Recent Regulatory Actions with Wide-Ranging Impact



In the final months of the Obama administration, the U.S. Environmental Protection Agency (EPA) finalized several important environmental rules that may affect many facilities across many industries, including new rules on refrigerant management, risk management planning, greenhouse gas (GHG) reporting, and electronic reporting under the New Source Performance Standards.  The implications of these rules, assuming they are not rolled back, are discussed below.

Broad New Refrigerant Management Requirements

refrigerationOn November 18, 2016, EPA published the final rule, Protection of Stratospheric Ozone: Update to the Refrigerant Management Requirements under the Clean Air Act in the Federal Register (81 FR 82272).  These updates, which represent a major overhaul of the provisions of 40 CFR Part 82, Subpart F, were originally proposed on November 11, 2015.  The final rule, which includes numerous changes to the proposed rule in response to comments received, became effective January 1, 2017, with varying compliance dates, depending on the provision, of January 1, 2017; January 1, 2018 (one year after effective date); and January 1, 2019 (two years).  Important changes in the final rule are listed below, with applicable compliance dates indicated.

  • Significant expansion of the applicability of the rule to refrigerants containing non-ozone depleting substances (ODS), including clarification of "exempt substitutes" and "non-exempt substitutes" in order to better identify which non-ODS substitutes are exempt and are not subject to any provisions of the rule (compliance date varies depending on provision)
  • Imposition of additional recordkeeping requirements for disposal of small appliances when the full charge leaked out due to unavoidable occurrences (1/1/2017) and for disposal of appliances with full charge > 5 pounds and < 50 pounds (1/1/2018)
  • Lowering of allowable leak rate thresholds from 35% to 30% for industrial process refrigeration appliances, from 35% to 20% for commercial refrigeration appliances, and from 15% to 10% for comfort cooling and other appliances (1/1/2019)
  • Triggering of leak inspection requirements if the leak rate exceeds the lower allowable leak rate thresholds in the rule; frequency of required inspections dependent on type and full charge of appliance (1/1/2019)
  • Establishment of annual "significant leaker" reporting provisions for units that leak ≥ 125% of full charge in a calendar year (1/1/2019)
  • Expansion of the applicability of initial and follow-up verification testing requirements to commercial refrigeration, comfort cooling, and other appliances, and reduction in the time allowed for follow-up verification tests to be performed from 30 days to 10 days after a successful initial verification test (1/1/2019)
  • Significant expansion of explicit recordkeeping requirements under the leak repair provisions (1/1/2019)

Under the new rule, EPA anticipates that more consistent and better treatment practices for commonly used refrigerants will reduce annual GHG emissions by 7.3 MMTCO2eq.  Affected facilities should perform a gap analysis of their current refrigerant compliance program and the revised rules, update internal policy and procedure documents, and train internal personnel and contractors involved with the refrigerant compliance program on the specifics of the revised rule.

Risk Management Program Updated

risk management program man woman

On January 13, 2017, the final version of the Risk Management Program (RMP) Rule was published in the Federal Register (82 FR 4594).  The revised rule effective date of March 14, 2017 was delayed by the new Administration until March 21, 2017, with the major changes in requirements becoming effective as summarized below.  On January 20, 2017, the new Administration signed a memo instituting a regulatory freeze pending review.  Because the RMP rule was published in the Federal Register, the initial effective date will be temporarily delayed to March 21,2017.  Compliance dates in Table 1 are not affected.

Based on public comment, several notable changes were made from the proposed rule published on March 14, 2016 (81 FR 13637), as outlined below.

