Ohio EPA Proposes to Revise Eight Municipal Solid Waste Rules


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On July 6, 2020, the Ohio Environmental Protection Agency (Ohio EPA) Division of Materials and Waste Management filed eight municipal solid waste (MSW) landfill rules with the Joint Committee on Agency Review.  The eight rules proposed for revision are:

  1. 3745-27-02 Permit to install
  2. 3745-27-05 Applicability and relation to other laws
  3. 3745-27-06 Sanitary landfill facility permit to install application
  4. 3745-27-07 Additional criteria for approval of sanitary landfill facility permit to install applications
  5. 3745-27-08 Sanitary landfill facility construction
  6. 3745-27-09 Sanitary landfill facility operating record
  7. 3745-27-11 Final closure of a sanitary landfill facility
  8. 3745-27-14 Post-closure care of sanitary landfill facilities

The public comment period will run until August 12, 2020. On that date, the Ohio EPA will hold a virtual public hearing on the rules. The link to the virtual hearing is at the Ohio EPA’s webex events site: https://ohioepa.webex.com/mw3300/mywebex/default.do?siteurl=ohioepa&service=6

Written comments can be submitted during the virtual public hearing or emailed to Michelle Mountjoy at michelle.mountjoy@epa.ohio.gov.

The Interstate Technology and Regulatory Council (ITRC) has released an online Risk Communication Toolkit.  The EPA defines “risk communication” as the process of informing people about potential hazards to their person, property, or community. It is a science-based approach for communicating effectively in situations of high stress, high concern, or controversy. Now more than ever, risk communication is front and center in our everyday lives and the timing of this document could not be better.

Navigating this new world due to COVID-19 has been a challenge to everyone, including Ohio EPA. To protect against the potential spread of COVID-19 while maintaining their mission to ensure compliance with environmental laws and regulations, Ohio EPA is piloting the use of virtual site visits (VSVs) for select categories of inspections (e.g., routine, screening, non-enforcement).  The first step in the process will be a pre-meeting conducted by Ohio EPA via phone/video conference to discuss logistics and necessary equipment. The actual inspection will be accomplished virtually, using a life streaming application in combination with photographs. During the virtual facility walk-through portion of the inspection, the facility contact will walk the Ohio EPA inspector through areas of the facility normally inspected using a camera phone connected to the internet.  Ohio EPA has prepared a one-page document providing an overview of the process, which, at the time of publication of this article, had not been posted on the Ohio EPA website. We plan to include a newsletter article summarizing a VSV experience in the upcoming months, so keep a lookout!  In the meantime, for more information contact Lindsay Johnson or Nick Petruzzi.

USEPA and others in the vapor intrusion (VI) field have been evaluating a variety of Indicators, Tracers, and Surrogates (ITS) to assess their use in predicting the best time to collect representative indoor air samples for vapor intrusion studies (Schuver, et. al., 2018).  The idea is that if a predictive combination of easily obtainable, low cost ITS can be identified, they could be used to improve the collection of actionable analytical data at a lower cost. 

For VI assessments, typical indicators include seasons of the year, wind speed, the difference between the indoor and outdoor temperatures (differential temperature), barometric trends, and the difference between sub-slab and indoor air pressure (differential pressure).  Last month, I reviewed two ambient factors that are potential contributors to changes in differential pressure – barometric pressure and temperature (indoor and external).  As is common in the industry, I obtained the barometric pressure and external temperature data from a remote weather station which was many miles from my site.  This month, I will compare the differential pressure data to an onsite weather station to see if we can tease out any details. 

Differential pressure is generally measured with a hand-held manometer by measuring sub-slab air pressure and indoor air pressure and taking the difference.  Recently, however, sensitive differential pressure sensors have become available as part of the “Internet of Things” (IOT) revolution.  These sensors can be connected to permanent sub-slab monitoring points, such as the Vapor Pin®, to collect and transmit differential pressure, temperature, and barometric pressure readings to the web at preset intervals.  They can also be used to set alarm point that will notify users of system faults or other unacceptable conditions.

This month (July 2020), I collected differential pressure using a sensor at our warehouse.  The sensor was connected to a Vapor Pin® and allowed to run continuously. The warehouse consists of 4,500 square feet, slab-on-grade with a common moisture barrier.  The ceiling height is approximately 22 feet, the walls and roof are constructed of insulated steel, and the building interior is heated by two gas fired furnaces hanging from the ceiling.  For this experiment, the differential pressure sensor measured and logged differential pressure and internal temperature.  External temperature and barometric pressure readings were obtained from both a remote weather station several miles from our warehouse and from an onsite weather station. 

