COI information v Toxicity v Flammability v Explosive energy v Quantity and concentration v Storage: container location, temperature and pressure rating, types of packaging v Secondary containment area v Precursor characteristics: toxicity / explosive energy Mode of shipping > Threat factors Topography surrounding facility (urban or rural terrain) Specific chemical of interest Quantity stolen or diverted (non-bulk only) Mode of shipment On October 4, 2016, DHS began sending notices to approximately 27,000 facilities to submit a new TSA using CSAT 2.0. As of May 2017, DHS had received approximately 12,000 updated TSAs from the 27,000 facilities that previously held COIs at or above their respective STQs. Based on an initial analysis of the 12,000 TSAs submitted, DHS anticipates 39% of the tiered population to remain within the same risk tier, and 51% of the tiered population to change risk tier 6. The remaining 10% of the 6 Environmental Quarterly Summer 2017

7 population is expected to either become untiered (i.e., not regulated) or become newly tiered (i.e., regulated for the first time). On April 4, 2017, DHS began issuing tiering letters to facilities based on the enhanced methodology and plans to continue to notify facilities of the requirement to submit new TSAs and issue tiering decisions on a rolling basis. Changing risk tier may trigger new security requirements and potentially DHS Authorization and Compliance Inspections. For guidance or questions regarding CFATS, please contact Mr. Jose Orsini at (407) or jorsini@trinityconsultants.com, or Mr. Taylor Wilson at (913) or twilson@trinityconsultants.com. v 5 Chemical Facility Anti-Terrorism Standards: Tiering Methodology, Department of Homeland Security (April 2017). 6 Chemical Facility Anti-Terrorism Standards (CFATS) Tiering Results Update, Department of Homeland Security (April 24, 2017). Learn More! Access our recent webinar ondemand. Chemical Facility Anti-Terrorism Standards (CFATS) - Applicability and Requiremenrs Topics include: > CFATS applicability determinations > Top-Screen Analyses, Security Vulnerability Assessments, and Site Security Plans > Continuous compliance Jamie White Elected Chairman of EHSAC Jamie White, Managing Consultant in Trinity s EHS Performance and Risk Management Business Line, has been elected Chairman of the Institute of Internal Auditors EHS Audit Center (EHSAC) Advisory Board, effective July 1. Ms. White has served on the Board since the Center s inception in March Prior to that, Ms. White served as the Vice President of the Auditing Roundtable, preceding its merger with the IIA to form the Center. The Center is committed to advancing the professional practice of auditing in the environmental, health and safety field and holds two national conferences per year. White says she is highly anticipating the EHS Exchange on September 11-12th in St. Louis, We have secured a safety investigator who participated in the Deepwater Horizon/Macondo incident investigation as one of our keynote speakers and I could not be more excited to hear his experience about an incident that reshaped how the offshore oil and gas industry manages safety. Access the webinar at trinityconsultants.com/training/webinars/on-demand Summer 2017 Environmental Quarterly 7

8 EHS Manager s Guide to Toxic Substance Control Act Reform By ELLEN HEWITT, Managing Consultant Columbus, OH On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), also referred to as Toxic Substance Control Act (TSCA) Reform. The Lautenberg Act required the U.S. Environmental Protection Agency (EPA) to amend the TSCA regulation with the overall goal of improving the nation s management of chemicals manufactured in or imported into the United States. The bill received bipartisan support in both the U.S. House of Representatives and the Senate. Additionally, several chemical manufacturers and industry groups supported the bill in order to improve the consistency of chemical safety regulation nationwide. TSCA in a Nutshell TSCA was enacted in 1976, providing EPA with the authority to require reporting, testing, and recordkeeping for chemicals manufactured domestically or imported. TSCA also allows EPA to restrict certain substances that may present a substantial risk of injury to health or the environment. TSCA requires facilities that intend to manufacture (or import) new chemicals to submit pre-manufacture notifications (PMNs). The majority of compounds undergoing PMN review are approved for manufacturing or importation and the compound (or its trade name if it is confidential) is listed on the TSCA Inventory. Compounds on the public TSCA Inventory can be manufactured or imported without additional approvals from EPA. In cases where EPA determines that a new (or in some cases a previously approved) chemical may pose unreasonable risk to health or environment and should be used only under specific conditions, EPA may issue a Significant New Use Rule (SNUR). Similarly for compounds that have been authorized under a SNUR, if a manufacturer intends to use a chemical in a new way, they may be required to submit a Significant New Use Notice (SNUN). TSCA also requires employers to notify EPA of situations where they have evidence of a new health effect of a compound not previously known through the Substantial Risk Recordkeeping and Notification requirements (section 8(c) and (e)). Many EHS professionals are familiar with TSCA through the Chemical Data Reporting (CDR) program that requires chemical manufacturers and importers to submit manufacturing information to EPA every four years. The 2016 TSCA CDR report was required to be submitted through EPA s Central Data Exchange (CDX) website. CDR reporting provides EPA and the public with basic exposure-related information on the types, amounts, and uses of chemical substances manufactured or imported in large quantities in the U.S. Call for Reform There has been wide agreement that TSCA was in need of updating. Due to gaps in the regulation, some state governments (California, most notably) have acted independently to further regulate toxic chemicals. These state-specific chemical regulations make it difficult for manufacturers to sell the same formulations from state to state and create an additional burden for notification of health effects on SDSs and other documents. As a result, the chemical industry was supportive of updating the regulations as long as the updates improved consistency nationwide. Due to the change in administration and a reduction in EPA s budget, some have questioned whether the TSCA rulemakings would move forward. However, as outlined in a recent BNA article, EPA Administrator Scott Pruitt has indicated that implementing the amended TSCA is a priority and it will continue to move forward. 8 Environmental Quarterly Summer 2017

