UST Rule Revisions to Take Effect June 30, 2018

Revisions to Indiana’s Underground Storage Tank rules adopted by the Indiana Environmental Rules Board in January, 2018 will be effective June 30, 2018.  The rule revision represents a shift in Indiana’s approach to regulation of USTs, as it incorporates most of the federal UST rules codified at 40 CFR Part 280 by reference, instead of containing the rule language within the text of Title 329 of the Indiana Administrative Code.  Indiana retains parts of its own rules for delivery prohibition (the “red tag” program), investigation and corrective action, closure, and financial assurance.

The rule revision also makes some substantive changes to current UST regulations, particularly by incorporating the changes to 40 CFR Part 280 as promulgated by the U.S. EPA in 2015.  Some of the changes in the pending rule revision include:

-Transition to U.S. EPA requirements for tank and piping performance standards

-Revised Certified Operator requirements, including enhanced training specifications

-Additional requirements for field-constructed tanks, airport fuel systems, and emergency generator tanks, which had been previously exempted from certain regulations under Indiana and federal law

-Elimination of the tangible net worth letter option for demonstrating financial assurance

-Notice to IDEM at least 30 days prior to switching to a regulated substance containing greater than 10 percent ethanol, greater than 20 percent biodiesel, or any other regulated substance identified by IDEM

The full text of the rule may be tracked at http://www.in.gov/legislative/iac/20171025-IR-329160204PHA.xml.html.

2018 Civil Monetary Penalty Inflation Adjustment Rule

On January 10, 2018, USEPA published the “Civil Monetary Penalty Inflation Adjustment Rule” (83 Fed. Reg. 1190) (“the 2018 Rule”) to adjust the statutory civil penalties under various environmental statutes administered by the agency. The 2018 Rule accounts for inflation since the last adjustment and is effective on January 15, 2018.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, title VII, sec. 701(b)) (“the 2015 Act”) was signed into law on November 2, 2015. The stated purpose of the 2015 Act was to improve the effectiveness of statutory maximum and minimum civil penalties and to maintain their deterrent effect in order to promote compliance with the law. The 2015 Act required USEPA and other federal agencies to make annual adjustments for inflation beginning in January 2017. To make the first annual adjustment, USEPA promulgated the 2017 Civil Monetary Penalty Inflation Adjustment Rule (83 Fed. Reg. 3633) (“the 2017 Rule”), which went into effect on January 15, 2017. The 2018 Rule makes the second annual adjustment.

Pursuant to the 2018 Rule, USEPA updated civil penalty amounts by multiplying the cost-of-living multiplier by the previous statutory penalty amount as adjusted by the 2017 Rule. The last column of the table below sets forth the new civil penalties under the CWA, RCRA, CAA, and CERCLA. A complete list of the updated civil penalties for all environmental statutes administered by USEPA is available at 83 Fed. Reg. 1193-94 and 40 CFR § 19.4. The new penalties apply to all violations occurring after November 2, 2015, where penalties are assessed on or after January 15, 2018.

USEPA’s New TSCA Inventory Notification (Active-Inactive) Requirements

On August 11th, 2017, USEPA published the “TSCA Inventory Notification (Active-Inactive) Requirements” (82 FR 37520) (“Active-Inactive Rule”) to require industry reporting of nonexempt chemicals manufactured, imported, or processed domestically over the past 10 years ending on June 21st, 2016.  

The Frank R. Lautenberg Chemical Safety for the 21st Century Act (the “Act”) was signed by President Obama and went into effect on June 22nd, 2016.  The Act amends and updates the Toxic Substances Control Act of 1976 (“TSCA”) and is the most recent environmental initiative to receive bipartisan support in both the U.S. House of Representatives and the Senate. (https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act).  In accordance with TSCA Section 8(b), USEPA is required to update and publish a list of each chemical substance that is manufactured, imported, or processed in commerce on the TSCA Inventory (chemicals of concern).  There are currently about 85,000 chemicals listed on the Inventory.

