Updated as of February 2023
The Clean Air Act requires EPA to set national air quality standards (NAAQS) for particulate matter (PM) and five other pollutants considered harmful to public health and the environment. The law also requires EPA to periodically review the standards to ensure that they provide adequate health and environmental protection, and to update those standards as necessary.
On January 6, 2023, EPA announced its proposed decision to revise the primary (health-based) annual PM2.5 standard from its current level of 12.0 µg/m3 to within the range of 9.0 to 10.0 µg/m3 with public comments due. The agency is also taking comment on the full range (between 8 and 11 µg/m3) included in the Clean Air Scientific Advisory Committee’s latest report. In addition, EPA proposed revisions to related aspects of the PM NAAQS, including revisions to the Air Quality Index (AQI) and monitoring requirements.
EPA also proposed not to change the current secondary annual PM2.5 standard, the primary and secondary 24-hour PM2.5 standards, and the primary and secondary PM10 standards.
After reviewing the comments received, EPA plans to issue final standards later in 2023.
The Environmental Quality Board (EQB) proposed to amend Chapter 77 (relating to noncoal mining). The proposed amendments provide updates and clarifications for the requirements for mining noncoal in the Commonwealth.
The PA Department of Environmental Protection (DEP) worked with the Aggregate Advisory Board and PACA on these updates and clarifications.
This proposed rulemaking was adopted by the EQB at its meeting of November 17, 2020 and will go into effect upon publication of the final-form rulemaking in the Pennsylvania Bulletin. The proposed rulemaking went out for public comment on March 20, 2021. It has not made it as final-form rulemaking to the agenda of the EQB yet. DEP is anticipating this will be on the April EQB agenda. The final-form rulemaking package must be adopted by May 4, 2023 or the entire process will need to start all over again.
The U.S. Fish and Wildlife Service is delaying the effective date of the final rule to reclassify the northern long-eared bat from threatened to endangered under the Endangered Species Act. The agency is extending the effective date by 60 days, from Jan. 30, 2023, to March 31, 2023 purportedly to allow USFWS to finalize conservation tools and guidance to avoid confusion and disruption for landowners, federal partners and industry with projects occurring in habitats within the northern long-eared bat’s 37-state range.
There are three federal Executive Orders that refer to ‘cumulative exposures’ in promoting equal opportunity for underserved communities.
EPA’s FY 2022–26 Strategic Plan and EO 13985 Equity Action Plan, establishes goals and priorities specifically directed at addressing cumulative impacts in its actions in order to advance these federal environmental justice, equity, and civil rights policies. Furthermore, EPA’s Office of Research and Development has developed a definition of ‘cumulative impacts’ as ‘the totality of exposures to combinations of chemical and nonchemical stressors and their effects on health, well-being, and quality of life outcomes.’
On June 6, 2022, EPA’s Office of General Counsel released an updated legal ‘toolbox’ to assist the agency in protecting marginalized communities from pollution. Entitled ‘EPA Legal Tools to Advance Environmental Justice’, it is to be used to ensure compliance with the Biden Administration’s environmental justice efforts.
A follow up Cumulative Impacts Addendum builds on the discussion of cumulative impacts in EJ Legal Tools, providing further detail and analysis on EPA’s legal authority to address cumulative impacts, and providing examples that look at the scope of EPA’s authority to address cumulative impacts in specific scenarios for each major EPA program was released in January 2023. EPA believes these cumulative impact assessments can support actions under state, local, or tribal governments who have legal authorities to address matters such as zoning, land use, and local transportation that go beyond those provided by federal environmental laws.
The PA Department of Environmental Protection (DEP) Environmental Justice Policy issued in 2004, revised in 2018, was rescinded in October 2020. After reviewing all comments received on the 2018 revision, the Department decided to develop a policy that will focus on public participation, but also on integrating environmental justice into other Department practices and policies. It has not yet been issued.
Federal Clean Water Act (CWA) regulations require municipalities that meet certain size standards based on census data obtain NPDES permit coverage for discharges of stormwater from their municipal separate storm sewer systems (MS4s). Phase I of this requirement occurred years ago for large MS4s such as Philadelphia and Pittsburgh. Phase II includes small and medium size MS4s.