9 Key Elements of the Lautenberg Act The Lautenberg Act required several changes to the TSCA regulation. Some of the more notable new provisions are summarized below. > EPA must evaluate new and existing chemicals to determine whether they present an unreasonable risk of injury to health or the environment under the conditions of use. Listed below are the first 10 chemicals EPA will evaluate for potential risks to human health and the environment under TSCA reform. (Details on EPA s recent actions associated with these chemicals are available on EPA s website.) Asbestos 1-Bromopropane Carbon tetrachloride 1,4-Dioxane Cyclic aliphatic bromide cluster Methylene chloride N-methylpyrrolidone Tetrachloroethylene, also known as perchloroethylene Pigment violet 29 Trichloroethylene > EPA must make an affirmative finding for each PMN submittal within 90 days, and this finding must be complete before a chemical can enter commerce. Whereas the previous version of the regulation allowed manufacturers to move forward after the 90-day period, they must now receive EPA approval. > EPA is required to develop a list of active and inactive chemicals. The Act indicates that 10 years worth of data should be collected in order to develop these lists. On June 22, 2017, EPA released the pre-publication final rule outlining the procedures for facilities to gather and submit this data. The final rule was published in the Federal Register on August 11, Summer 2017 Environmental Quarterly 9

10 > EPA must consider potentially exposed or susceptible subpopulations when evaluating chemicals whereas prior PMN health evaluations focused on worker exposures. > Cost and other non-risk factors are not to be considered when evaluating chemicals. > Companies may request that EPA evaluate existing chemicals. > State chemical regulations are preempted under certain conditions. States may not impose new restrictions on a chemical found by EPA not to present an unreasonable risk or that has been regulated by a Section 6 rule. > The least burdensome requirement has been eliminated when evaluating proposed restrictions on chemicals. The prior version of the law required EPA to evaluate every potential way of restricting a chemical and apply the least burdensome option. Now, EPA must evaluate the impact of the proposed restrictions on the economy; however, these cost analyses are only to guide EPA when choosing among a limited number of options, each of which must ensure that the chemical is safe for the identified populations. EPA is no longer required to evaluate every conceivable restriction to find the least burdensome option. > Limitations have been imposed regarding confidential business information (CBI). EPA published updates to the CBI rules requiring that up-front substantiation be provided for each CBI claim, effective March 20, For submissions filed after that date, substantiation must be submitted with the CBI claim. Companies have until September 18, 2017, to submit substantiation for TSCA submissions filed between June 22, 2016, and March 20, Information will not be treated as confidential and will be made public if substantiation is not provided. > EPA is authorized to charge higher fees for chemical reviews, but there is no timeline for adoption of higher fees. Recent TSCA Reform Activity While certain elements of the reform, such as EPA providing affirmative determination for PMNs, took effect immediately, other elements of the Lautenberg Act set a deadline for future EPA regulations. The Act required that, within one year, EPA must develop rules outlining the procedures by which the agency will 1) determine which chemicals have actively been in commerce over the last 10 years; 2) select chemicals as high or low priority for risk evaluation; and 3) evaluate the risks of highpriority chemicals. Meeting this timeline, on June 22, 2017, Administrator Pruitt signed the following three final rules: 1. TSCA Inventory Notification (Active-Inactive) Requirements (40 CFR Part 710) Published in the Federal Register on August 11, Chemical Prioritization Process rule (40 CFR Part 702) Published in the Federal Register on July 20, Risk Evaluations for Existing Chemicals under TSCA (40 CFR Part 702) published in the Federal Register on July 20, 2017 Overview of TSCA Inventory Reset Rule The TSCA Inventory Notification (Active-Inactive) Requirements Rule was published in the Federal Register on August 11, Manufacturers have 180 days from this date to submit a list of chemicals manufactured or imported for commercial purposes between June 21, 2006, and June 21, 2016 (the lookback period ). Therefore, the submission period for manufactures began on August 11, 2017 and ends on February 7, Each of the properly identified substances will be designated active ; substances not reported but on the TSCA list will be inactive. Reporting requirements apply only to TSCA Inventory-listed substances. Processors may also report to EPA within 420 days after (October 5, 2018) the rule is published in the Federal Register. Although processor reporting is optional, it is encouraged to ensure that all of the processor s chemicals are listed as active. Processor reporting also protects the processor from the inadvertent inactivation of one of their raw materials in the event that one of their suppliers that manufacture or import a chemical did not properly report it. Companies do not need to report chemicals that are on the Interim List of Active Substances as those chemicals were previously reported in the 2012 and 2016 CDR submittals and will already be given active status. Additionally, there are several exemptions listed in the final rule that generally mirror exemptions from PMN rule exemptions (except that reporting will be required for export-only substances). Reporting is not required for pesticides, food, drugs, cosmetics, medical devices, R&D materials, impurities, byproducts that are disposed of (and not used), and some naturally occurring substances. Substances 10 Environmental Quarterly Summer 2017

11 added to the TSCA Inventory on or after June 22, 2016, will be automatically designated as active and need not be reported. Unlike the CDR rule, which had a minimum reporting threshold of 25,000 lbs (for most chemicals), there is no minimum reporting threshold for the retrospective reporting. Therefore, no matter how small the quantity of chemical manufactured or imported and placed into commerce, it may be subject to reporting. In addition to the retrospective reporting requirements for the lookback period, the rule provides forward-looking reporting requirements for substances that are identified as inactive after the retrospective reporting has closed. The forward-looking reporting period begins on the effective date of EPA s active/ inactive substance designations. Manufacturers and processors that intend to reintroduce into commerce an inactive chemical for nonexempt purposes must submit a report not more than 90 days before the anticipated manufacture or processing of the chemical. The rule provides two versions of a Notice of Activity (NOA) reporting form for submitting information required by the rule: NOA Form A will be used for retrospective reporting, and NOA Form B will be used for forward-looking reporting. For retrospective reporting, companies must report chemical identity, type of commercial activity (i.e., manufacture vs. import), and whether the reporter seeks to maintain an existing CBI claim for a confidential chemical identity. For forward-looking reporting, companies must submit the anticipated date by which the inactive substance is to be domestically manufactured, imported, or processed. Similar to CDR, these forms will be submitted via EPA s Central Data Exchange (CDX) website. Conclusion It is clear that EPA intends to move forward on TSCA Reform efforts. Chemical manufacturers and processors should stay up to date with new regulations and guidance documents as they are released. Additionally, the anticipated retrospective reporting may be a significant undertaking and facilities should begin to evaluate how they will gather the necessary data for the 10-year lookback period. Trinity is monitoring TSCA Reform rulemaking and will continue to work with our clients to ensure compliance with these changes. If you have any questions, please contact your local office at (800) or Ellen Hewitt at (614) v Learn More - Upcoming Webinar! TSCA Reform and the Inventory Reset Rule Sept 28, :30-2:00 PM EDT Topics include: > Overview of the Lautenberg Act and recent rulemaking > TSCA Inventory Reset Rule > TSCA confidential requirements Register online at trinityconsultants.com/training/webinars EPA s Current PMN Statistics As mentioned, EPA must now provide an affirmative determination on PMNs in progress and submitted after June 22, When the Lautenberg Act was signed in June 2016, EPA had 334 chemical cases under review for which the 90-day review period began again. As a result, EPA s backlog of PMNs doubled from the typical level of approximately 300 open cases to more than 600 open cases in January As of July 5, 2017, the backlog was closer to 400 cases. Administrator Pruitt has commented on this issue, indicating that EPA is making strides to improve the process. EPA has provided a webpage to track its progress on reducing this backlog. Summer 2017 Environmental Quarterly 11