 

 eq 2017 winter article1 table1

Previously proposed changes that are deleted from the Final Rule

  • Modification to the definition of "Catastrophic Release" that would have matched the definition of an RMP-reportable accident
  • Requirement for site to act as a "responding" site to releases of covered chemicals if emergency response coordination efforts cannot confirm local response capabilities are sufficient or upon written request from Local Emergency Planning Committees (LEPC)or local emergency responders
  • Requirement to identify the root cause of an RMP-reportable accident and the site-specific Recognized and Generally Accepted Good Engineering Practices (RAGAGEP) and certification to those standards, and confirmation of "response capabilities" in the site's online Risk Management Plan (RMPlan)
  • Impartiality requirement for third-party auditor and team
  • Requirements for third-party audit reports to be maintained by the auditor for five years, available (draft) and submitted (final) to the agency
  • Requirement for a Professional Engineer (P.E.) as third-party auditor
  • Requirement for a field exercise within one year of an RMP-reportable accident
  • Requirement for chemical hazard information to be submitted to the LEPC or local emergency responders (now discussed within the section on emergency response coordination exercises)
  • Requirement for chemical hazard information to be updated annually and always available to the public (now to be provided upon public request)

Previously proposed changes that are modified in the Final Rule

  • Root cause definition no longer includes the phrase "that identifies a correctable failure in management systems."
  • Third-party audit teams now have competency and independence requirements for Auditor (lead) and independence requirements for the Audit Team members.  Independence requirements cover the two (not three) years before and after the audit event.  Audit team can contain personnel from other firms and the facility.  Facility retirees may act as a third-party auditor or team member even if they receive retirement compensation.
  • Third-party audit reports must contain or reference the audit policies or procedures and only summarize significant revisions between the draft and final reports.  They are now due within 12 months of either the RMP-reportable accident or the final determination/appeal decision from the requiring agency.  Site must maintain only the two most recent final audit reports, related findings response reports, documentation of actions to address deficiencies, and related records.
  • Emergency response coordination requirements are clarified for non-responding and responding sources, still required at least annually for all sources.  Emergency response program must now be reviewed and updated "as appropriate" instead of annually.  Response to an actual accidental release can be used as a coordination, tabletop, or field exercise if the associated response and exercise evaluation report requirements are met within 90 days of the event.
  • For responding sites, tabletop exercises are required at least every three years instead of annually and require discussions (instead of tests) of notification and emergency response steps, including equipment and contractor deployment.
  • For responding sites, field exercise requirements are clarified and required at least every 10 (not five) years.
  • RMPlan updates now require only date of most recent coordination, field, and tabletop exercise without a certification statement on the "response capabilities."  Non-responding sites must specify what mechanisms are in place to notify the public and emergency responders when there is a need for emergency response.
  • The site must provide ongoing notification on a company website, social media platform, or through other publicly accessible means, of a list of the type of chemical hazard information available and how to request it.  Chemical hazard information must be provided to the public within 45 days of a request.
  • Public meeting must be held within 90 (not 30) days of an RMP-reportable accident.

Affected facilities face significant challenges to prepare for compliance with the new requirements.  To address these challenges, facilities should take the steps outlined below.

  • Develop and conduct emergency response coordination, field, and tabletop exercises, based on the site's responding status
  • Develop and train employees on, or identify contractors for, root cause analysis methods for incident investigations
  • For affected NAICS codes 322, 324, and 325, develop and train employees on, or identify contractors for, Safer Technologies and Alternatives Analysis
  • Develop process safety information for site covered processes to be shared with LEPC and public (upon request)
  • Discuss and develop internal documents clarifying a "near miss" definition triggering incident investigation for site processes
  • Discuss and develop site's planned approach if a third-party audit is triggered, including identifying team composition (internal and contractor) and training, if needed

Greenhouse Gas Reporting Rule Changes

ghg smoke stacksOn December 9, 2016, EPA finalized a rule to amend 29 of the 46 subparts under the Mandatory Greenhouse Gas Reporting Rule (MRR) (40 CFR Part 98). The amendments focus on several objectives:

  • Streamlining implementation and improving data quality and consistency;
  • Updating provisions to better reflect certain industries' processes and emissions;
  • Amending confidentiality provisions related to the amendments; and
  • Finalizing revisions to Subpart HH – Municipal Solid Waste Landfills related to soil cover requirements and associated oxidation fractions.