In PA, there are 1,059 small MS4s. The requirements include six Minimum Control Measures (MCMs). However, since many of these small MS4s are within the 43 counties within the Chesapeake Bay watershed and there is a TMDL for the Chesapeake Bay, these municipalities must also implement a Chesapeake Bay Pollution Reduction Plan. To implement the requirements, municipalities have begun assessing a “fee” to cover the costs.
A recent court case involving West Chester Borough and West Chester University has brought a potential positive action for our MS4 issues, with the judges indicating that the stormwater charges for West Chester University are actually unlawful taxes (not fees) that have not been enacted pursuant to proper authority or procedure or are otherwise unreasonable, because they are not proportional to the value of services provided. The Court, however, did not file a written opinion on this case. And while the result is persuasive, it cannot be used as a legal precedent when unreported.
PACA and the PA Chamber of Business and Industry have filed an Application to Report an Unreported Opinion with the Court February 3rd. The Court may decide then to file a written opinion.
The Borough of West Chester will be filing an appeal on the decision to the Supreme Court, and we and the Chamber will likely be filing an amicus brief in response to the Borough of West Chester’s appeal when that occurs.
PACA opposes MS4 fees for those facilities with NPDES permits and no discharge to stormwater systems.
Congress enacted the Federal Water Pollution Control Act Amendments in 1972, designed to establish an all-encompassing program of water pollution regulation. One of the central tenets of this Act is the term ‘‘navigable waters,’’ defined broadly in the Act as ‘‘the waters of the United States, including the territorial seas.”
On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a rule defining the scope of waters protected under the Clean Water Act (CWA). The proposed rule would revise regulations that have been in place for more than 25 years.
On January 18, 2023, the Biden Administration issued flawed and premature revised final regulations regarding the definition of “waters of the United States” with an effective date of March 20, 2023, applicable to all CWA programs. The final rule repeals the Navigable Waters Protection Rule (NWPR) and codifies a definition that the Agencies claim is “generally consistent with the pre-2015 regulatory regime.”
In October 2022, the Supreme Court heard the Sackett v EPA case regarding the extent of federal jurisdiction under the CWA over wetlands that are near but lack a surface water connection to traditionally navigable waters and their tributaries. This opinion has not been published yet. For years the “significant nexus” test has been used to determine jurisdictional waters of the United States. But the Biden Administration chose to publish the final WOTUS rulemaking and not wait for the Supreme Court’s opinion. Unless there is a judicial stay, this rule goes into effect March 20, 2023.
On January 18, 2023, NSSGA (National Stone Sand & Gravel Association) joined a coalition representing aggregates producers, farmers, home builders and others representing a broad swath of the U.S. economy in filing a complaint in the U.S. District Court, Southern District of Texas, Galveston Division challenging this premature and overreaching rule.
PA DEP has issued a proposed substantive revision of the existing Pennsylvania Stormwater Best Management Practices Manual (363-0300-002), which was finalized in 2006. This substantive revision has an entirely new TGD ID No. and is titled Post-Construction Stormwater Management (PCSM) Manual TGD ID No. 386-0300-001. Written comments on this 755-page manual are due Friday, April 28, 2023.
PACA will be collaborating with others on assessing this manual.
In 2018, through an Executive Order, and ahead of EPA, then Governor Wolf established a PFAS Action Team led by DEP to develop a comprehensive response to identify and eliminate the sources of PFAS contamination, address strategies to deliver safe drinking water, manage environmental contamination, explore funding for remediation efforts, and increase public education.
In 2019, the Action Team released a comprehensive report outlining the challenges associated with PFAS. The Governor also sent a letter to EPA urging the EPA to move forward with establishing maximum contaminant levels (MCLs) for PFOA and PFOS.
Disregarding EPA, final regulatory amendments to 25 PA Code Chapter 250: Administration of the Land Recycling Program were published in the PA Bulletin on November 20, 2021, establishing cleanup standards for three PFAS – PFOA, PFOS, and PFBS.
Additionally, the PFAS MCLs in Drinking Water rulemaking was published in the January 14, 2023 issue of the PA Bulletin. That rulemaking set MCLs and maximum contaminant level
goals (MCLGs) for PFOA and PFOS, two contaminants that are part of a larger group of PFAS.
The MCLG and MCL values are shown in the boxes below.
