Preliminary Draft of Potential California Hydraulic Fracing Rules

On December 18, the California Department of Conservation/Division of Oil, Gas, and Geothermal Resources released a draft of regulations covering hydraulic fracturing. The Division says the draft regulations are a "discussion draft," meaning the version does not begin a formal rulemaking process, but rather, starts the discussion by key stakeholders, such as industry, environmental groups, regulators, and any interested members of the public. The discussions will help prepare for the more formal rulemaking process, which is expected to begin by February 2013.

The discussion draft regulations touch on topics such as:

• Pre-fracturing well-testing;
• Advance notification;
• Monitoring during and after drilling operations;
• Disclosure of fracturing fluid materials;
• Confidential business information; and
• Handling of hydraulic fracturing fluids; and
• Storage of hydraulic fracturing fluids.

The proposed regulations would require hydraulic fracturing operators to publicly disclose detailed information about their operations, including a complete list of chemicals, and their concentrations. If the material is a trade secret, then operators must inform the public of its chemical family or use a similar method to describe it. The Division will accept written comments until 45 days after the formal rulemaking begins.

Caltha LLP provides expert environmental consultant services in California to obtain environmental permits, evaluate regulatory requirements, and to develop cost effective compliance programs.
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Methyl Bromide Use Agreement With CDPR

U.S. EPA has entering into an agreement with the California Department of Pesticide Regulation (CDPR) to resolve a civil rights complaint filed in 1999 under Title VI of the Civil Rights Act of 1964 (Title VI). Title VI prohibits intentional discrimination and discriminatory effects on the basis of race, color, and national origin by recipients of federal financial assistance. The complaint alleged that CDPR’s annual renewal of the registration of methyl bromide in 1999 discriminated against Latino school children based on the health impacts of this pesticide. The Office of Civil Rights’ analysis of pesticide use in California from 1995 to 2001, raised concerns that there was an unintentional adverse and disparate impact on Latino children resulting from the use of methyl bromide during that period. This concern was based on the high percentage of Latino children in schools near fields where methyl bromide was applied for the period from 1995-2001. EPA communicated its concerns to CDPR on April 22, 2011.

CDPR has agreed through this Agreement to expand on-going monitoring of methyl bromide air concentrations by adding a monitor at or near one of the Watsonville, CA area schools named in the original complaint. The purpose of the additional monitor is to confirm that there will be no recurrence of earlier conditions. CDPR will share the monitoring results with EPA and the public and will also increase its community outreach and education efforts to schools that are in high methyl bromide usage areas.

Caltha LLP provides expert environmental consultant services in California to obtain environmental permits, evaluate regulatory requirements, and to develop cost effective compliance programs.

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Vapor Intrusion Proposed For Superfund Hazard Ranking System

U.S. EPA is proposing to amend the ranking system used to assess potential “Superfund” sites to include potential vapor intrusion. The Hazard Ranking System (HRS), required by the Superfund statute, is the primary mechanism used by EPA to assess the relative threat associated with actual or potential releases of hazardous substances. Sites that score 28.50 or greater under the HRS are eligible for inclusion on the National Priorities List (NPL). The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation. A score of 28.50 does not represent a specified level of risk but is a cutoff point that serves as a screening-level indicator of the highest priority releases or threatened releases.

The HRS includes four scoring pathways - ground water, surface water, air and soil exposure. Additional pathways have been identified by EPA as posing significant threats to human health and the environment, and one such pathway is vapor intrusion. Vapor intrusion occurs when contaminants enter into indoor spaces, generally residences, from environmental sources such as contaminated ground water or contaminated soil.

Historically, EPA's Superfund program has responded to vapor intrusion contamination by two mechanisms: (1) through its emergency response program at sites not on the NPL, or (2) through sites placed on the NPL because of other pathway-related risks. In May 2010, the Government Accountability Office (GAO) issued a report that concluded that if vapor intrusion sites are not assessed and, if needed, listed on the NPL, some seriously contaminated hazardous waste sites with unacceptable human exposure may not otherwise be cleaned up. In response, EPA is proposing to add a new HRS pathway so that sites with vapor intrusion contamination can be evaluated for inclusion on the NPL.

EPA initiated rulemaking in January 2011, and current expects final rules to be completed by January 2012.

Caltha LLP provides expert environmental consultant services in California to obtain environmental permits, evaluate regulatory requirements, and to develop cost effective compliance programs.

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Pesticide Application General Permit

U.S. Environmental Protection Agency (EPA) has released a proposed new permit with requirements that would regulate the amount of pesticides discharged to Waters of the US. This proposed general permit is in response to an April 9, 2009 court decision that found that pesticide discharges to U.S. waters were pollutants, and therefore requiring an NPDES permit.