The changes range from minor corrections and clarifications to significant modifications regarding applicability and emission calculation and monitoring methodologies.  Compliance with the amendments is being phased in over multiple years (reporting year [RY] 2016 through 2018) according to the subpart affected.  See Table 2 below for immediate changes that affect the upcoming reporting deadline of March 31, 2017, and the subsequent reporting deadline of April 2, 2018. 

 eq 2017 winter article1 table2

As summarized in the following tables, the type of amendment dictates how and when it must be addressed.  For example, some monitoring requirement amendments become effective January 1, 2018, but the annual report that reflects those changes isn't due until April 1, 2019 (see Table 3 below), so facilities will have time to incorporate the changes during calendar year 2018.  Other amendments, such as changes to emission calculation equations, are effective immediately for the upcoming reporting deadline on March 31, 2017.  For example, Subpart I (Electronics Manufacturing) has been amended with respect to several emission equations, and EPA expects facilities to address this type of amendment immediately, in the next annual report (see Table 2).

 eq 2017 winter article1 table3

Facilities subject to Subparts I (Electronics Manufacturing), FF (Underground Coal Mines), and HH (Municipal Solid Waste Landfills) should immediately take note of the changes in Table 2, which are effective as of January 1, 2017.  Facilities subject to the subparts listed in Tables 3 and 4 should understand how the amendments will change upcoming activities such as monitoring, data collection, and emission calculations.  Certain amendments also expand rule applicability for Subpart V (Nitric Acid Production) and Subpart OO (Suppliers of Industrial Greenhouse Gases) to additional facilities, but these applicability amendments will not be phased in until RY 2018.

 

 eq 2017 winter article1 table4

 

Facilities that undergo changes to monitoring activities will likely need to update their Monitoring Plans required per §98.3(g)(5).  Facilities newly subject to the rule due to the applicability changes in Subparts V and OO will need to develop initial Monitoring Plans as well.

New NSPS Electronic Reporting and Recordkeeping Requirements

On December 21, 2016, the New Source Performance Standards (NSPS) Electronic Reporting and Recordkeeping Requirements Rule was signed by EPA Administrator Gina McCarthy.  The rule alters the NSPS General Provisions (40 CFR 60 Subpart A) and certain subparts to include requirements for submitting specified reports electronically through EPA's Central Data Exchange (CDX) – Compliance and Emissions Data Reporting Interface (CEDRI).  The following reports will be subject to the proposed electronic submittal requirements:

  • Summary reports and/or excess emissions and monitoring reports for continuous monitoring systems (CMS);
  • Performance test reports;
  • Performance evaluation reports/relative accuracy test audit (RATA) reports; and
  • Subpart-specific reports (e.g., semiannual reports, annual reports, etc.).

The rule does not require any additional reporting, but does alter the format of the reports.  (Facilities will still be required to submit reports regularly to their state/local agency in the format requested by their respective agencies.)  Data from these reports will be used by EPA to update emission inventories and emission factors and will be accessible to the public through the Internet.  Please note that certain NSPS subparts are not impacted by this rule, including many of the boiler subparts (Subparts D, Da, Db, and Dc).

The initial compliance date for the performance test and performance evaluation report/RATA reports will be 90 days after the final rule is published in the Federal Register.  For these reports, facilities will be required to create an electronic version of performance test/RATA plans and results using EPA's Electronic Reporting Tool (ERT).  This "ERT Package File" must then be uploaded in CEDRI and submitted by the facility.

The summary reports, excess emission and monitoring reports, and subpart-specific reports must be completed using forms within the CEDRI system.  The initial compliance date for these reports will be two years after the date of publication of the final rule in the Federal Register or one year following the date the reporting form becomes available in CEDRI, whichever is later.  At this time, forms for all affected reports may not be available in CEDRI.

To prepare for the NSPS electronic reporting rule, facilities should assess and determine the specific requirements that apply to emission units at their facilities.  Many facilities will need to arrange to have an electronic ERT Package File prepared for certain 2017 performance tests and RATAs if the rule is published in the Federal Register in the coming months.

Note:  On January 20, 2017, the new Administration signed a memo instituting a regulatory freeze pending review.  Because the NSPS electronic reporting rule had not yet been published in the Federal Register, EPA is required to immediately withdraw it for review and approval by the new EPA administrator.  This action may result in the delay, modification, or cancellation of the rule.

For questions regarding these wide-ranging rules or assistance with determining their applicability for your facilities, contact your local Trinity office at (800) 229-6655.