Last month’s data indicated that the differential pressure was directly related to the internal temperature of the building and not so much to external temperature nor barometric pressure.  The latter observation was puzzling to me because I would have expected barometric pressure to be a primary driver of differential pressure.  My first inclination was that the barometric pressure at the site must be significantly different than that reported by the remote weather station.  To compensate for this, I rented an onsite weather station to log, among other things, barometric pressure and temperature.       

The two graphs below plot a segment of the collected data as differential pressure, exterior temperature, and interior temperature on one graph; and differential pressure and barometric pressure on the other graph.

Upon inspection of the graphs, two conclusions can be made with respect to differential pressure: 1) from July 8 through 14, the differential between the sub-slab environment and the indoor air space was slightly greater than 0, indicating that the flow of soil gas was upward into the warehouse most of the time; and 2) there is a slight diurnal fluctuation in differential pressure during the week.  

The graph of temperatures is quite revealing. Based on this week of data (which was consistent with readings collected throughout the month), the differential pressure tends to mirror the changes in internal temperature and external temperature from both the onsite and remote weather stations. The diurnal internal temperature and maximum differential pressure occurs around noon of each day. I suspect that this pattern is due to solar heating of the building. Although not the case last month, external temperature from both the onsite and remote weather stations appeared to be directly relatable to changes in differential pressure.

The graph of barometric pressure is also revealing. I had suspected that differential pressure would be most sensitive to changes in barometric temperature. However, as confirmation to last month’s data, there is no immediately discernable patterns in the differential pressure and barometric pressure readings, either collected onsite, or remotely.  It is interesting that the remote and onsite barometric pressure readings track one another very well but are shifted by about one inch of mercury.  I believe this may be a calibration issue associated with the onsite instrument. 

What these data demonstrate, in our case at least, is that the remotely obtained temperature data, which matches the onsite data during this time period, appears to be useful in predicting the differential pressure changes for this warehouse space.     

We must remember, however, that the conditions measured in the spring and summer months of Ohio, may not be representative of those in the fall and winter months.  As the weather changes and we move into the heating season, we will revisit this issue.

As we wait for the weather to change, we may set our sights on a surrogate for VI.  Stay tuned.

Reference:

Schuver, H, Lutes, C, Kurtz, J, Holton, C, Truesdale, RS. Chlorinated vapor intrusion indicators, tracers, and surrogates (ITS): Supplemental measurements for minimizing the number of chemical indoor air samples—Part 1: Vapor intrusion driving forces and related environmental factors. Remediation. 2018; 28: 7– 31. https://doi.org/10.1002/rem.21557  

Since 2002, a bona fide prospective purchaser (BFPP) of a brownfield property could avoid Federal liability for investigation and cleanup if they performed appropriate Due Diligence. This process typically begins with an All Appropriate Inquiry (AAI) or ASTM Phase I Environmental Site Assessment (ESA) performed prior to the purchase of a property. Until now, the only similar State of Ohio liability protection was through the Ohio Voluntary Action Program (VAP). Although the VAP has been a model program for redevelopment of heavily contaminated brownfield sites for 25 years, not every brownfield site is heavily contaminated, and participation in the VAP can be both costly and lengthy.

House Bill 168 (H.B. 168) establishes Ohio liability protection to match the Federal liability protection provided by standard AAI/ASTM Phase I ESAs. It also provides a much-needed change to prevent automatic voidance of protection under the VAP.

As summarized by the Ohio Legislative Commission H.B. 168 “establishes an affirmative defense that allows a bona fide prospective purchaser (BFPP) to claim immunity from liability for the costs associated with the state’s performance of investigational and remedial activities to address a release or threatened release of a hazardous substance from the BFPP’s facility.” In other words, it provides the same protection from state liability as is provided at the Federal level under CERCLA legislation.

