The Associated Press says that EPA will prevent the Texas Commission on Environmental Quality (TCEQ) from issuing an air emissions permit for the Flint Hills (Koch Industries) Refinery in Corpus Christi. The permit will be issued directly by EPA and is likely to contain substantive differences from the permit proposed by TCEQ. Further, by June 30 EPA will invalidate 39 more air emissions permits affecting 140 plants in Texas as a result of a dispute between EPA Region 6 and the TCEQ. Al Armendariz, [EPA Region 6 Administrator] said the EPA will issue its own permit for the independently owned Flint Hills Corpus Christi East Refinery, and in the coming days begin to do the same for 39 other plants, including facilities owned by Exxon Mobil Corp., Chevron Corp., ConocoPhillips and Dow Chemical Co. The EPA objected to 40 permits issued by Texas late last year, Armendariz said, partly because they included so-called “flexible permits” that the agency says allow the industry to emit more pollutants than allowed under the federal Clean Air Act. Texas created its flexible permit system in 1994, but it was never officially approved by the EPA. AP further stated that at least five years [may be
Read more →Our last entry discussed the concept of “Black Swan” events, a term created by noted author Nassim Nicholas Taleb to describe an event that is (a) so low in probablility that it is unforeseeable and (b) so catastrophic in impact that it changes history. Certainly, risk assessments are predictive in nature and no one can predict the future with complete certainty. But in our view, one of the best tools available for risk assessments is an open mind. This can be a challenge in the EHSS world as we generally have engineering and other technical backgrounds. We have been trained to seek absolutes and eliminate uncertainties. At Elm, we believe that involving external support helps to identify and explore events (and their related exposures) that are relevant but get “technically rationalized” by internal staff. With the BP oil spill and the December 2008 Kingston, Tennessee coal ash pond failure, we began thinking about some of the Black Swan events discussed with clients in the past. Below are a handful of EHSS Black Swan risk events that we have discussed with clients over the past years – and some that are currently on our mind. Radical change in EPA’s regulation of coal
Read more →OSHA has released the directive concerning its Severe Violator Enforcement Program (SVEP). It can be read here.
Read more →The law firm of Morgan, Lewis & Bockius LLP has published details about the upcoming OSHA Severe Violator Enforcement Program (SVEP). The SVEP has been in development for more than a year, but Morgan Lewis indicated that a 27-page draft Directive was sent from OSHA to state officials in early April. Highlights from the Morgan Lewis review: According to the draft Directive, the SVEP will “focus increased enforcement attention on significant hazards and violations” by concentrating on employers that have demonstrated “indifference” to workplace safety obligations through willful, repeated, or failure-to abate-violations in four areas: (1) fatality or catastrophe situations; (2) industries that expose employee to the most severe hazards, including those identified in the draft Directive as “High-Emphasis Hazards”; (3) industries that expose employees to the potential release of highly hazardous chemicals; and (4) egregious enforcement actions. Once an employer is selected for the SVEP, OSHA will undertake a number of enforcement steps including enhanced follow-up inspections as well as inspections at other worksites of that same employer, potentially on a nationwide basis… OSHA will consider any inspection that meets one or more of the following criteria as a candidate for the SVEP: Fatality/Catastrophic Criteria. A fatality/catastrophe inspection in
Read more →The environmental newsletter of the Association of General Contractors (AGC) sheds some light on the status of EPA’s developing regulation of coal ash or coal combustion products (CCP). The newsletter indicated that the agency expects to release a rulemaking on coal combustion residuals (or waste) in April 2010, with a hazardous designation reported likely. CCP has been exempted from regulation as a hazardous waste through an interpretation of existing hazardous waste law. Under that interpretation, coal ash was “pardoned” as part of the “Bevill Amendment” – a 1980 amendment to the federal waste management legistration that excluded from regulation certain mining and mineral processing waste. The amendment also mandated that EPA conduct a study to determine how to manage CCP. The study was completed and the findings were presented to Congress in 1988 and again in 1999 – both times, EPA recommended that CCP not be regulated as hazardous waste. Two regulatory determinations were subsequently published – one in 1993 and one in 2000, both again affirming that regulation of CCP as hazardous waste was not warranted. Although EPA has not yet released its proposed regulation, AGC’s article stated that sources indicate that EPA is strongly favoring a hazardous waste