To strengthen the management of chemicals, the Lautenberg Act requires USEPA to issue a final rule which informs the prioritization of chemicals for risk evaluation and helps the agency to designate substances on the Inventory as “active” or “inactive” in U.S. commerce.  USEPA promulgated the Active-Inactive Rule to accomplish this.

Who is affected?

The rule may affect persons who “domestically manufactured, imported, or processed a chemical substance” designated on the Inventory for “nonexempt commercial purpose during the 10-year time period, ending June 21st, 2016.”  82 FR 37521.  The rule also may affect persons who “intend to domestically manufacture, import, or process” such chemical substance in the future.  Id.

What are the reporting requirements?

The agency has delineated two different notification scenarios under this rule: retrospective reporting requirements and forward-looking reporting requirements.  The retrospective reporting requirements apply to “chemical substances listed on the Inventory that were manufactured or processed for nonexempt commercial purposes in the U.S. over the past 10 years, ending on June 21st, 2016.”  82 FR 37523.  The agency refers to this 10-year period as the “lookback period.”   Alternatively, the forward-looking reporting requirements apply to “substances listed as inactive on the Inventory that are to be reintroduced into U.S. commerce for nonexempt purposes.”  82 FR 37523.

What information is to be reported?

USEPA has created two versions of a Notice of Activity (“NOA”) reporting form: the Notice of Activity Form A will be used for retrospective reporting, while the Notice of Activity Form B will be used for forward-looking reporting.  USEPA will use the information received from the reporting to designate as “active” those substances on the Inventory for which the agency received notices.  If the agency does not receive any notices, then that substance will be designated as “inactive.”

NOA Form A (Retrospective): Manufacturers and importers who produced a chemical substance subject to commercial activity designation for a nonexempt purpose at any time during the “lookback period” are required to complete and submit Form A.  Processors have the option to voluntarily report under Form A during the retrospective reporting period, but are not required to do so.  The company will be required to provide information including: the company name, official technical contact, CASRN, CA Index name, Accession No., required certification statements, and whether the company seeks to maintain an existing claim for protection against disclosure of confidential business information (“CBI”) chemical identity.  See 82 FR 37541.

NOA Form B (Forward-Looking): Persons who intend to manufacturer, import, or process an inactive substance for a nonexempt purpose after the effective date of the agency listing that substance as inactive must complete and submit Form B.  The company will be required to provide as the information described above for the Form A as well as the anticipated date of manufacturing or processing for a nonexempt commercial purpose.  See 82 FR 37541.

 Confidential Business Information (CBI): USEPA states that notices under the Active-Inactive Rule may contain two types of CBI claims: claims for protection of information other than specific chemical identity, and requests to maintain existing claims for protection of specific chemical identity.  82 FR 37527.  For the former, the person claiming CBI must provide a specific certification statement describing the basis for the CBI claim, and the claim must be substantiated at the time of submission.  Id.  For the latter, USEPA will allow any manufacturer or processor submitting a NOA to seek to maintain an existing CBI claim for specific chemical identity, regardless of whether that person asserted the original CBI claim for the substance.  Id.  The agency also states that it will move an active substance from the confidential portion of the Inventory to the non-confidential portion if no NOA requests are received to maintain the existing CBI claim for the specific chemical identity of that substance.  Id.

 How is this information submitted?

All reports are to be submitted electronically through USEPA’s Central Data Exchange (“CDX”) system and Chemical Information Submission System (“CISS”).  82 FR 37526.

Records related to retrospective notifications must be kept for a period of 5 years beginning on the last day of the submission period, while records related to forward-looking notifications must be kept for a period of 5 years beginning on the date that the notice was submitted.  See 82 FR 37543.

 When is reporting due?

The final rule was published on August 11th, 2017.  For retrospective reporting requirements, this publication initiates a 180-day reporting period for manufactures and importers.  This means that notices are due February 7th, 2018 for manufactures and importers.  This publication also contains a provision that initiates a voluntary 420-day reporting period for processors.  These notices are due October 5, 2018 for processors.  See 82 FR 37524.