H.B. 168 also makes an important change to the VAP that “eliminates the law that automatically voids a covenant not to sue under the VAP when a property subject to institutional controls or activity use limitations is not in compliance with those controls or limitations.” As an example, say that an employer generously began to provide on-site childcare for its employees without realizing that a commercial/industrial use restriction on the property meant that daycares were prohibited on their property. Under VAP rules, liability protection for the employer was automatically voided on the day the daycare opened. If they desire VAP liability protection they are now back at square one and need a new No Further Action (NFA) letter and Covenant Not to Sue (CNS) to regain their liability protection. Even if they can demonstrate that there is zero risk to the children and Ohio EPA is in full agreement that there is no risk, everyone’s hands are tied, and the CNS is void. With H.B. 168, this is changed so that the Director of Ohio EPA is authorized, but not required, to void a covenant when a property falls out of compliance.

So, as a post H.B. 168 prospective purchaser of an Ohio brownfield, should you take the BFPP route or the VAP route?

Every situation is unique, particularly in brownfield redevelopment. First, regardless of which route you choose, you want to have high quality, defensible assessments. Phase I ESAs have nearly become a commodity and, unfortunately, many lack the thoroughness and detail necessary to identify and address issues or even meet the AAI and ASTM standards. Second, a good environmental attorney will provide you pragmatic advice on the level of due diligence and liability protection you should have and can help you identify shortcomings in ESAs.

Presuming you have a strong project team and are eligible to enter the VAP (i.e. not subject to certain other programs or enforcement actions), we generally recommend VAP for the following:

  • Projects where a lender or buyer requires a VAP NFA or CNS,
  • Projects where grant funds require participation in the VAP,
  • Projects where a property owner desires liability protection from a release that they caused or contributed to (i.e. they cannot be a BFPP),
  • Projects that will likely be the subject of a regulatory enforcement action if not addressed voluntarily, and
  • Projects with a high level of risk, perceived risk, or public scrutiny, where written concurrence from Ohio EPA is beneficial.

In our experience, 95% of brownfield projects do not meet any of these criteria. While the VAP remains an option as a “gold standard” for risk aversion, it is often not our first recommendation.

All that said, there is a “but…”, and that is that simply having a Phase I and Phase II ESA does not guarantee you liability protection – no matter how well they were prepared. You must always remember your “continuing obligations.” In simple terms, even if you are not liable to investigate or cleanup contamination, you are required to protect occupants of your property from exposure and not do anything that would make things worse. Regrading contaminated soil, not securing or disposing drums of chemicals, changing stormwater drainage patterns, refusing access to regulatory agencies to investigate or cleanup, and failing to maintain engineering controls or remedial equipment can expose you to the liability you thought you had avoided. Regular checks that the fan on your vapor mitigation system is still running are easily forgotten, particularly when no regulatory agency is involved. Developing a clear and easy to follow Continuing Obligations Plan is an essential part of the BFPP process.

H.B. 168 passed with unanimous support and was signed by Ohio Governor Mike DeWine on June 16, 2020. The bill will take effect on September 14, 2020, with some of its provisions becoming applicable retroactively.

There are many benefits to brownfield redevelopment. If you own, or are considering purchasing, a brownfield property, give us a call and we will help you navigate the best path forward.    

A solid waste is considered a hazardous waste if it is associated with a listing or a characteristic.  One of the four possible characteristics of a hazardous waste is ignitability.  The ignitability characteristic (D001) applies to various types of solid waste, one of which is a liquid that exhibits a flash point less than 140o F.  On July 7, 2020, EPA issued a final rule in Federal Register (FR) 40594 to modernize the determination of ignitable liquids, along with other minor changes.  This rule becomes effective on September 8, 2020 and includes the following elements:

  • Test methods to determine flash point of a liquid waste have been updated to include additional ASTM standards, while retaining the existing ASTM standards that are referenced in SW-846 Method 1010A (Pensky-Martens) and SW-846 Method 1020B (Setaflash).  Allowing use of additional ASTM standards provides greater flexibility in the determination of an ignitable hazardous waste and allows phase-out of outdated standards that rely on instrumentation that is no longer readily commercially available. 
  • Air sampling and stack testing using SW-846 Methods 0001, 0011, 0020, 0023A, and 0051 have been updated to allow use of alternative temperature-measuring devices, while retaining the existing method of using a mercury thermometer.  Allowing use of multiple temperature-measuring devices provides greater flexibility and improves worker safety and reduces spill cleanup costs associated with the use of mercury thermometers.
  • Previous guidance that defined “aqueous” as “at least 50 percent by water weight” has been codified for the purpose of clarifying 40 CFR 261.21(a)(1), which pertains to properties of characteristically ignitable liquids.
  • Various conforming amendments to other parts of the CFR are being finalized for consistency with the above changes.