The proposed permit would require all operators to reduce pesticide discharges by using the lowest effective amount of pesticide, prevent leaks and spills, calibrate equipment and monitor for and report adverse incidents. Additional controls, such as integrated pest management practices, are built into the permit for operators who exceed an annual treatment area threshold.

The agency plans to finalize the permit in December 2010, and have it take effect April 9, 2011. Once finalized, the pesticide general permit will be used in states, territories, tribal lands, and federal facilities where EPA is the authorized permitting authority. In the remaining 44 states, states will issue the pesticide general permits. EPA has been working closely with these states to concurrently develop their permits.

EPA will hold three public meetings, a public hearing and a webcast on the draft general permit to present the proposed requirements of the permit, the basis for those requirements and to answer questions. EPA will accept written comments on the draft permit for 45 days after publication in the Federal Register.

Caltha LLP provides expert consulting services to public and private sector clients nationwide to address water quality standards, wastewater permitting and assessing potential impacts of chemicals in the aquatic environment.

Caltha LLP Aquatic Toxicology / WQ Standards Services Website

CEQ Mitigation Guidance Under NEPA

The Council on Environmental Quality (“CEQ”) has issued its “Draft Mitigation Guidance” outlining requirements for monitoring and reporting the status of substantive mitigation of impacts identified following NEPA reviews. CEQ will accept public comments on the Draft Mitigation Guidance until May 24, 2010.


CEQ’s Draft Mitigation Guidance directs federal agencies, during the environmental review process to:

• Establish binding commitments for mitigating adverse environmental impacts identified by the reviewing agencies, and to enforce those commitments through their existing legal authorities;
• Monitor (or require monitoring of) the implementation and effectiveness of mitigation measures; and
• Make the results of their monitoring available to the public, preferably through the lead agency’s web site.
  

NEPA regulations define “mitigation” as measures to avoid, minimize, rectify, reduce, or compensate for environmental impacts. The regulations require that a federal agency discuss possible mitigation measures in defining the scope of an EIS, in discussing alternatives to the proposed action and the consequences of the proposed action and its alternatives, and in explaining its ultimate decision.

The Draft Mitigation Guidance would direct agencies to create, as part of their NEPA implementing procedures, processes to ensure that mitigation actions relied upon in a mitigated FONSI (“Finding of No Significant Impact”) or that are part of the proposed action in an EIS are documented, and that implementation plans are created to ensure the mitigation is carried out. The guidance directs that the mitigation commitment be clearly documented in NEPA documents and in decision documents such as the Record of Decision. The guidance also suggests methods for ensuring that mitigation is implemented, such as attaching conditions to financial agreements, grants, permits, or other approvals, or conditioning federal funding on implementing mitigation.

The draft guidance also calls for inclusion of adaptive management as part of the agency’s action, so that some response may be required if mitigation fails. It suggests that if mitigation supporting a mitigated FONSI fails, then an EIS may be required. It concludes that the agency decision should be structured so that a substantial mitigation failure triggers further action by the agency.

The existing NEPA regulations require agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. The Draft Mitigation Guidance identifies two forms of monitoring: implementation and effectiveness. The objective of implementation monitoring is to document that promised mitigation is actually carried out. Effectiveness monitoring is more qualitative: it should evaluate whether the mitigation achieves its objectives.

The existing NEPA regulations also indicate that “upon request” lead agencies should make available to the public the results of relevant monitoring. The Draft Mitigation Guidance seeks to convert this duty to respond into an affirmative obligation to push information on mitigation monitoring out to the public.

For more information, go to Environmental Review services page

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ASTM E 2600 Vaper Intrusion Screen Under HUD

The U.S. Department of Housing and Urban Development (HUD) Office of Multifamily Housing has adopted Tier 1 vapor intrusion (VI) screens (the first of four tiers) under ASTM E 2600 as a mandatory component of Phase I environmental site assessments conducted under the agency's MAP (Multifamily Accelerated Processing) Guide. MAP is the procedure used by hundreds of MAP-approved lenders and HUD field offices throughout the country to process loan applications for Federal Housing Administration multifamily mortgage insurance.

Under the revised policy, a HUD Phase I ESA must include an initial vapor intrusion screen to determine if there is a potential for vapors to occur in the subsurface below existing and/or proposed on-site structures from those hazardous substances, petroleum and petroleum products that consist of VOCs, SVOCs and inorganic volatile compounds.

HUD is one of two Federal lending agencies that that prescribe additional mandatory requirements to a Phase I ESA. The Small Business Administration also has additional environmental review requirements for participation in its lending programs.

SBA Environmental Review / RSRA / Phase I Environmental Site Assessment Requirements

Caltha LLP assists prospective Buyers and their Lenders in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.

Caltha LLP provides expert environmental consultant services in California to obtain environmental permits, evaluate regulatory requirements, and to develop cost effective compliance programs.

For further information contact Caltha LLP at
info@calthacompany.com
or
Caltha LLP Website