The reporting period for forward-looking requirements is effective as soon as USEPA finalizes and publishes its active/inactive substance designations of the Inventory after June 2018. Forward-looking reporting must be submitted to USEPA not more than 90 days before the anticipated date of manufacturing, importing, or processing. See 82 FR 37524.

What to expect

Despite the Trump administration’s proposal to substantially cut funding for most USEPA programs, the agency anticipates that the proposed federal budget will actually increase funding to $65 million in FY 2018 for the TSCA Chemical Risk Review and Reduction Program.  See EPA Budget in Brief, EPA-190-K-17-001 (FY 2018), p. 22.  The Agency also states that it plans to begin collecting new TSCA Service fees beginning in the second quarter of FY 2018, which will help fund 53.6 Full-Time Equivalent (“FTE”) staffers that were formerly funded by annual appropriations.  Id. at 67.  Thus, while generally the expectation is a significant pull-back of USEPA oversight or activity in nearly all other regulatory areas under this administration, we may in fact see an increased focus by USEPA in the area of toxic chemical review and regulation.

U.S. EPA and U.S. Army Corps of Engineers Announce Proposal to Rescind the 2015 Clean Water Rule

On June 27, 2017, the U.S. EPA and U.S. Army Corps of Engineers (U.S. ACOE) released a pre-publication version of their proposal to rescind the 2015 Clean Water Rule.  Publication of the proposed rule in the Federal Register will mark the initial step in a two-step rulemaking process to first retract the 2015 Clean Water Rule, which defined “waters of the United States” (or “WOTUS”), and then replace that definition.

The Clean Water Act prohibits the discharge of any pollutants, including dredged or fill material, to “navigable waters” except in accordance with the Act.  The CWA defines “navigable waters” very simply as “waters of the United States, including the territorial seas.”  Over the years, the simplicity of this definition has engendered layers of regulatory definition, guidance, and federal case law about what exactly is a “water of the United States.”  As the agencies’ proposal notes, in the late 1980’s U.S. EPA and U.S. ACOE adopted substantially similar definitions of WOTUS, and federal courts then gave more shape and context to those definitions; in the proposal the agencies identify three U.S. Supreme Court cases which set the bounds of CWA jurisdiction prior to the 2015 Clean Water Rule:  United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and perhaps most significantly, Rapanos v. United States, 547 U.S. 715 (2006).  In response to the Rapanos decision, the agencies issued joint guidance in 2007 (revised slightly and reissued in 2008) which provided additional agency instruction on WOTUS. 

Since issuance of the 2008 guidance the agencies had been working on rule changes defining the scope of federal CWA jurisdiction, culminating in the 2015 Clean Water Rule.  The Rule contained a new definition of WOTUS and was immediately met with multiple challenges in federal courts across the country, from states, industry, and environmental groups.  In October 2015, the United States Court of Appeals for the Sixth Circuit issued a stay of the rule, postponing its implementation nationwide.  Without delving into the legal minutiae, the rule remains stayed while the U.S. Supreme Court prepares to hear arguments on the Sixth Circuit’s jurisdiction over the case – another hurdle before the federal courts can decide the actual merits of the various rule challenges.

Meanwhile, the current administration is moving ahead with its commitment to rescinding the Clean Water Rule, as outlined in a February 28, 2017 Executive Order titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  In its proposal, the agencies note that they have the authority to rescind and revise the rule based on a “re-evaluation of policy,” so long as the revision is itself authorized under the law and reasonable. 

Because of the stay currently in place, the regulatory regime governing WOTUS is that which was in place prior to the adoption of the 2015 Clean Water Rule – the prior regulations, the U.S. Supreme Court cases noted above, and the agency guidance including the 2008 guidance.   It is the agencies’ intent to retain that regime up until the time it is replaced with this administration’s own rule defining WOTUS.  Thus, the June 27, 2017 pre-publication version of their proposal seeks to rescind the 2015 Clean Water Rule and simply replace it with the regulatory text in place prior to that rule.  The proposal notes that although this is exactly the regulatory regime in place today due to the Sixth Circuit’s stay, this first step is nonetheless needed to ensure that remains the case even if the legal proceedings result in the nationwide stay being lifted or force other changes which could leave the regulated community subject to a patchwork of disparate regulations.  