There were also elements within the proposed rule that did not get incorporated into the final rule: provisions related to a revised definition of alcohol in association with the aqueous alcohol exclusion; codifying guidance related to sampling requirements for mixed waste; and incorporation of the application of the Pressure Filtration Test in identifying ignitable liquid waste.  Final action was not taken on these elements based on a significant number of public comments which made compelling arguments that the proposed rules would cause confusion rather than clarification.  The agency may seek additional public comment on some of these elements in the future.    

The final actions that will become effective on September 8, 2020 are considered no more and no less stringent than existing rules.  Therefore, authorized states may, but are not required to, adopt the changes. 

USEPA and others in the vapor intrusion (VI) field have been evaluating a variety of Indicators, Tracers, and Surrogates (ITS) to assess their use in predicting the best time to collect representative indoor air samples for vapor intrusion studies (Schuver, et. al., 2018).  The idea is that if a predictive combination of easily obtainable, low cost ITS can be identified, they could be used to improve the collection of actionable analytical data at a lower cost. 

For VI assessments, typical indicators include seasons of the year, wind speed, the difference between the indoor and outdoor temperatures (differential temperature), barometric trends, and the difference between sub-slab and indoor air pressure (differential pressure).  Last month, I reviewed the usefulness of one such indicator – sub-slab to indoor air differential pressure. This month I will look at two ambient factors that are potential contributors to changes in differential pressure – barometric pressure and temperature.

Differential pressure is generally measured with a hand-held manometer.  Recently, however, sensitive differential pressure sensors have become available as part of the “Internet of Things” (IOT) revolution.  These sensors can be connected to permanent sub-slab monitoring points, such as the Vapor Pin®, to collect and transmit differential pressure, temperature, and barometric pressure readings to the web at preset intervals.  They can also be used to set alarm point that will notify users of system faults or other unacceptable conditions.

This month (June 2020), I installed a differential pressure sensor at our warehouse.  The sensor was connected to a Vapor Pin® and allowed to run continuously. The warehouse consists of 4,500 square feet, slab-on-grade with a common moisture barrier.  The ceiling height is approximately 22 feet, the walls and roof are constructed of insulated steel, and the building interior is heated by two gas fired furnaces hanging from the ceiling.  For this experiment, the differential pressure sensor measured and logged differential pressure and internal temperature.  External temperature and barometric pressure readings were obtained from monitoring data published through a weather site on the internet, a common source of data for our industry.

The two graphs below plot a segment of the collected data as differential pressure, exterior temperature, and interior temperature on one graph; and differential pressure and barometric pressure on the other graph.

Upon inspection of the graphs, two conclusions can be made with respect to differential pressure: 1) during the week of June 7 through 13, the differential between the sub-slab environment and the indoor air space was slightly greater than 0, indicating that the flow of soil gas was upward into the warehouse most of the time; and 2) there is a slight diurnal fluctuation in differential pressure during the week.  

The graph of temperatures is quite revealing.  Based on this week of data (which was consistent with readings collected throughout the month), the differential pressure tends to mirror the changes in internal temperature, but is less affected by the changes in external temperature. The diurnal internal temperature and maximum differential pressure occurs around noon of each day.  I suspect that this pattern is due to solar heating of the building, and would indicate, in our situation, that external temperature is not a dominant factor in effecting the differential pressure.

The graph of barometric pressure is also revealing.  I had suspected that differential pressure would be most sensitive to changes in barometric temperature.  However, to my surprise, there is no immediately discernable patterns in the differential pressure and barometric pressure readings. Could this really be the case?  I have, for instance, measured large fluctuations in water levels in confined aquifers due only to changes in barometric pressures.  Why not here?  

It may be that we relied on weather data available through the internet from a remote weather station for barometric pressure (and temperature) data rather than site data. We may need to collect our own data locally to see if patterns emerge.

Next month, we will revisit the external temperature and barometric pressure data with locally placed weather station data.  In addition, we will examine the potential effects of wind speed on differential pressure.

We must remember, however, that the conditions measured in the spring and early summer months of Ohio, may not be representative of those in the fall and winter months.  Stay tuned.

