Future Environmental Regulatory Trends

Over the past 10 years, environmental regulation development and implementation have continued to evolve and change. Since the creation of the EPA, about 200 new environmental regulations per year ⁽⁷⁾ were promulgated. Currently there are about 27,074 pages of environmental regulation in Title 40 of the Code of Federal Regulations. Of these regulations, roughly 66 percent deal with emissions into the air, regulated by the Clean Air Act and the Clean Air Act Amendments of 1990. Currently under the Trump Administration, there is no major regulation push or program under consideration, such as the Clean Air Act or Clean Water Act, and the stated aim of the current EPA Administrator Scott Pruitt is a more balanced approach to environmental management at the EPA. ⁽⁸⁾

Administrator Pruitt has stated that his goals for the EPA are “This agency (the EPA) will operate within its statutory limits and with respect to individual states. It makes no sense to continue imposing costly rules and regulations on American businesses and families that do nothing to ensure cleaner air and cleaner water. America can preserve its natural resources while promoting industry growth and job creation. With the involvement of industry, individuals, and environmental experts, EPA regulations can be crafted in a way that protect our natural resources while opening a path for U.S. businesses to prosper, job creation, and economic growth which will enable all Americans access to a livable wage and a clean environment.” ⁽⁸⁾

One interpretation of this statement is that the EPA will issue fewer environmental regulations in the future, but this has yet to be discerned. Administrator Pruitt reportedly has a record of accomplishment of working with stakeholder, industry, and regulatory groups to find common ground and a basis for compliance. ⁽⁹⁾ That being said, Administrator Pruitt withdrew the EPA’s support for the Clean Power Plan, a plan to regulate greenhouse gases in the United States, as the Clean Power Plan would “pick winners and losers”, which he noted as an ill-advised scheme for interfering with the private sector generation of energy. ⁽¹⁰⁾

Anticipated future environmental regulatory trends include:

Water Storage Tanks – Previously, largely ignored by regulators, large firewater and other water supply above ground storage tanks, had no requirement for tank integrity testing or secondary containment protection. These large water storage tanks are often located adjacent to electrical substations and transformers in utility areas where a tank breach could short out the entire electrical system of the site and possibly the surrounding community. Often water storage tanks are tall structures where a structural failure could bring down power lines or impact egress and ingress to a site. Thus, regulation of these large water storage tanks is anticipated to prevent non-environmental damage to a site and its electrical supply. ⁽⁷⁾

History tells us that large volumes of unexpected water releases can do considerable damage to facility equipment. In 2011, a tsunami disabled the backup generators at the Fukushima, Japan nuclear power plant resulting in a meltdown of three nuclear reactors. One global consumer products company has recognized this water storage issue as an unacceptable risk and has developed a corporate standard that requires secondary containment for all above ground storage tanks worldwide.

Upgrades to Hazardous Waste Storage Methods - Hazardous waste stored at 90-day accumulation areas requires only that drums and containers are labeled, physically intact, and inspected weekly. Surprisingly, there is no federal requirement that containers be located over an impervious surface incorporating secondary containment protections. Thus, across the United States, an almost unlimited amount of containers and drums holding hazardous waste can be stored directly on the ground for up to 3 months at various locations with no limits on the design of drums and tanks, or the underlying floor. Some states, including Massachusetts, have recognized this fact as a regulatory gap and requires additional protection such as secondary containment for hazardous accumulation areas. ⁽⁷⁾

Accidental Discharges of Hazardous Substances - Spill Prevention, Control and Countermeasure (SPCC) Planning requirements promulgated under Section 112.7 of the Clean Water Act regulations are designed to prevent the accidental release of only oil-containing substances into the nation’s waters. Facilities subject to the regulations must develop an SPCC Plan certified by a Professional Engineer and must provide appropriate containment and/or diversionary structures or equipment to prevent a discharge of oil. New Jersey is one state that has recognized that regulating only oil in this way is a gap and has promulgated Discharge Prevention, Containment and Countermeasure (DPCC) regulations that cover not only oil but also numerous other hazardous substances. ⁽⁷⁾

