SMG Environmental, Health & Safety Regulatory Update

April 2020/ Karen Thompson, Kevin Chaplin, Nick Ellis

Our Regulatory Update is a periodic summary of regulations that we are currently tracking. The regulations we watch address energy, environmental, health and safety. This is not an all-encompassing list of regulations being considered at the state or federal level. Contact us if you want to add additional issues, need copies of the proposed or final regulations or have questions about these or other regulations you’ve heard about. DO YOU KNOW SOMEONE WHO WANTS TO RECEIVE THESE UPDATES? QUESTIONS, COMMENTS, ADDITIONAL INFORMATION contact Karen Thompson, karent@smithmanage.com

Updates

Since early March we all have been practicing social distancing, quarantining, or at the least more hand washing. April has continued the trend. We hope our newsletter finds all of you safe and healthy. During the country’s battle with the COVID-19 virus, our initial concerns are with healthy family and coworkers. We look forward to seeing our clients and friends once we can have in-person contact again. The Federal Government continues to update guidance related to COVID-19 as new information becomes available. During this time, we all need to be aware of how this guidance effects our workers health and safety and the company’s compliance with EHS regulations. EPA released additional guidance on April 10, 2020 with regard to Site Field Work Decisions based on Impacts from COVID-19 restrictions of in-person meetings and work. EPA guidance provides a general framework for deciding if on-site field work is essential during stay-at- home orders or limited in-person contact. Kentucky has decided that they will look at these activities on a case by case basis. If you have quarterly or semi-annual monitoring that must be completed before the end of June, we recommend reaching out to the state to determine if you can delay those activities. OSHA has also released guidance on safety in the workplace related to COVID-19. As workers return to facilities, or as you continue to have a workforce at your facility, it is important to look at the following items:

• Have you identified potential sources of exposure? It’s time to assess your risk. OSHA’ s COVID 19 webpage provides a summary of types of workers that fall into lower risk, medium risk, high risk, and very high-risk categories for exposure to COVID-19. Each category requires a different level of PPE and engineering controls depending on the exposure risk.

• Do you have a policy for returning workers that have experienced a COVID-19 infection? It is important to have health and safety personnel provide surveillance of both CDC and Federal/State OSHA directives as the pandemic response will have emerging issues and changing policies as it moves forward.

• What Standard’s apply to the COVID-19 outbreak in the workplace? Remember OSHA requirements apply to preventing occupational exposure to the virus. COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. Other

standards include PPE Standards (29 CFR 1910 Subpart I), Respiratory Protection (29 CFR 1910.134), and the General Duty Clause. Federal OSHA has issued an Interim Enforcement Response Plan that can provide some insight into what enforcement flexibilities are available for certain industries.

• What are acceptable substitutions for N95 masks, and what if there is a shortage on supplies? Do you have a contingency plan or a partnership which could assist in preventing business interruptions?

WOTUS - June 22, 2020 the new definition of “Waters of the US” becomes effective. As with previous WOTUS rules we will continue to keep you up to date on how this will be implemented at the federal, state, and local levels. Jefferson County SIP Revision - The EPA is proposing to approve changes to Louisville Metro Air Pollution Control District (District) Regulation 1.04, Performance Tests, based on a letter submitted by the Kentucky Division of Air Quality (DAQ) on September 5, 2019. The changes are intended to streamline and clarify the existing state implementation plan (SIP). They do not alter any emissions limitations; however, there are changes on what must be done both before and after performance tests are conducted. Overall, these proposed changes should help make the performance testing process easier. A pre-test conference with a pre-test survey are no longer required to be conducted as they are superseded by the new requirement to submit the actual testing protocol 30 days in advance. A major addition of Regulation 1.04 is the addition of a new section that requires the submission of a test report to the District. This must be done within 60 days of completion of the performance test; and it must include all data collected, including data from aborted or rejected test runs. Comments concerning the proposed changes may be submitted to the EPA by May 28, 2020. • Pre-Test changes

o The EPA now has authority to require or conduct performance tests in addition to the District. o Owners or operators must submit to the District a notice of intent to test 10 days in advance

rather than 25 days in advance. o Owners or operators must submit a testing protocol 30 calendar days in advance. o Due to the new testing protocol requirement, the pre-test conference along with the pre-test

survey are no longer required. However, the conference can still be arranged. • Testing Changes

o Performance testing may be halted only in the following scenarios: 1. There is a forced shutdown; 2. There is a failure in an irreplaceable portion of the sampling train; 3. There are extreme meteorological conditions; 4. There is/are unforeseen circumstances beyond the owner’s or operator’s control.

o It is prohibited to halt a test to alter the parameters of the testing. • Post-Test Changes

o A test report must be submitted within 60 days of a performance test. All data must be submitted with the report, including data from aborted or rejected test runs.

Dates to Remember

• May 1, 2020 – Comments due on NPDES 2020 Issuance of the MSGP for Stormwater Discharges Associated with Industrial Activity

• May 26, 2020 - Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews for 25 Southeastern Species comments due.