Schuver, H, Lutes, C, Kurtz, J, Holton, C, Truesdale, RS. Chlorinated vapor intrusion indicators, tracers, and surrogates (ITS): Supplemental measurements for minimizing the number of chemical indoor air samples—Part 1: Vapor intrusion driving forces and related environmental factors. Remediation. 2018; 28: 7– 31. https://doi.org/10.1002/rem.21557  

Published in the June 2020 Focus on the Environment Newsletter

With the federal government lagging-behind in the establishment of regulated standards for PFAS compounds, states are left to develop their own policies and standards, a process which has created something of a wild west atmosphere for those at the front lines of the issue.  With EPA finally embarking down the long and uncertain road to regulate perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) in drinking water under the Safe Drinking Water Act (SWDA), some are just happy to be seeing the tunnel entrance, if not necessarily the light at the end of it. 

Other than perhaps the United States Department of Defense (which currently has the largest number of PFAS contaminated sites in the US), arguably no one has more skin in the PFAS game than privately owned and public sector water utilities.  In this wild west atmosphere, they are the ones that at the end of the day are responsible for ensuring a safe and reliable source of drinking water for their customers.  As a result, they often bear the brunt of the burdens (i.e. costs) of testing and treatment.  Burdens which we will all share eventually as these additional costs inevitably get passed along in our water bill.  To get some idea what those costs might be, recent projections estimate that PFAS management will drive annual water utility spending into the billions of dollars.

In a June 3 letter addressed to EPA Administrator Andrew Wheeler, nine leading water organizations implored the EPA to move expeditiously in their evaluation of drinking water standards for two per- and polyfluorinated substances (PFAS).  Emphasizing that the implications of regulating these substances will be “far-reaching” and thus an expeditious decision “based on sound science and robust analyses, is necessary to ensure effective protection of human health.” In addition to regulation under the SWDA, the group lobbies EPA to proactively utilize other existing authorities (such as TSCA and the Resource Conservation and Recovery Act) to protect drinking water supplies. The groups that directed the letter are the American Water Works Association (AWWA), National Rural Water Association (NRWA), National Ground Water Association (NGWA), Association of California Water Agencies (ACWA), Association of Metropolitan Water Agencies (AMWA), Ground Water Protection Council (GWPC), Irrigation Association, National Association of Water Companies (NAWC), and National Water Resources Association (NWRA).

Based on their “collective concern and interest in timely regulatory decisions regarding PFAS by EPA under the Safe Drinking Water Act (SDWA) and other statutes,” the group urged the Agency to do the following:

1. Provide the resources required to complete the technical and economic analyses necessary to support a proposed SDWA action for PFOA and PFOS.

2. Begin engagement with outside experts to develop and review a public health risk assessment for PFAS beyond PFOA and PFOS to guide determining which PFAS or groups of PFAS should be targeted for data collection and risk management measures.

3. Actively engage water systems, local government, state agencies, and other key stakeholders in the practical implementation of PFAS risk management including establishing the adequacy of analytical methods and capacity, effective risk communication, and sustainable treatment options, among other important factors.

4. Accelerate research on water treatment, occurrence, and health effects to support future decision making and contaminant prioritization.

5. Leverage available regulatory tools in other statutes to gather occurrence and health risk assessment data and organize them to support research and decision making, using regulatory tools that include the Toxics Release Inventory, Sections 4 and 8 of the Toxic Substances Control Act, and the Unregulated Contaminant Monitoring Rule.

Will the letter push EPA to expedite the MCL development process for PFOA and PFOS?  Probably not, however, the group sends a strong, unified message “America’s water supply should not be the primary line of defense against pollutants that pose a serious public health risk.”  Simply stated, MCLs should serve as the last line of defense when other regulatory barriers have failed, not as the first line of defense to identify if a problem exists. 

Published in the May 2020 Focus on the Environment Newsletter

Per-and polyfluoroalkyl substances (PFAS) compounds are man-made chemicals that have been used in numerous industrial processes and many consumer products such as cookware, stain resistant carpets, grease resistant food packaging, raincoats, makeup, and many others. PFAS compounds are persistent in the environment and have been shown to accumulate in people and animal tissues. They have been shown to induce tumors, disrupt hormones, and cause damage to the immune system and organs like kidneys and the liver. They are widespread in the environment, and have been found throughout the world in soil, groundwater, surface water and air.