Once this first rulemaking is complete, next will be a separate notice-and-comment rulemaking to develop and propose a new definition of “waters of the United States.”  The current proposal does not offer specific changes the agencies anticipate making at that step, but broadly outlines some concepts which the administration believes should play a larger role in the WOTUS definition.  Taken together, they suggest that the administration is seeking to limit federal jurisdiction and rely more on states and tribes to regulate waters within their respective jurisdictions.  For example, the proposal highlights text from Section 101(b) of the Clean Water Act regarding the role of states in regulating land and water resources:

In addition to the objective of the Act and the goals and policies identified to help achieve that objective in section 101(a), in section 101(b) Congress articulated that it is “the policy of the Congress” to:

[R]ecognize, preserve, and protect the primary responsibility and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.  It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title.

Therefore, as part of the two-step rulemaking, the agencies will be considering the relationship of the CWA objective and policies, and in particular, the meaning and importance of section 101(b).

Pre-Publication Version of Proposed Rule: Definition of "Waters of the United States" - Recodification of Pre-existing Rules, p. 13 (June 27, 2017) (internal citations omitted).  It appears that the agencies plan to also undertake a review of state regulation of non-jurisdictional waters: 

In the two-step rulemaking process commencing with today’s notice, the agencies will more fully consider the policy in section 101(b) when exercising their discretion to delineate the scope of waters of the U.S., including the extent to which states or tribes have protected or may protect waters that are not subject to CWA jurisdiction. 

Id. at 14.  The proposal doesn’t provide any details on this facet of their review; it may be that the agencies will be considering what regulatory framework is left if some classes of waters are removed from federal jurisdiction.  The agencies also anticipate incorporating the federal jurisdictional principles outlined by Justice Scalia in the Rapanos decision, which some view as potentially limiting the scope of the WOTUS definition under the current regulatory regime. 

The proposal makes clear that the agencies are not soliciting comments on the pre-2015 definition of WOTUS or any revisions to the scope of that definition; for now, the agencies are seeking public comment only on “whether it is desirable and appropriate to re-codify in regulation the status quo as an interim first step pending a substantive rulemaking to reconsider the definition of ‘waters of the United States’ and the best way to accomplish it.”   Id. at 18.  The nation will have to wait for the second rulemaking to see what the current administration ultimately emphasizes in its WOTUS policy. 

Publication of this proposal in the Federal Register will mark the beginning of a 30-day public comment period.         

IDEM Seeking Comments on a Newly Developed ELTF Claims Application

The Indiana Department of Environmental Management (IDEM) is accepting comments on a newly developed Draft Excess Liability Trust Fund (ELTF) Application that will be required for all costs incurred on or after July 1, 2017.  The Draft Application incorporates a phase-based format and would require the applicant to identify all phases of work associated with the pay request – whereas, the current version of the ELTF Application requires the applicant to identify the most recent technical determination.  The phases listed in the Draft Application include: immediate response; site characterization and corrective action plan development; corrective action plan implementation; groundwater monitoring and remediation system O&M; and closure. 

Comments must be submitted to IDEM no later than June 2, 2017 at noon.  IDEM will evaluate the comments and make the final version of the Draft Application available by July 1, 2017.  Additional information regarding the Draft Application and how to submit comments can be found on IDEM’s website.

Indiana General Assembly Repeals AST Registration Law

The Indiana General Assembly recently repealed the Aboveground Storage Tank (AST) reporting obligations contained in Ind. Code 13-18-5.5.  Senate Enrolled Act 421 was signed by the Governor on April 13, 2017.  The General Assembly had previously adopted Ind. Code 13-18-5.5 in 2015 following a release from an AST to the Elk River that impacted public water supplies in the area of Charleston, West Virginia.