• June 22, 2020 - The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ becomes effective.

May 1, 2020 Administrative Register of Kentucky –

Proposed Amendments – Department of Workplace Standards

803 KAR 002:301. Adoption and extension of established federal standards 803 KAR 002:304. Exit routes and emergency planning 803 KAR 002:311. Fire protection 803 KAR 002:312. Compressed gas and compressed air equipment 803 KAR 002:315. Hand and portable powered tools and other hand-held equipment 803 KAR 002:316. Welding, cutting, and brazing 803 KAR 002:319. Commercial diving operations

Federal Register April 2020

Chemical Data Reporting; Extension of the 2020 Submission Period AGENCY: EPA ACTION: Final rule. SUMMARY: EPA is amending the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) regulations by extending the submission deadline for 2020 reports from September 30, 2020, to November 30, 2020. This is a one-time extension for the 2020

submission period only. The CDR regulations require manufacturers (including importers) of certain chemical substances included on the TSCA Chemical Substance Inventory (TSCA Inventory) to report data on the manufacturing, processing, and use of the chemical substances. DATES: This final rule is effective April 9, 2020. https://www.govinfo.gov/content/pkg/FR-2020-04-09/pdf/2020-06074.pdf

The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States’’ AGENCY: Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency and the Department of the Army are publishing a final rule defining the scope of waters federally regulated under the Clean Water Act. The Navigable Waters Protection Rule is the second step in a comprehensive, twostep process intended to review and revise the definition of ‘‘waters of the United States’’ consistent with the Executive Order signed on February 28, 2017, ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ Once effective, it replaces the rule published on October 22, 2019. This final rule implements the overall objective of the Clean Water Act to restore and maintain the integrity of the nation’s waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress’ policy directive to preserve States’ primary authority over land and water resources. This final definition increases the predictability and consistency of Clean Water Act programs by clarifying the scope of ‘‘waters of the United States’’ federally regulated under the Act. DATES: This rule is effective on June 22, 2020. https://www.govinfo.gov/content/pkg/FR-2020-04-21/pdf/2020-02500.pdf Continuous Emission Monitoring; Quality-Assurance Requirements During the COVID–19 National Emergency AGENCY: EPA. ACTION: Interim final rule; request for comments.

SUMMARY: The EPA is amending the emissions reporting regulations applicable to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOX SIP Call. The amendments provide that if an affected unit fails to complete a required quality-assurance, certification or recertification, fuel analysis, or emission rate test by the applicable deadline under the regulations because of travel, plant access, or other safety restrictions implemented to address the current COVID–19 national emergency and if the unit’s actual monitored data would be considered valid if not for the delayed test, the unit may temporarily continue to report actual monitored data instead of substitute data. Sources must maintain documentation, notify EPA when a test is delayed and later completed, and certify to EPA that they meet the criteria for using the amended reporting procedures. Substitute data must be reported if those criteria are not met or if monitored data are missing or are invalid for any non-emergency related reason. Units are required to complete any delayed tests as soon as practicable after relevant emergency related restrictions no longer apply, and the emergency period for which a unit can report valid data under the amendments is limited to the duration of the COVID–19 national emergency plus a grace period of 60 days to complete delayed tests, but no later than the date of expiration of the amendments. This action is necessary during the COVID–19 national emergency to protect on-site power plant operators and other essential personnel from unnecessary risk of exposure to the coronavirus. The amendments do not suspend emissions monitoring or reporting requirements or alter emissions standards under any program, and EPA expects the amendments not to cause any change in emissions levels. The rule therefore will not result in any harm to

public health or the environment that might occur from increased emissions, and to the extent that the amendments facilitate plant operators’ efforts to comply with travel and plant access restrictions imposed to protect public health during the COVID–19 emergency, the amendments will have a positive impact on public health by assisting efforts to slow the spread of the disease. EPA finds good cause to promulgate this rule without prior notice or opportunity for public comment and to make the rule effective immediately upon publication in the Federal Register. The amendments promulgated in this rule will expire in 180 days. EPA is also requesting comment on this rule. DATES: This rule is effective April 22, 2020. EPA will consider comments on this rule received on or before May 22, 2020. https://www.govinfo.gov/content/pkg/FR-2020-04-22/pdf/2020-08581.pdf Air Plan Approval; KY: Jefferson County Performance Tests AGENCY: EPA ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve changes to the Jefferson County portion of the Kentucky State Implementation Plan (SIP), submitted by the Commonwealth of Kentucky, through the Energy and Environment Cabinet (Cabinet), Division of Air Quality (DAQ), through a letter dated September 5, 2019. The changes were submitted by the Cabinet on behalf of the Louisville Metro Air Pollution Control District (District, also referred to herein as Jefferson County). The SIP revision includes changes to Jefferson County regulations regarding performance tests. DATES: Comments must be received on or before May 28, 2020. https://www.govinfo.gov/content/pkg/FR-2020-04-28/pdf/2020-08666.pdf