12 EPA Hazardous Air Pollutant Standards Risk And Technology Reviews: Tight Deadlines and (Some) DC Circuit Guidance By LISA JAEGER, JD, Senior Counsel BRITTANY PEMBERTON, JD, Associate SARAH RAFIE, JD, Associate Bracewell, Washington, DC The U.S. Environmental Protection Agency (EPA) faces a mile-high backlog of Clean Air Act (CAA) Risk and Technology Reviews (RTRs) to complete, and quickly. RTRs are the checks EPA must conduct every eight years for every National Emission Standard for Hazardous Air Pollutants (NESHAP) 1 it sets, to be sure that the standards are adjusted if necessary to address any residual risk and any developments in emission reduction techniques. Through easy victories in deadline lawsuits, environmental non-governmental organizations (ENGOs) have gotten EPA on aggressive court-ordered deadlines for completing the RTRs. Based on EPA s website and a review of known pending deadline suits, we estimate that 40 RTRs are completed and six are in process. Table 1 summarizes our projection of EPA s schedule for proposing and finalizing RTRs. Table 1. Schedule for EPA Risk Technology Reviews on Court-ordered Deadlines Deadline to Propose RTR per Court Order or Pending ENGO / EPA Request /15/17 Portland Cement Manufacturing 2018 ENGO: 5 of 9 RTRs, 8 months from court order Deadline to Finalize RTR per Court Order or Pending ENGO / EPA Request 10/01/17 Pulp and Paper Combustion Sources 10/01/17 Nutritional Yeast 10/16/17 Publicly Owned Treatment Works 7/15/18 Portland Cement Manufacturing 12/31/18 7 of 13 RTRs ENGO: 5 of 9 RTRs, 1 year from court order 2019 ENGO: 4 of 9 RTRs, 20 months from court order 2 ENGO: 4 of 9 RTRs, 2 years from court order /13/20 20 RTRs 3 6/30/20 6 of 13 RTRs EPA: 9 RTRs Total: 37 RTRs by June 2020 per court order 9 RTRs by either 2018/2019 (ENGO) or 2024 (EPA) 46 RTRs Total Note: There are additional RTRs in process that are not necessarily subject to court-ordered deadlines. 1 NESHAPs are also commonly referred to as MACT (maximum achievable control technology) standards. 12 Environmental Quarterly Summer 2017