Emerging Contaminants

Unlike the focus in the past of regulating known and common environmental contaminants, current trends are to focus on emerging contaminants in order to address initial known problems and prevent anticipated future environmental problems. Current emerging contaminants include perfluorinated compounds, nanomaterials, pharmaceuticals, illicit drugs, anti-bacterial compounds, hormones, flame-retardants (perfluorinated compounds), water disinfection by-products (DBPs), artificial sweeteners, benzotriazoles, 1,4-dioxane, and algal toxins. Potential emerging contaminants include anti-fungal compounds (azole fungicides: climbazole, clotrimazole, ketoconazole, miconazole and fluconazole), various pharmaceuticals, drinking water disinfection products, prions and ionic liquids iodo-trihalomethanes, bromonitromethanes, haloamides, and nitrosamines (including nitrosodimethylamine, and NDMA. ⁽¹⁾

One of the main areas of concern for these emerging contaminants is their presence in wastewater effluent. These emerging contaminants are quickly commercially introduced into consumer and commercial products, used by the consumer, and disposed “down the drain”, where they flow to the local wastewater treatment plant, which often does not have the technology and/or equipment to treat and remove the emerging contaminants. With incomplete treatment, the emerging contaminants released to receiving waters where the contaminants can transform into other chemicals through a variety of processes. Some of these emerging compounds, such as the azole fungicides, have a detrimental effect on non-target organisms. ⁽³⁾

Another concern with emerging contaminants, as well as “normal’ contaminants, is the increasing capability of environmental laboratories (and the desire of environmental regulatory agencies to use these capabilities) in promulgating new and lower clean up levels. This coupled with new concern with known exposure routes, such as vapor intrusion, leads to an always increasingly complex regulatory environment.

Sustainability

Ever since President Obama signed an order of Federal Sustainability, and continuing through the Trump Administration, the EPA is interested in the sustainability of new environmental projects, energy use and production, new regulations, as well as other areas. What is environmental sustainability? The EPA notes sustainability as

“Sustainability is based on a simple principle: Everything that we need for our survival and well-being depends, either directly or indirectly, on our natural environment.

To pursue sustainability is to create and maintain the conditions under which humans and nature can exist in productive harmony to support present and future generations. “Another definition of sustainability was developed by the UN World Commission on Environment and Development in 1987: “Sustainable Development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

 

As part of this program, the EPA is developing a framework of Sustainability Indicators, which will help EPA and state regulators evaluate the sustainability of regulations, program evaluation, remediation programs, and affected projects and programs. These indicators are considered to be highly useful in evaluating various options in any environmental decision making process. These indicators will include:

Area	Description
Goal	What is specifically sought to be achieved. Progress toward a goal is determined through the use of measurable indicators. An example of a goal is: Reduce mercury emissions from electric utility steam generating units.
Indicator	A summary measure that provides information on the state of, or change in, the system that is being measured. An example of an indicator for the above goal is: Mass of mercury emitted per unit of energy delivered.
Metric	The measured value(s) used to assess specific indicators. It defines the units and how the indicator is being measured. An example of a metric for the above indicator is: Grams of mercury per kilowatt-hour.

Currently, an EPA review of sustainability is typically a review of how much energy is going to be expended on a project?; is the energy coming from a green renewable source or a non-renewable fossil fuel source?; what other areas will be affected by the project?; will the regulation or project introduce non-intended detrimental effects?, etc.

Green Energy

Not necessarily entirely a regulatory program, but more of a partnership with many stakeholders, the EPA is actively pursuing programs that encourage the development of renewable, green energy and retarding the use of non-renewable energy sources. ⁽⁵⁾ Major EPA programs in Green Energy include:

Program	Description
Ag Star	Promotes the use of biogas recovery systems to reduce methane emissions from livestock waste. In addition to producing biogas, anaerobic digestion systems can also help achieve other social, environmental, agricultural and economic benefits.
Energy Star	Energy Star is a joint program of the EPA and the DOE. Energy efficient choices can save families about a third on their energy bill with similar savings of greenhouse gas emissions, without sacrificing features, style or comfort. In FY 2019, the EPA is requiring participants in the Energy Star program to pay user fees.
Combined Heat and Power Partnership	A voluntary program seeking to reduce the environmental impact of power generation by promoting the use of CHP. The Partnership works closely with energy users, the CHP industry, state and local governments, and other clean energy stakeholders to facilitate the development of new projects and to promote their environmental and economic benefits.
Landfill Methane Outreach Program	The Landfill Methane Outreach Program is a voluntary assistance program that helps to reduce methane emissions from landfills by encouraging the recovery and beneficial use of landfill gas as a renewable energy resource.
Promoting Energy Independence and Economic Growth (Executive Order 13783)	The EPA will be working on methods to “identify, and propose measures to suspend revise or rescind regulatory barriers that impede progress towards energy independence. EPA will continue to take appropriate deregulatory actions and work to speed up the environmental permitting process to advance this effort.”