In 2016, EPA established health advisory levels (HALs) for PFOA and PFOS, two of the most prevalent PFAS compounds, at 70 parts per trillion (ppt).  Although the HALs are intended to offer a margin of protection from adverse health effects from exposure to PFOA and PFOS in drinking water, they are non-regulatory and non-enforceable.   In late 2019, the EPA finally signaled their intention to establish MCLs for PFOS and PFOA in drinking water, beginning a process that will likely take multiple years before a federal drinking water standard is finalized.  With the federal government lagging-behind in the establishment of regulated standards, states are left alone to develop their own policies to regulate these chemicals, a process leaving them open to challenges, legal and otherwise, regarding their authority to establish standards and require corrective action.

New Hampshire was the first state to establish MCLs for PFAS in drinking water and on September 20, 2019 when the standards became enforceable, the state was promptly sued by 3M and others to prevent the standards from taking effect.  In December 2019, the Merrimack County Superior Court issued a preliminary injunction barring enforcement of the rules due to the alleged failure of the New Hampshire Department of Environmental Services to appropriately consider the costs and benefits of the rules. With it bogged down in the courts, it is uncertain if and/or when New Hampshire’s standards will take effect.

As with drinking water MCLs, the lack of federally regulated cleanup standards has left states with little leverage to force responsible parties to remediate PFAS contaminated sites.  Because PFAS chemicals were a key ingredient in firefighting foams used widely by the military during training and emergencies, the federal government is responsible for large number of PFAS contaminated sites across the country.  The Pentagon estimates environmental and legal liabilities in the billions of dollars to investigate and remediate PFAS releases at hundreds of military bases.  To date, the US Department of Defense (DoD) has proactively initiated short-term actions (e.g. provided bottled water, point of use filters) and long-term actions (e.g. municipal connections, filtration systems) such that no one is drinking water above the HAL of 70 ppt at sites where the DoD is the known source of PFOA and PFOS.   However, for those states with either proposed MCLs and/or Health Based Guidance Levels for PFOA and PFOS at concentrations less than the 70 ppt HAL, there exists a gap between what the DoD will provide treatment for versus what the state contends is safe to drink.  As more and more states attempt to force the military to investigate and clean up PFAS related contamination, the DoD has begun pushing back, contending that PFAS contamination falls under Federal cleanup law, in this case CERCLA, and challenging the authority of states to require corrective action. 

In April of this year, New Jersey proposed MCLs for PFOA and PFOS at 14 ppt and 13 ppt, respectively, as well as adding both to the List of Hazardous Substances.  The proposed MCLs are considerably stricter that the EPA HAL of 70 ppt and could set the standard for other states looking to emulate New Jersey’s proactive stance.  As with New Hampshire, New Jersey likely will face legal challenges after the rules become final; however, the robust process New Jersey used to develop their MCLs potentially places them on firmer footing.  

The NJDEP employs a panel of the state’s leading water experts under its Drinking Water Quality Institute (Institute) for the sole purpose of developing MCLs for hazardous contaminants in drinking water.  In the case of PFOA and PFOS, three subcommittees were established within the Institute to address the essential considerations for development of MCLs as outlined in the New Jersey Safe Water Drinking Act.  The Health Effects Subcommittee was responsible for recommending health-based levels, the Testing Subcommittee was responsible for revaluating and recommending appropriate laboratory analytical methods and the Treatment Subcommittee was responsible for evaluating best available treatment technologies.  Recommendations from each of the three subcommittees formed the basis for the recommended PFOA and PFOA MCLs.  Using this approach, the Institute ensures that the recommended MCLs are protective of human health, can be reliably quantified within acceptable limits of uncertainty and are attainable using current available treatment technologies. 

The road that individual states must take to establish and implement regulated standards for PFAS is mined with challenges.  So why should states like new Jersey go through the time, effort and expense knowing that they will likely be sued to prevent the standards from taking effect?  With New Jersey, the answer is simple.  As one of the most densely populated states in the country and one of the most industrialized, New Jersey has a particularly high occurrence of PFAS contamination in drinking water.  Consequently, New Jersey took a serious and thorough approach in developing their proposed standards.  As to whether their proposed standards can weather the impending legal challenges, stay tuned, NJDEP expects a final decision on the standards in the next few months.   

Published in May 2020 Focus on the Environment Newsletter

On October 9, 2019, the President of the United States signed Executive Order 13891, titled “Promoting the Rule of Law Through Improved Agency Guidance Documents.”  The Executive Order (EO) is the Trump Administration’s noteworthy effort to address the long-running problem of the use of guidance as regulation. We all know that guidance lacks the force and effect of law, but unfortunately it is sometimes  presented as a requirement and even when accompanied by a disclaimer,  may carry the implicit threat of enforcement action if the regulated community does not comply.