13 In addition to RTRs yet to be done, EPA faces a backlog of work on final RTRs that are being challenged in petitions for administrative reconsideration and in the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit). At least nine cases challenging final RTRs are pending and in abeyance as EPA tries administratively to resolve issues in each case. 5 Once they are squarely before the Court, judicial opinions in these cases will provide additional guidance and set expectations for future RTRs. For now, EPA s interpretation of the statute is guided by only three DC Circuit opinions in challenges to RTR rules: the Hazardous Organic NESHAP (HON) RTR (NRDC v. EPA, 2008); the NESHAP from Secondary Lead Smelting (Secondary Lead) RTR (ABR v. EPA, 2013); and the Chromium RTR (NASF v. EPA, 2015). 6 The task of conducting an RTR as set out by Congress in the Clean Air Act is deceptively simple. For the one-time 112(f)(2) risk review, within eight years of issuing an emission standard under 112(d) EPA must re-issue standards if they are required (1) to protect public health with an ample margin of safety or (2) to prevent an adverse environmental effect, considering costs, energy, safety and other relevant factors. For the 112(d)(6) technology review (recurring every eight years), EPA must revise standards as necessary, considering developments in practices, processes, and control technologies. Yet, as with any element of the Clean Air Act, every statutory term presents differences of interpretation among regulated parties, ENGOs, states, and EPA that will be resolved only through litigation. Guidance From RTR Cases as of July 2017 Discussed below are lessons from the three RTR cases to date, which demonstrate overall deference to EPA by the DC Circuit. 1. The statute does not require EPA to recalculate the MACT floor, and thereby does permit EPA to consider cost when revising the standards under 112(d)(6). Not everyone, however, considers this settled law. ENGOs have argued in each RTR case that when EPA conducts a technology review under 112(d)(6), the revised (or unrevised) standards are promulgated under 112(d), and EPA 2 Community In-Power and Development Assoc. v. EPA, No (D.D.C.). The 9 RTRs are Mercury Emissions from Mercury Cell Chlor-Alkali Plants, IIIII; Semiconductor Manufacturing, BBBBB; Generic MACT II Cyanide Chemicals, YY; Generic MACT II Spandex Production, YY; Generic MACT II Carbon Black Production, YY; Primary Copper Smelting, QQQ; Flexible Polyurethane Foam Fabrication Operations, MMMMM; Refractory Products Manufacturing, SSSSS; and Primary Magnesium Refining, TTTTT. 3 California Communities Against Toxics v. EPA, No (March 13, 2017 D.D.C.). The 20 RTRs are Solvent Extraction for Vegetable Oil Production, GGGG; Boat Manufacturing, VVVV; Surface Coating of Metal Coil, SSSS; Cellulose Products Manufacturing, UUUU; Generic MACT II - Ethylene Production, YY, XX, UU; Paper and Other Web Coating, JJJJ; Municipal Solid Waste Landfills, AAAA; Hydrochloric Acid Production, NNNNN; Reinforced Plastic Composites Production, WWWW; Asphalt Processing and Asphalt Roofing Manufacturing, LLLLL; Integrated Iron & Steel Manufacturing, FFFFF; Engine Test Cells/ Stands, PPPPP; Site Remediation, GGGGG; Miscellaneous Organic Chemical Manufacturing, FFFF; Surface Coating of Metal Cans, KKKK; Surface Coating of Miscellaneous Metal Parts and Products, MMMM; Organic Liquids Distribution (Non-Gasoline), EEEE; Stationary Combustion Turbines, YYYY; Surface Coating of Plastic Parts and Products, PPPP; and Surface Coating of Automobiles and Light-Duty Trucks, IIII. 4 Blue Ridge Environmental Defense League v. EPA, No (D.D.C.). The 13 RTRs are Leather Finishing Operations, TTTT; Wet-Formed Fiberglass Mat Production, HHHH; Rubber Tire Manufacturing, XXXX; Surface Coating of Large Appliances, NNNN; Friction Materials Manufacturing Facilities, QQQQQ; Surface Coating of Metal Furniture, RRRR; Surface Coating of Wood Building Products, QQQQ; Printing, Coating, and Dyeing of Fabrics and Other Textiles, OOOO; Taconite Iron Ore Processing, RRRRR; Miscellaneous Coating Manufacturing, HHHHH; Lime Manufacturing Plants, AAAAA; Iron and Steel Foundries, EEEEE; and Plywood and Composite Wood Products, DDDD. 5 American Petroleum Institute (API) v. EPA, No (DC Cir.) (Oil and Natural Gas sector) (abeyance until August 18, 2017); American Chemistry Council (ACC) v. EPA, No (DC Cir.) (Group IV Polymers and Resins; Pesticide Active Ingredient Production; Polyether Polyols Production) (abeyance pending administrative reconsideration); Georgia-Pacific LLC v. EPA, No (DC Cir.) (Generic MACT Standards; Manufacture of Amino/Phenolic Resins RTR) (abeyance pending administrative reconsideration); ACC v. EPA, No (DC Cir.) (Off-Site Waste and Recovery Operations (OSWRO) RTR) (abeyance pending fulfillment of settlement requirements; if given enough information by petitioner, EPA must issue a proposed rule on pressure relief devices July 20, 2017 and a final rule January 18, 2018); Eramet Marietta Inc. v. EPA, No (DC Cir.) (Ferroalloys Production RTR) (petitions for administrative reconsideration filed; parties discussing administrative options for resolving remaining claims); The Fertilizer Institute v. EPA, No (DC Cir.) (Phosphoric Acid Manufacturing and Phosphate Fertilizer Production RTR) (abeyance pending administrative reconsideration); Kaiser Alum. Fabricated v. EPA, No (DC Cir.) (Secondary Aluminum RTR) (stayed for mediation); American Fuel and Petrochemical Manufacturers (AFPM) v. EPA, No (DC Cir.) (Petroleum Refinery Sector RTR) (abeyance pending administrative reconsideration); Aero MACT Group v. EPA, (DC Cir.) (Aerospace Manufacturing and Rework Facilities RTR) (abeyance pending administrative reconsideration). 6 Nat l Resources Defense Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (DC Cir. 2008) (HON RTR) (standards not revised by RTR; statute cannot be construed reasonably as requiring EPA to recalculate the floor); Assoc. of Battery Recyclers, Inc. (ABR) v. EPA, 716 F.3d 667 (DC Cir. 2013) (Secondary Lead RTR) (standards revised based on 112(d)(6) technology review); Nat l Assoc. for Surface Finishing (NASF) v. EPA, 795 F.3d 1 (DC Cir. 2015) (Chromium MACT) (standards revised based on 112(d)(6) technology and 112(f)(2) risk reviews). Summer 2017 Environmental Quarterly 13

14 include improved facility performance, even where no new technology is identified. In the Chromium RTR, for example, EPA tightened the standards not on the basis of new technology but on the basis of data showing some facilities were achieving lower HAP emissions. Industry argued that the emission reductions were simply due to the application of the controls that were installed to meet the initial MACT standards. The Court validated EPA s approach of justifying tighter standards based on the collective impact of all improvements, stating that EPA need not show a nexus between each development and revisions to the standards. 9 must re-calculate the MACT floor. ENGOs have also made the corresponding argument that EPA cannot consider the cost to industry of meeting the standards, because cost cannot be considered in setting MACT floors. Each time, the Court has disagreed and upheld EPA s initial interpretation of 112(d)(6) that the statute does not require EPA to start from scratch and newly calculate the floor without considering costs, even where EPA has identified new practices or technology and revised the standards. 7 In the most recent RTR case, ENGOs renewed their argument that EPA must reset floors. They also requested the extraordinary measure of review by the full Court on that issue, arguing that the Court had never addressed that particular statutory argument. Although the Court denied that request, Judge Pillard, writing for the Court, did hint in a footnote that if EPA had initially interpreted 112(d)(6) to require a new floor calculation, the Court may have found that interpretation valid. 8 Thus, for now, the law does not require resetting floors when EPA revises standards in a 112(d)(6) technology review, but ENGOs will likely continue to pursue reversal of the precedent. 2. What constitutes a development in practices, processes, or technology sufficient to support EPA s necessary change to the standards under 112(d)(6) need not be much; however, by the same token, the mere identification of technological improvements does not compel EPA to change the standards. Where EPA concludes that developments in practices or technologies warrant revised, tighter standards, developments may On the other hand, even where technological improvements are identified, EPA can demonstrate that they do not necessitate revisions to the standards. In the Secondary Lead RTR, EPA considered whether standards should be revised to reflect the adaptation of two technologies: high-efficiency particulate air filters and wet electrostatic precipitators. After considering cost, environmental benefit and adverse impacts, and other factors, EPA determined that the technologies were not appropriate and revisions to the standards were not needed. ENGOs challenged EPA s decision as arbitrary, but the Court found EPA s explanation and decision not to revise the standards reasonable Where EPA concludes in a 112(f)(2) review that an ample margin of safety to protect public health requires tighter standards, EPA s conclusion is not a threshold finding based only on public health. Rather, whether there is an ample margin of safety is a context-based determination and EPA may consider all of the statutory factors public health, cost, economic impact, technological feasibility and other relevant factors NRDC v. EPA, 529 F.3d 1077, 1084 (DC Cir. 2008) (HON RTR) (standards not revised by RTR; statute cannot be construed reasonably as requiring EPA to recalculate the floor); ABR v. EPA, 716 F.3d 667 (DC Cir. 2013) (Secondary Lead RTR) (standards tightened in RTR; EPA not obligated to recalculate floor, citing binding precedent of NRDC v. EPA); NASF v. EPA, 795 F.3d 1 (DC Cir. 2015) (Chromium RTR) (standards tightened by RTR; floor recalculation not compelled, citing EPA s original interpretation and binding precedent). 8 NASF v. EPA, 795 F.3d at n. 3 (DC Cir. 2015) (Chromium RTR). 9 NASF v. EPA, 795 F.3d at ABR v. EPA, 716 F.3d at NASF v. EPA, 795 F.3d at 16 (citing NRDC v. EPA). 14 Environmental Quarterly Summer 2017