Climate Change/Emergency Response

In order to help prevent and deal with Climate Change, the EPA has a wide range of programs. One of EPA’s major programs is Creating Resilient Water Utilities Program. EPA's Creating Resilient Water Utilities (CRWU) is an initiative aimed at preparing the water sector, including drinking water, wastewater, and storm water utilities, for climate change impacts. ⁽⁶⁾ Another EPA program is a program focused on emergency response to water utilities after a flood or similar storm event. This program is called the “Emergency Response for Drinking Water and Wastewater Utilities” Program. EPA has developed a variety of evaluation tools, guidance documents and other information resources to support drinking water and wastewater preparedness, response and recovery.

EPA's Climate Ready Estuaries (CRE) program works with the National Estuary Programs and the coastal management community. CRE helps these groups assess climate change vulnerabilities, develop and implement adaptation strategies, and engage and educate stakeholders. The program helps coastal managers and other place-based organizations by providing technical assistance by providing tools such as the "Being Prepared for Climate Change" workbook.

The EPA has also recently started programs to protect sensitive ecological areas such as the Chesapeake Bay. The EPA implemented a Chesapeake Bay Environmental Program Office to coordinate environmental restoration of the Chesapeake Bay, a large estuary greatly impacted by flooding, historic industrial effluent, less than optimal wastewater treatment plants, and silt loads from hurricanes and increasing urbanization around the bay. The EPA Chesapeake Bay Program Office manages several unique programs including:

A Pollution Diet for the Bay – The EPA has developed total maximum daily loads for each river entering the Bay. The establishment of these TMDLs is thought to help the Bay recover from high silt and pollutant loading resulting from flooding, poor farming practices, and ineffective wastewater treatment plants along the Bay. The EPA Chesapeake Bay office is also responsible for developing and enforcing the Chesapeake Bay Compliance and Enforcement Strategy that locates and addresses non-compliance with environmental laws and estimates environmental impacts from non-compliance. Under this program, the Bay Office must develop summaries of the health of the Bay, note significant pollutants and their sources and proposed uses of EPA’s compliance and enforcement tools to target pollution sources impairing the Bay watershed. The Chesapeake Bay Office must also develop a summary of which significant pollutants and sources are regulated by federal environmental statutes and sector strategies. These reports and tools are useful in negotiating pollution limits with the many states that are member of the Chesapeake Bay Program: The District of Columbia, Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia.

The Chesapeake Bay Program is thought to be a model of ensuring large-scale remediation of future multi-state environmentally impacted areas, with the EPA taking on more of a management and coordination role rather than solely an enforcement role.

While Environmental Regulations are ever changing, it appears that currently, there are no major changes planned in environmental regulations. However, since in the United States, environmental regulation is reactive to events, a new environmental regulatory program cannot be ruled out, but none is foreseen at this time.

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References:

1. Emerging environmental contaminants: Challenges facing our next generation and potential engineering solutions; Susan D. Richardson; Environmental Technology and Innovation, Volume 8, November, 2014p 40-66
2. EMERGING ENVIRONMENTAL CONTAMINANTS AND CURRENT ISSUES; EPA
3. Anti-fungal compounds: emerging environmental contaminants; Science of Environment Policy; September 23, 2016
4. A Framework for Sustainability Indicators at EPA; Cynthia Sonich-Mullin USEPA – Office of Research and Development – National Risk Management Research laboratory, Sustainable Technology Division
5. Clean Energy Programs; USEPA (Energy and Environment)
6. EPA Programs and Initiatives Addressing Climate Change in the Water Sector; EPA
7. US Environmental Regulatory Trends, Past, Present, and Future; Larry Cahill, Wharton School (UPENN), IGEL Wharton; April 2017
8. Statement on the Confirmation of OK Attorney General Scott Pruitt as EPA Administrator; EE Legal; 2017
9. EPA Administrator – Scott Pruitt; USEPA; 2017
10. Pruitt Announces Withdrawal of Clean Power Plan; CNN; October 10, 2017
11. FY 2019 EPA Budget in Brief
12. Practitioner Insights: How Pruitt Distinguishes Trump’s EPA; Bloomberg DNA March 12, 2018