Furthermore, the rulemaking establishes monitoring requirements for PFOA and PFOS for community, non-transient noncommunity, and bottled, vended, retail, and bulk water systems to demonstrate compliance with the MCLs. It also establishes sampling and analytical requirements and acceptable treatment technologies for achieving compliance with the proposed MCLs for PFOA and PFOS. And finally, it implements the MCLs, routine compliance monitoring, and other provisions including public notification for MCL violations.
PA DEP also worked with the U.S. Geologic Survey (USGS) and Susquehanna River Basin Commission (SRBC) staff collecting raw surface water PFAS samples to quantify the extent of PFAS contamination at all of Pennsylvania’s 178 surface water quality network (WQN) stations.
DEP and USGS will continue to collect PFAS surface water samples as part of the DEP’s Surface WQN at approximately 20 locations throughout Pennsylvania based on the results of the data collection effort. Ongoing data collection will be used in the development of PFAS water quality criteria and implementation of surface water assessments.
On March 23, 2021, Pennsylvania’s Interagency Fish Consumption Advisory Technical Workgroup, responsible for reviewing data and developing fish consumption advisories for
PA surface waters, voted to adopt the 2019 Great Lakes Best Practices, which includes tiered meal advice for perfluorooctane sulfonate (PFOS). This workgroup has also issued a Do Not Eat advisory for the entire Neshaminy Creek basin. Data collected in 2022 will be analyzed and evaluated in 2023.
In March 2021, EPA published Regulatory Determinations for Contaminants on the Fourth Contaminant Candidate List which included a final determination to regulate perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) in drinking water. EPA is developing a proposed National Drinking Water Regulation for PFOA and PFOS. As EPA undertakes this action, the agency is also evaluating additional PFAS and considering regulatory actions to address groups of PFAS.
EPA anticipates finalizing the rule by the end of 2023. The proposal will include both a non-enforceable Maximum Contaminant Level Goal (MCLG) and an enforceable standard, or Maximum Contaminant Level (MCL) or Treatment Technique.
On October 18, 2021, EPA Administrator Michael S. Regan announced the Agency’s PFAS Strategic Roadmap—laying out a whole-of-agency approach to addressing PFAS.
PFOA
8
14
PFOs
14
18
DEP has released the final 2022 Pennsylvania State Water Plan and interactive online atlas of statewide water resources and use trends. This is required by the Pennsylvania Water Resources Planning Act (Act 220 of 2002) and is intended to inform leaders’ decision making and educate all Pennsylvanians on sustainable use and stewardship of our lakes, rivers, streams, and groundwater. The plan recommends 100 actions to be continued, expanded on, or initiated in the areas of floodplain and stormwater management, water withdrawal, water efficiency, legacy impacts from coal mining and oil and gas wells, drinking water and wastewater treatment, contaminants of emerging concern, agricultural nonpoint source pollution, and waterway navigability.
PACA had two member companies represented on work groups for this plan.
The federal Unified Agenda of Regulatory and Deregulatory Actions reports on the actions administrative agencies plan to issue in the near and long term. The Agenda is released by the Office of Information and Regulatory Affairs and provides public notice about proposed regulatory and deregulatory actions within the Executive Branch.
The Mine Safety & Health Administration’s (MSHA) Regulatory Agenda lists 3 items of interest to our industry:
The Pennsylvania Climate Change Act (Act 70 of 2008) required the Department of Environmental Protection (DEP) to develop an annual inventory of GHG (greenhouse gases) emissions and update it annually, administer a Climate Change Advisory Committee, set up a voluntary registry of GHG emissions, and prepare a Climate Change Action Plan, updated every 3 years. The latest plan was released April 2019, as well as an Energy Assessment Report with inventory information.
Governor Wolf signed two Executive Orders in 2019 relating to climate change. Executive Order 2019-01 mandated the Commonwealth to reduce net GHG emissions by 26 percent from 2005 levels and reduce net GHG emissions by 80 percent by 2050. Executive Order 2019-7 directs DEP to develop a rulemaking package to limit carbon dioxide emissions from coal-fired power plants and to join the Regional Greenhouse Gas Initiative (RGGI).
Playing into this includes a citizen petition signed by over 160 groups calling for a cap and trade program aimed at cutting the Commonwealth’s GHG emissions. The petition is currently under review by the DEP.
Chair - Andrew Gutshall, Hanson Aggregates
Staff Liaison - Josie Gaskey, Director of Environmental, Safety & Health