15 Both the plain text of the statute and EPA s explanation of what 112(f)(2) requires have led to the understanding that EPA must make two distinct findings 12. First, EPA must find, based only on public health concerns, that a revision of the standards is necessary. And second, EPA must determine what the revisions should be, considering costs, energy, safety, and other relevant factors. However, courts considering the lawfulness of EPA s 112(f)(2) conclusions have not demanded this bifurcated approach. EPA had proposed in 2010 not to revise the standards in the Chromium RTR, finding that the existing standards amply protected public health; however, in a supplemental proposal and in the final rule in 2012, EPA reversed its finding and tightened the standards by 80%. Industry objected to EPA s changed position, because the record showed public health risks in 2012 were the same or lower than in The Court rejected industry s argument that EPA had skipped the first step in 112(f)(2) of determining that tighter standards were required to protect public health. The Court first pointed out record evidence that EPA understood it must revise standards where required to protect public health. Then the Court reasoned that what triggered EPA s obligation was the agency s further consideration and context-based determination that additional risk reductions can be achieved cost-effectively and in light of other statutorily relevant factors. 14 Here, the Court endorsed EPA s blurring the line between two apparently distinct analyses: 1) what is safe for public health, and 2) what emission reductions can be accomplished in light of cost, energy, safety, and other factors. The Court found support for this approach in the earlier HON RTR case NRDC v. EPA, which permitted EPA s analysis of ample margin of safety to include consideration of other factors including cost, economic impact, and feasibility. 15 These cases indicate that, for now, when analyzing the safety of public health under 112(f)(2), EPA can consider any relevant factors to support its decision to revise standards (Chromium RTR) or not to revise standards (HON RTR). 4. Where EPA relies jointly on technology 112(d)(6) and risk 112(f)(2) reviews as bases for revised standards, a party must successfully challenge both aspects of EPA s rationale to have the standards overturned. This point was made at oral argument in the Chromium RTR case, and was referenced by the Court in its opinion. 16 Because EPA invoked both 112(d)(6) and 112(f)(2) to support the revised standards, even if the Court had found fault with either the risk or the technology review, the revised standards would have been upheld. Given this, EPA is likely to build a risk/technology fortress around all forthcoming RTR rules by supporting them with rationales under both statutory provisions. Conclusion While at present there is scant judicial guidance on EPA s interpretation of the NESHAP 112(d)(6) technology and 112(f)(2) risk review provisions, what guidance there is heavily favors judicial deference to EPA. The DC Circuit has denied or dismissed for lack of standing all petitions in the three cases involving challenges to RTR rules. The Court has also issued opinions that give EPA a wide berth for determining whether revisions to the standards are required or necessary, defining what constitutes an ample margin of safety for public health and defining what constitute developments to justify decisions to revise or not revise standards. For now, the Court also appears to be solid on not requiring EPA to re-set floors and thereby on permitting EPA to consider cost in setting or re-issuing MACT standards in RTR rules. Future RTRs will likely be supported by joint technology and risk rationales, almost by invitation from the Court, which greatly enhances their defensibility. If this judicial inclination holds, EPA may be able to meet the grueling Court-ordered deadlines for completing the remaining RTRs. Yet, the DC Circuit could become more taxing on EPA in the next wave of RTR challenges now pending before the Court. If the Court begins to vacate or remand specific elements of forthcoming RTRs, EPA could be forced to take voluntary remands of other RTRs in the pipeline that include the elements vacated or questioned by the Court. If that happens, EPA could face a backlog of not only RTRs but also re-dos of RTRs and may need to seek extensions of deadlines. v 12 See e.g., National Emissions Standards for Hazardous Air Pollutants for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand- Alone Semichemical Pulp Mills, 81 FR at (Dec. 30, 2016) (proposed RTR rule). 13 NASF v. EPA, 795 F.3d at NASF v. EPA, 795 F.3d at NASF v. EPA, 795 F.3d at 16 (citing NRDC v. EPA at 1083). 16 NASF v. EPA, 795 F.3d at n. 8. Summer 2017 Environmental Quarterly 15