Read more →EPA announced two more major Clean Air Act enforcement settlements today that stemmed from the Agency’s long-standing industry New Source Review (NSR) enforcement initiatives. Saint-Gobain Containers, Inc. of Muncie, Ind. agreed to install pollution control equipment at an estimated cost of $112 million to reduce emissions of NOx, SO2, and PM by approximately 6,000 tons each year. The settlement covers 15 plants in 13 states. This is the federal government’s first nationwide Clean Air Act settlement with a glass manufacturer that covers all of a company’s plants. In addition, as part of the settlement, Saint-Gobain has agreed to pay a $2.25 million civil penalty. Lafarge North America, Inc., based in Herndon, Va., and two of its subsidiaries agreed to install and implement control technologies at an expected cost of up to $170 million to reduce emissions of NOx by more than 9,000 tons each year and SO2 by more than 26,000 tons per year at their cement plants. In addition, as part of the settlement, Lafarge has agreed to pay a $5 million civil penalty. Companies potentially on EPA’s NSR radar screen should review their environmental audit programs to evaluate how critically the programs evaluate plant changes that could trigger
Read more →In case you haven’t yet seen it, EPA wrapped up the year with three significant announcements. First, the Agency published its 2009 compliance enforcement results. The summary statistics are here. A few points from their website In fiscal year (FY) 2009, the Environmental Protection Agency’s enforcement and compliance program concluded civil and criminal enforcement actions requiring polluters to invest an estimated $5.4 billion to reduce pollution, clean up contaminated land and water, achieve compliance and fund environmentally beneficial projects. Civil and criminal defendants committed to reduce pollution by approximately 570 million pounds annually once all required controls are fully implemented. Approximately 57% of pollution reductions and 71% of pollution control investments obtained through the Agency’s FY 2009 enforcement actions focused on water and air pollution priority problems. In FY 2009, EPA opened 387 new environmental crime cases, the largest number of criminal case initiations in five years. Second, EPA announced it has settled with Duke Energy to resolve violations of the Clean Air Act’s new source review requirements found at the company’s Gallagher coal-fired power plant in New Albany, Ind., located directly across the Ohio River from Louisville, Ky. The lawsuit was filed in 1999. Under the settlement, Duke will
Read more →The U.S. Environmental Protection Agency Administrator Lisa P. Jackson announced that the agency is stepping up its efforts on Clean Water Act enforcement. The plan announced outlines how the agency will strengthen the way it addresses the water pollution challenges of this century. These challenges include pollution caused by numerous, dispersed sources, such as concentrated animal feeding operations, sewer overflows, contaminated water that flows from industrial facilities, construction sites, and runoff from urban streets. The goals of the plan are to target enforcement to the most significant pollution problems, improve transparency and accountability by providing the public with access to better data on the water quality in their communities, and strengthen enforcement performance at the state and federal levels. Elements of the plan include the following: Develop more comprehensive approaches to ensure enforcement is targeted to the most serious violations and the most significant sources of pollution. Work with states to ensure greater consistency throughout the country with respect to compliance and water quality. Ensure that states are issuing protective permits and taking enforcement to achieve compliance and remove economic incentives to violate the law. Use 21st century information technology to collect, analyze and use information in new, more efficient
Read more →As EHS audit programs have matured over the past 25 years, most companies that have established such programs have generally achieved the desired goal of reduced violations and financial penalties. But in the current economic climate, companies have been looking at all costs and their justifications. EHS audit activities are also under the microscope. The reduction in noncompliance costs over time – a good thing – can sometimes trigger questions from senior management about what value EHS auditing is creating NOW – a bad thing. Answering such questions adequately depends on the individual company, but the threat of future violations (which are more likely to occur without corporate compliance oversight/auditing/reporting activities) is a common thread. Elm took a look back at USEPA’s enforcement announcements thus far in 2009 to see if any notable trends could be identified. Our review was not exhaustive and was limited to publicly available information on federal EPA activities. But there is no question that EPA’s 2009 data clearly show aggressive enforcement involving many multi-million dollar settlements. This summary information may be useful to those EHS audit programs that use enforcement data as an economic risk/value factor in rationalizing the continuation of audit activities. - Oct.
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