In addition to repealing Ind. Code 13-18-5.5, SEA 421 provides that a public water supply “may gather information from potential sources of contamination" for inclusion in the public water supply's surface water quality threat minimization and response plan.  The public water supply may exempt this information from disclosure under the Access to Public Records Act.

Finally, SEA 421 recommends that regulation, reporting, and emergency planning issues related to ASTs be considered for legislative study.

SEA 421 will become effective July 1, 2017.  The text of SEA 421 may be found online at:  https://iga.in.gov/static-documents/0/0/1/8/00186600/SB0421.05.ENRH.pdf.

U.S. EPA May Soon Limit Trichloroethylene Uses

EPA has recently proposed rules under the agency’s Toxic Substances Control Act (TSCA) authority aimed at banning the future use of trichloroethylene (TCE) in vapor degreasing operations, in aerosol degreasers and in spot cleaners for dry cleaning.  If finalized, the rules would prohibit the manufacture, importation, distribution or commercial use of TCE for the above purposes.  While TCE use in the U.S. has dropped significantly over the past thirty years, a number of commercial and industrial operations still utilize TCE as a degreasing agent.  EPA proposed these two rules primarily to protect workers from adverse health effects noted in a June 2014 health assessment done under TSCA authority, although TCE also has a long history of causing sometimes significant contamination in soil and groundwater, and in the past decade or so TCE has frequently been linked to vapor intrusion problems within buildings sitting on or near property contaminated with TCE.

Congress amended the TSCA statute itself in June 2016 to broaden EPA’s authority over the review of chemicals used in the U.S.  The changes to TSCA were noteworthy both because they enjoyed bipartisan support in a very partisan Congress and because environmental statutes have only rarely been amended over the past couple decades.  As one of the first uses of its expanded TCSA authority, EPA announced in November 2016 that it would evaluate human health risks associated with ten chemicals – a list which included TCE.  In addition to these two recently proposed rules, EPA will be evaluating all other TCE uses under that separate November 2016 announcement.

The proposed rules regarding TCE uses can be found at 81 Fed. Reg. 91592 (Dec. 16, 2016) and 82 Fed. Reg. 7432 (Jan. 19, 2017).  On February 15, 2017, shortly after the change in administrations, EPA extended the comment periods for the proposed rules to March 16 and April 19, 2017, respectively.  While many proposed rules issued toward the end of the Obama administration’s tenure have been targeted by the Trump administration for significant change or repeal, the fates of these TCE-related proposed rules and of other EPA actions under the expanded TSCA are unclear.

General Assembly Overrides Governor Pence’s Veto of Its “No More Stringent Than” Legislation

Originally passed by the General Assembly in 2016 but vetoed by then-Governor Pence, House Enrolled Act (HEA) 1082 called for a process where new IDEM rules determined to be more restrictive than federal standards would not become effective until the end of the next legislative session, providing lawmakers the chance to review those proposed stricter rules.  In February 2017, both the House (65-29) and the Senate (49-1) voted to override Governor Pence’s 2016 veto.  In Indiana, the General Assembly can override a veto with a simple majority, meaning HEA 1082-2016 is now law roughly a year after its original passage. 

The early drafts of the 2016 legislation would have presented a greater bar to IDEM adopting any rules which were more stringent than federal rules.   While there was support for this by many members of the regulated community, others viewed it as giving up the state’s right to address its own environmental concerns.  Subsequent amendments by the Senate – including that “more stringent” IDEM rules would merely be delayed rather than forbidden – resulted in what proponents considered to be a reasonable compromise.  However, the Flint, Michigan water crisis loomed large in the background.  Citing his concern that HEA 1082 would hinder IDEM’s ability to act in environmental emergencies like the Flint crisis, Governor Pence vetoed the bill. 