16 Emission Factor Development for Mechanical Evaporators By ANDREW GLEN, PhD, Senior Consultant/Ambient Monitoring Coordinator Albuquerque, NM Introduction Emission factors are the fundamental basis for the calculation and estimation of the air emissions generated by a source or an activity. Once established, the emission factors for a source are subsequently used to establish emission limits or operating conditions as part of a facility s construction and operating permits. The U.S. Environmental Protection Agency (EPA) has developed and published emission factors for various industries and sources. These emission factors are documented in the EPA publication Compilation of Air Pollutant Emission Factors (AP-42) 1 and also in the EPA Clearinghouse for Inventories and Emission Factors (CHIEF) 2. However, since the inception of AP-42, emission factors have generally not remained up-to-date with improvements and changes to emission source quantification technology. Stack testing methods provide supporting data for conventional stacks but are often limited when sampling conditions are not ideal or the source is not an enclosed stack. Theoretical calculations are sometimes possible for particular sources but often provide exceedingly conservative results as the specific situation is overly simplified. To improve the representation of these difficult-to-measure sources, customized ambient real-time measurements can be combined with modeling as a strategy to establish a more representative emission rate. Mechanical Evaporator Deployment Many states restrict the discharge of wastewater from a facility, whether this is zero discharge or a significant treatment of the effluent. Some facilities therefore adopt natural and mechanical evaporation techniques from evaporative ponds to reduce the volume of water onsite. The use of mechanical evaporators is increasing, particularly in the power generation industry as plants are dehydrating ash ponds in response to the Disposal of Coal Combustion Residuals (CCR) from Electric Utilities rule 3. Other industries also utilize mechanical evaporation to reduce wastewater volumes from cooling towers, produced water, and storm water runoff. Mechanical evaporators are typically located on the banks of, or floating on, an evaporative pond. The mechanical evaporator and pond system produce emissions of particulate matter (PM) as the pond water solution is drawn through the evaporator and is sprayed over the pond and allowed to evaporate and crystallize into solid particles. The characteristics of the resulting particles depend on the ambient conditions and the pond s total dissolved solids (TDS) concentration. Due to both the typical location of evaporators and the change in phase of the emissions from liquid solution droplets to solid PM, emissions from these sources can be difficult to quantify. Emission Rates from Theoretical Calculations Due to the large variety of industries that operate mechanical evaporators, accurate application-specific emission rates are not widely available. Basic calculations are heavily dependent on the pond s TDS concentration and have traditionally used emission factors for cooling towers such as those described in Section 13.4 of AP-42, or improved calculation methods discussed in Reisman and Frisbie 4 or Hosler et al 5. However, these methods 1 U.S. Environmental Protection Agency, Compilation of Air Pollutant Emission Factors (AP-42), Fifth Edition, January Source: 3 Source: 40 CFR 257 and 261 Criteria for Classification of Solid Waste Disposal Facilities and Practices; Identification and Listing of Hazardous Waste. 4 Reisman, J, Frisbie, G, Calculating Realistic PM10 Emissions from Cooling Towers, Environmental Process & Sustainable Energy, July Hosler, C.L, Pena, J, Pena, R, Determination of Salt Deposition Rates from Drift from Evaporative Cooling Towers, Journal of Engineering for Power, July Environmental Quarterly Summer 2017

17 often lead to significantly conservative results. To achieve a more representative estimate of the mechanical evaporator emission rate through calculations, a complex particle dynamics model is required. These advanced methods utilize additional real world particle and droplet dynamic processes and must also consider meteorological effects and potential PM plume characteristics for sources situated within the evaporative pond system. The combination of these processes yields a comprehensive theoretical model that is as close to the actual processes occurring in the atmosphere as possible. However, this model will likely still have limitations, as it will be inhibited by not including processes such as droplet collision and coalescence, which can influence the transport of droplets and PM from the source. Emission Rates from Monitoring Techniques Due to the limitations of theoretical calculations, it can be more representative to directly measure PM concentrations generated by mechanical evaporators in situ and then subsequently reversemodel the results to find an emission rate for the evaporator. Using a methodology that directly measures the PM concentration from the mechanical evaporator at a downwind distance or at the edge of the evaporation pond system takes into account the complexities of the droplet and particle interactions, along with the variability in concentrations due to the meteorology and operations. The customized measurement strategy is critical to this monitoring technique, with measurements of the aerosol size distribution being conducted both upwind and downwind of the source. Using both upwind and downwind monitors allows the PM concentration associated with the mechanical evaporator during the monitoring period to be determined. The measured concentration data are then used as a model input along with the exact meteorological conditions occurring at the time of the PM concentration measurement. The reverse air dispersion modeling is then executed to determine the site- (Continued on page 23) Summer 2017 Environmental Quarterly 17

18 Navigating NEPA for Major Industrial Operations By VALERIE ROSENKRANTZ, Senior Consultant Bakersfield & Irvine, CA Building and operating a major industrial facility in the U.S. can be fraught with considerable regulatory challenges. Industrial operations such as those in the food processing, manufacturing, mining, oil and gas extraction, power generation, distribution, transportation, and transloading industries usually trigger a complex assortment of permits, reports, and regulatory reviews. These range from local land use permits to regional air and water quality permits and other regulatory approvals involving state and federal rules. One important program that covers some facilities was created by the National Environmental Policy Act (NEPA) of NEPA was enacted as a stop and think regulation to consider the effects of industrial pollution on our air, water, and natural environment. Many states, including California, Montana, New York and Washington, have since established their own NEPA-like regulations to create statewide policy for environmental protection. For environmental activists, NEPA is viewed as a necessary shield for environmental protection; many critics, however, believe NEPA is used as a sword by opponents to delay or kill off major federal actions, especially new facility construction. Moving Forward with a Long View NEPA regulations have endured over 45 years of application and refinements to incentivize lowerimpact projects, facilitate public input, and improve agency reviews. While NEPA regulations can be among the most confusing and time-consuming regulations, the key to avoiding delays and frustrations is knowing the intent of the law, how it is applied, and the NEPA guidance of the relevant federal agency. Effects of the New Administration on NEPA Implementation Based on recent executive orders, early indications of the new Trump administration reveal a major shift in federal environmental policy and enforcement. While the NEPA regulations have not yet been part of this activity, federal compliance with NEPA regulations is a complex undertaking requiring experienced staff and federal resources. It is possible that as the new administration attempts to streamline the environmental process, it may create new road blocks. Drastic regulatory staff cuts at key federal agencies could cause federal permit and NEPA reviews to be derailed due to lack of resources. Additionally, changes in appointments can inadvertently delay decision-making abilities, e.g., recent FERC appointments caused that commission to lack a quorum for some months. Anticipated changes in federal environmental rules, regulations, and staff procedures could also diminish the intent of NEPA regulations focused on full disclosure, agency coordination, and reducing environmental effects from federal actions. While it is too soon to predict what effect, if any, the new administration may have on NEPA enforcement, it does appear that a more business-friendly climate will exist for at least the next four years. This article aims to demystify the NEPA process and suggest environmental management strategies for major industrial operators to leverage the NEPA process if triggered. 18 Environmental Quarterly Summer 2017