The EO essentially does two things.  First, it directs each federal agency to place all its active guidance documents into a single online guidance document portal.  Second, the Executive Order requires agencies to finalize or amend existing regulation on how guidance documents are issued, including a public notice and comment period and approval by the agency head or someone simply appointed by the president.

Shortly after publication of the EO, and without an opportunity for public review and comment, the Office of Management and Budget (OMB) issued instructions for implementing the EO through an October 31, 2019 memo titled Guidance Implementing Executive Order 13891. The OMB memo specifically requires “… each agency by February 28, 2020 to establish a single, searchable, indexed website that contains, or links to, all of the agencies’ respective guidance documents currently in effect. If an agency determines that it failed to include on its new guidance portal a guidance document that existed on October 31, 2019 it may reinstate the guidance document provided it does so by June 27, 2020.  Any rescinded guidance document that has not been reinstated by June 27, 2020, may be reinstated only by following all the necessary steps associated with the issuance of a new guidance document.”  The OMB guidance also requires that the following information be clearly visible on agency guidance portals:

  • “Guidance documents lack the force and effect of law, unless expressly authorized by statute or incorporated into a contract.”
  • “The agency may not cite, use or rely on any guidance that is not posted on the website existing under the executive order, except to establish historical facts.”

The EPA guidance portal is located at https://www.epa.gov/guidance. Guidance documents on the new guidance portal are organized by EPA offices such as Office of Air and Radiation, Office of Chemical Safety and Pollution Prevention, Office of General Council, Office of Land and Emergency Management, and Office of Water.  The portal also allows for selection of guidance by EPA regional office.  After clicking on a particular EPA office or regional office, the resulting page displays a list of all the guidance documents within the particular office or region in table format.  Information provided on the table includes document name, issue date, date added to portal list, EPA identifier, topic, and a description/summary.  A very basic search function allows simple searches of key words to help limit the number of entries.  The search results can then be sorted by date.  A May 22, 2019 search of the Office of Land and Emergency Management guidance portal page for the word “closure” reduced the original list of 3,690 documents to 184. Beyond sorting the list from newest to oldest or oldest to newest, the user is left scanning the title and description field to find the desired document.  A similar search for “RCRA Online” resulted in 2,729 documents of the 3,690 total entries, indicating that at least some of the critical RCRA Online guidance was considered “in effect” and has been moved to the portal.

Each page of the portal provides a link to submit a petition for Agency modification or withdrawal of guidance documents as well as the following statement:

“EPA’s guidance documents lack the force and effect of law, unless expressly authorized by statute or incorporated into a contract. The agency may not cite, use, or rely on any guidance that is not posted on this website, except to establish historical facts.”

The guidance portal also indicates that EPA is continuing to inventory guidance documents and anticipates providing updates prior to the June 27, 2020 deadline. If you utilize guidance that you consider critical to your business, I suggest that you verify it is included, and if not, contact the respective EPA office to determine why. Otherwise, after June 27, 2020 you may no longer be able to rely on it.

Although convenient to have all of EPA’s guidance in one searchable location, the real reason for the new single access point is only, in a small way, related to convenience or the user experience.  One only needs to scan the EO to understand that the real reason for this effort is to crack down on the overuse and reliance on guidance.  The simple requirement to place all agency guidance in one location makes clear in a less than subtle manner that the information is only guidance and should be used, or not used, with this in mind.  It is important to remember, however, that not all guidance is bad or should be ignored.  Guidance can and does, in many cases, perform an important role in providing clarification on how an agency interprets complicated regulations. Many in the regulated community rely on guidance to provide consistency both across the country and through time as regulators and administrations change. Without clear guidance, every regulator is free to interpret complicated or poorly written regulations as they see fit. 