While the law does carve out from this “more stringent than” review certain emergency rules or actions, the effect that this new law may have on IDEM’s broader ability to regulate in Indiana is unclear.  The law also requires IDEM to include in an annual report to the Legislative Services Agency any new or altered operating policy or procedure and any proposed or newly effective nonrule policy or statement “that constitutes a change in the policy previously followed by [IDEM].”  While these policy changes do not appear to be subject to the implementation delay now required for IDEM rules, they will now be subject to the broader political process, where more scrutiny by interested parties can be expected.

Bruno Pigott Named New IDEM Commissioner

Bruno Pigott has been appointed by Governor-elect Eric Holcomb to serve as Commissioner of the Indiana Department of Environmental Management.  Mr. Pigott currently serves as IDEM Chief of Staff.  He will replace outgoing Commissioner Carol Comer effective January 9, 2017.

 Mr. Pigott graduated from Michigan State University and holds a Master’s degree from the School of Public and Environmental Affairs at Indiana University–Purdue University Indianapolis.  He has worked at IDEM since 2000, beginning in the Office of Water Quality as Section Chief of the State Revolving Loan Fund Program.  He also served as Chief of the Compliance and Permits Branches of the Office of Water Quality.  He was promoted to Assistant Commissioner of the Office of Water Quality in 2005, serving in that capacity until being named Chief of Staff in 2015.

 

IDEM Modifies Voluntary Remediation Agreement Language

IDEM recently announced a number of changes to its standard voluntary remediation agreement (VRA) applicable to all new VRP sites. The new document significantly curtails the dispute resolution process available to VRP participants, introduces new milestones and deadlines for plan submittal and implementation, and restates the conditions under which IDEM can terminate VRP participation.

Under the new terms, there is now a 60 day timeframe for submittal of an investigation plan or report, and a new requirement that a site be delineated within 2 years.  A remediation work plan must now be submitted within 60 days of IDEM's determination that a site has been delineated.  IDEM’s website explains that "specific revisions to the required Scope of Work (Exhibit A of the VRA) are intended to facilitate more timely progress towards closure for VRP sites."

The new VRA substantially limits the previous dispute resolution process by eliminating the option of utilizing a mediator, and only a 15 day "informal" dispute resolution period remains.  IDEM has also restated the conditions under which VRP participation can be terminated, such as for failure to "substantially comply" with an approved work plan or the VRA.

Other changes include revised language regarding responsibility for RCRA corrective action and a specific reference to IDEM’s new access policy.  Annual progress reports are also now required, which IDEM states are intended to ensure compliance with the project schedule.  Additionally, the VRA adds a provision stating that IDEM must pre-approve changes to the scope of work.

Finally, note that IDEM has attempted to incorporate some of these terms into law through HB 1299, which is under consideration by the General Assembly.

IDEM’s new VRA may be found online at http://www.in.gov/idem/landquality/files/vrp_agreement.pdf.  

Update on IDEM Underground Storage Tank Program Staff

IDEM has recently undertaken changes to the organization and management of the Underground Storage Tank (UST) Program.  Amy Smith has recently been named Deputy Assistant Commissioner of the UST Branch in the Office of Land Quality.  Ms. Smith formerly served at IDEM as a Leaking UST Project Manager and later as an Aattorney for the UST Program, and returns to IDEM from private legal practice.

The UST Program is now organized into sections for UST Compliance and Inspections, Leaking USTs, and Excess Liability Trust Fund (ELTF) Claims.  Notably, there will no longer be separate sections handling ELTF-eligible and non-ELTF Leaking UST cleanups.  Tim Veatch, formerly Leaking UST Section Chief, now leads the combined Leaking UST Section.  Brian Pace continues as Section Chief of the ELTF Claims Section.  Tom Newcomb is now Section Chief of the UST Compliance and Inspections Section.  UST enforcement continues to be managed as a part of the Compliance and Response Branch, a separate branch within the Office of Land Quality.

IDEM has indicated that with the new leadership, additional changes are expected to all aspects of the UST Program, and that IDEM will continue to provide updates.

Information on IDEM’s UST Programs may be found online at http://www.in.gov/idem/landquality/2336.htm.

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