19 What is NEPA? Major federal actions include the following: NEPA (42 USC 4321 et. seq.) established national environmental policy to protect, maintain, and enhance the physical and natural environment and the relationship of people with that environment. NEPA creates a roadmap for measuring, assessing, and mitigating the anticipated effects of a major federal action before federal projects, permits, or actions using federal funds are approved. As a procedural rather than a prescriptive legislation, NEPA requires a federal agency to substantively demonstrate a hard look1 at the environmental effects of its action. The presence of an adverse environmental effect alone will not prevent a federal agency from approving a federal permit or action: the purpose of the NEPA process is to assess and disclose environmental effects of major federal actions and to consider whether there are appropriate alternatives to reduce adverse effects as well as consider substantive public comment. > New or revised federal agency rules, regulations, policies, plans, and procedures; > Federal permits for major projects including power plants, interstate pipelines, highways, mass transit, and major water or wastewater treatment; and > Public or private sector projects using federal funds or located on federal land. Most major industrial facilities are privately owned and operated and likely will not require a NEPA review. However, some major industrial activities can trigger federal permits which can then trigger NEPA. Power plants can trigger Federal Energy Regulatory Commission permits which are clearly a major federal 1 Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, (1976) NEPA regulations can be strategically applied to offer a one-stop comprehensive analysis and public review process, as well as a multi-agency (federal and state) tool for permitting and approvals. Summer 2017 Environmental Quarterly 19

20 action. Major industrial facilities exceeding air emissions and water discharge thresholds can trigger U.S. Environmental Protection Agency permits. An oil and gas or mining project on public lands would trigger a federal action and NEPA review. A project in the waters of the U.S. can involve a U.S. Corps of Engineers permit. Knowing whether a facility could trigger a major federal action, and thus NEPA, could inform the location and operations of a new major industrial investment during pre-application due diligence. 3. Proposed Action is Described in Agency Categorical Exclusion (CE) NO NO The NEPA Process 1. Agency Identifies a Need for Action and Develops a Proposal 2. Are Environmental Effects Likely to Be Significant? 5. Significant Environmental Effects Uncertain or No Agency CE YES 8. Significant Environmental Effects May or Will Occur The NEPA Process in a Nutshell The Council on Environmental Quality, charged with overseeing NEPA implementation, published A Citizen s Guide to the NEPA in 2007, to provide easy to understand guidance and facilitate public involvement. The NEPA Responsible Agency is the lead federal agency responsible for the major federal action. The NEPA process first requires the responsible federal agency to determine if its actions trigger NEPA, then the federal agency determines the compliance path. The environmental impact assessment process can involve three increasingly complex levels of NEPA compliance analysis: 1 - Categorical Exclusion (CE) 2 - Environmental Assessment /Finding of No Significant Impact (EA/FONSI) 3 - Environmental Impact Statement (EIS) CEs may apply to a federal action when it does not individually or cumulatively have a significant effect on the human environment. 2 CEs would apply to administrative decisions or minor modifications or restoration to a federal facility. CEs may also apply to a permit application if the activity level is below specific thresholds for emissions or other potential environmental impacts. A CE is a basic form with reference to substantive findings (e.g., a previous NEPA document, a memo, field analysis, or permit application for the proposed action) which clearly delineates the activity as within the scope of a CE as defined in the NEPA guidelines of the NEPA Responsible Agency. The public comment opportunities regarding a CE are generally limited to the Notice of Intent (NOI) to approve the CE and proposed action. YES 4. Does the Proposal Have Extraordinary Circumstances? NO YES Decision 6. Develop Environmental Assessment (EA) with Public Involvement to the Extent Practicable Significant Environmental Effects? 7. Finding of No Significant Impact Implementation with Monitoring as Provided in the Decision 9. Notice of intent to prepare Environmental Impact Statement (EIS) 10. Public Scoping and Appropraite Public Involvement 11. Draft EIS 12. Public Review and Comment and Appropriate Public Involvement 13. Final EIS 14. Public Availability of FEIS 15. Record of Decision *Significant new circumstances or information relevant to environmental concerns or substantial changes in the proposed action that are relevant to environmental concerns may necessitate preparation of a supplemental EIS following either the draft or final EIS or the Record of Decision (CEQ NEPA Regulations, 40 C.F.R (c)). NO An EA provides a concise review of the environmental effects of the proposed action, determines the significance for each environmental issue area, and considers the project s alternatives. The EA is more comprehensive than a CE, yet briefly provides sufficient analysis and evidence to determine whether an EIS is required. An EA includes the following: > The purpose and need for the proposed action, > Proposed alternatives, > The environmental impacts of the proposed action and alternatives, and > A list of agencies and persons consulted YES 2 Council on Environmental Quality NEPA Regulations, 40 CFR Environmental Quarterly Summer 2017