It will be interesting to see how some EPA programs will function in the future, given the reliance on guidance. Take the RCRA Corrective Action program for example.  RCRA Corrective Action is the site-wide cleanup program for hazardous waste treatment, storage, and disposal facilities (TSDFs).  The multimillion-dollar program is implemented nearly entirely through guidance. And why is that?  Because stakeholders could not agree on regulations.  EPA tried multiple times through the proposed Subpart S regulations in 1990 and the 1996 Advanced Notice of Proposed Rulemaking (ANPR) to promulgate RCRA Corrective Action regulations. In both cases, the regulated community argued that the proposed regulations were too inflexible and burdensome, while environmental groups and public argued that the rules were not detailed or strict enough.  Without regulation, guidance was forced to fill the void.  If we are going to reduce the reliance on guidance, we should expect to see comprehensive and detailed regulations in the future, which in turn is going to make stakeholder agreement and promulgation of new rules more difficult.   This, after all, may be the long-range unstated goal of the Executive Order. 


Ohio EPA Proposes to Revise Eight Municipal Solid Waste Rules

On July 6, 2020, the Ohio Environmental Protection Agency (Ohio EPA) Division of Materials and Waste Management filed eight municipal solid waste (MSW) landfill rules with the Joint Committee on Agency Review.  The eight rules proposed for revision are: 3745-27-02 Permit to install 3745-27-05 Applicability and relation to other laws 3745-27-06 Sanitary landfill facility permit […]

Timing is Everything – ITRC Releases Risk Communication Toolkit

  • By: George
  • The Interstate Technology and Regulatory Council (ITRC) has released an online Risk Communication Toolkit.  The EPA defines “risk communication” as the process of informing people about potential hazards to their person, property, or community. It is a science-based approach for communicating effectively in situations of high stress, high concern, or controversy. Now more than ever, […]

Ohio EPA to Pilot Virtual Site Visits

  • By: Lindsay
  • Navigating this new world due to COVID-19 has been a challenge to everyone, including Ohio EPA. To protect against the potential spread of COVID-19 while maintaining their mission to ensure compliance with environmental laws and regulations, Ohio EPA is piloting the use of virtual site visits (VSVs) for select categories of inspections (e.g., routine, screening, […]

What Ambient Factors Contribute to Changes in Differential Pressure? – Part 2

  • By: Craig
  • Posted: 07/22/20

USEPA and others in the vapor intrusion (VI) field have been evaluating a variety of Indicators, Tracers, and Surrogates (ITS) to assess their use in predicting the best time to collect representative indoor air samples for vapor intrusion studies (Schuver, et. al., 2018).  The idea is that if a predictive combination of easily obtainable, low […]

New Ohio Law Encourages Brownfield Redevelopment

  • By: Nate
  • Since 2002, a bona fide prospective purchaser (BFPP) of a brownfield property could avoid Federal liability for investigation and cleanup if they performed appropriate Due Diligence. This process typically begins with an All Appropriate Inquiry (AAI) or ASTM Phase I Environmental Site Assessment (ESA) performed prior to the purchase of a property. Until now, the […]

EPA Updates Rule on Determination of Ignitable Hazardous Waste

  • By: Nick
  • Posted: 07/15/20

A solid waste is considered a hazardous waste if it is associated with a listing or a characteristic.  One of the four possible characteristics of a hazardous waste is ignitability.  The ignitability characteristic (D001) applies to various types of solid waste, one of which is a liquid that exhibits a flash point less than 140o […]

What Ambient Factors Contribute to Changes in Differential Pressure? Part 1

  • By: Craig
  • Posted: 06/26/20

USEPA and others in the vapor intrusion (VI) field have been evaluating a variety of Indicators, Tracers, and Surrogates (ITS) to assess their use in predicting the best time to collect representative indoor air samples for vapor intrusion studies (Schuver, et. al., 2018).  The idea is that if a predictive combination of easily obtainable, low […]

New Jersey Approves PFAS Drinking MCLs, Now What?

  • By: Doug
  • Posted: 05/27/20

Published in the May 2020 Focus on the Environment Newsletter Per-and polyfluoroalkyl substances (PFAS) compounds are man-made chemicals that have been used in numerous industrial processes and many consumer products such as cookware, stain resistant carpets, grease resistant food packaging, raincoats, makeup, and many others. PFAS compounds are persistent in the environment and have been […]

Promoting the Rule of Law Through Improved Agency Guidance Documents

  • By: George
  • Published in May 2020 Focus on the Environment Newsletter On October 9, 2019, the President of the United States signed Executive Order 13891, titled “Promoting the Rule of Law Through Improved Agency Guidance Documents.”  The Executive Order (EO) is the Trump Administration’s noteworthy effort to address the long-running problem of the use of guidance as […]

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