21 The EA includes significance evaluations for the proposed action on each environmental category and identifies ways to revise the action to minimize the effects. The EA also involves environmental agencies, applicants, and the public in preparing and reviewing the EA. After the EA process is complete, it concludes with either a FONSI determination or a decision to proceed into preparing an EIS. There are more opportunities for public review and comment with an EA. CEs and EAs are the most common NEPA documents, with thousands completed each year. By contrast, there are only hundreds of EIS prepared annually. The EIS is the most detailed level of NEPA review. An EIS is required when a federal agency is proposing a major federal action which will significantly affect the quality of the human environment. The EIS process includes the steps listed below. > NOI > The scoping process > Draft EIS Purpose and Need Reasonable alternatives evaluation Direct, indirect and cumulative effects of preferred alternative A well-designed communication strategy facilitates positive public input and environmental impact assessments. > Public comment period > Final EIS (including responses to substantive comments) > Notice of Availability > Record of Decision The EIS involves the most opportunities for public review and comment. Large, complex projects often include multiple federal agencies as well as state, local, and tribal agencies. A cooperating agency has jurisdiction by law or special expertise and will oversee its assessment area (e.g., the U.S. Fish and Wildlife is responsible for the wildlife impact assessments). The EIS may include a statement of environmental impact for air quality, water, land use, land forms, hazardous substances, wastes, subsurface, wildlife, cultural, utilities and transportation, depending on the proposed action and its environmental setting. Take Advantage of Due Diligence A true due diligence process can save project applicants time and money. The key is asking the right questions early and being willing to adjust project features (and thus reduce potential environmental effects and possibly additional permits) before submitting permit applications. Most agencies will be willing to participate in pre-application review discussions. This offers applicants an opportunity to collect critical information and advance their project evaluation before over-investing in a preliminary project design. All of this due diligence can then be incorporated in the scope of the project and applications. Public and Agency Involvement The NEPA process includes several opportunities for public comment, especially with the EIS review. A well-designed communication strategy facilitates positive public input for environmental impact assessments. Conversely, when public input is limited and projects are not well described, public involvement can become challenging and create delays. With major projects, it is important that key community leaders are invited into the project development and review process early. The NEPA Responsible Agency and applicants can then incorporate community input, and the overall project success rate is improved. Controversial projects benefit from creative community consultation strategies. Summer 2017 Environmental Quarterly 21

22 NEPA can affect every sector of the economy and thousands of projects. The same principles apply to agency coordination. When multiple agencies are involved in the permitting and approval processes, early inter-agency coordination can facilitate a more efficient review process. Often, when agency staff are sought for guidance, they are more likely to provide timely reviews and creative consideration of permit conditions. Avoiding Technical Snags Another potential obstacle in launching a complex project is not understanding all the potential technical issues. Through a transparent project evaluation/due diligence process, which may include screening-level technical reviews before locking in project details, many issues can be resolved early in the process. Potential technical snags could include the following: > Failing to identify all applicable permits and approvals; > Inadvertently exceeding major permitting thresholds; > Locking in the purpose and need description before screening out of a complex technical study; and > Not having a good communications strategy. Closing In conclusion, by better understanding the intent of the NEPA law and how it is applied, an industrial applicant can successfully navigate the NEPA review, more efficiently move through its permitting process, and more quickly break ground. Implementing the strategies listed below is key to avoiding or overcoming regulatory obstacles. 1) Engage in an early due diligence process to effectively position the project application and positively focus initial pre-application agency conversations. 2) Initiate pre-application screening studies to refine project site plans, equipment, and operations levels and make changes to avoid or minimize environmental impacts before formal application submittal. 3) Apply a proactive approach when engaging with agency reviews and public input. 4) Understand the technical requirements for each application to avoid procedural snags and schedule delays. v Need Help with Environmental Impact Assessment for NEPA? Trinity s Environmental Impact Assessment team has prepared thousands of NEPA CEs, EAs and EIS. In addition, Trinity s team has conducted thousands of air quality impact assessments, greenhouse gas studies, health risk assessments, noise studies, and odor evaluations for inclusion in NEPA (and NEPA equivalent) documents. Trinity s NEPA (and NEPA-equivalent) compliance services specialize in major industrial facilities, including manufacturing, mining, oil and gas extraction, power generation and port projects. For assistance, contact Dave Strohm at dstrohm@trinityconsultants.com or Valerie Rosenkrantz at vrosenkrantz@trinityconsultants.com. 22 Environmental Quarterly Summer 2017

23 Emission Factor Development for Mechanical Evaporators (Continued from page 17) specific emission rate emitted from the mechanical evaporator based on operational setup, pond TDS concentration, PM concentrations, and meteorology. Based on emission factor studies conducted in the United States for evaporation ponds with TDS concentrations ranging from 12,000 ppm to over 100,000 ppm, mechanical evaporator emission rates determined using monitoring techniques were significantly lower than rates derived using theoretical calculations. The improved representativeness of the PM emission rates not only is beneficial for complying with air quality standards, but also allows facilities to add additional evaporation capacity due to the lower emission factors. State Agency Review The New Mexico Environment Department (NMED) and Arizona Department of Environmental Quality (ADEQ) have reviewed and accepted site-specific, customized emission factors for mechanical evaporators that were developed using monitoring methods. In the summer of 2017, a similar study will also be conducted and reviewed by Maricopa County (Arizona) Air Quality Department. Conclusions Emission factors are the fundamental basis for quantifying a source s emissions. It is therefore critical to have a representative emission factor for all sources, including fugitive and difficult-to-quantify sources such as mechanical evaporators. Customized studies for a number of mechanical evaporator units in different industries have produced results demonstrating that the emission factor estimated from theoretical calculations significantly over-estimates the actual emission factor as derived through the combined monitoring and modeling technique discussed here. Air permit applications developed using the results of this technique have been submitted to the NMED and ADEQ for review and have been approved for use in future permitting actions as a method of quantifying quantifying emissions from onsite mechanical evaporators. v Trinity Steps Out at Fall Conferences/Trade Shows U.S. EPA 2017 National Air Quality Conference Sep 11, 2017 Austin, TX 2017 NCASI West Coast Regional Meeting Sep 25, 2017 Vancouver, WA 2017 VMA Environmental Health & Safety Conference Sep 28, 2017 Richmond, VA SOER Oklahoma Oil and Gas Expo 2017 Oct 12, 2017 Oklahoma City, OK 2017 MMA Environmental & Safety Conference and Expo Oct 12, 2017 Philadelphia, MS AFPM Environmental Conference 2017 Oct 15, 2017 Denver, CO 2017 Indiana Environmental Conference Oct 23, 2017 Indianapolis, IN NAEM EHS & Sustainability Management Forum 2017 Oct 25, 2017 Ft. Lauderdale, FL FET Annual Conference and Exhibition 2017 Oct 25, 2017 Pewaukee, WI Florida Section A&WMA 53rd Annual Conference 2017 Oct 25, 2017 Tampa, FL AEF 2017 Annual Convention & Trade Show Oct 26, 2017 Hot Springs, AR Summer 2017 Environmental Quarterly 23

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