New EPA Rules, Guidance Could Prove Costly to Local Governments, Stifle Urban Revitalization
By Judy Sheahan
September 20, 2010
The Environmental Protection Agency (EPA) has issued numerous new rules, regulations and guidance that potentially will have costly ramifications for local governments. These unfunded mandates are in various stages of development. A summary of the mandates that could have the greatest cost impact and impede city redevelopment is provided below.
EPA has sent the Office of Management and Budget (OMB) its Draft Recommended Interim Preliminary Remediation Goals (PRGS) for Dioxin in Soil at CERCLA and RCRA Sites. Dioxin is a chemical compound found at background levels in most soils and is a substance of concern to EPA. Currently, safe levels of dioxin are considered at 1,000 parts per trillion. EPA is considering lowering to an alternative concentration of 72 parts per trillion (ppt), or as low as 3.7 ppt for residential areas. Please note that the background level of dioxin found in urban and suburban soils is approximately 12-14 parts per trillion. The Conference of Mayors has issued a position paper registering our concern that if these interim guidelines are accepted, it may have a "chilling" effect on a city's ability to redevelop brownfield sites. Brownfields are abandoned or underutilized properties whose redevelopment is hindered by either real or perceived environmental contamination. Brownfields are regulated under EPA's rules implementing the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA). The Conference of Mayors has asked OMB and EPA to not issue this guidance until the EPA dioxin reassessment is completed, which the Agency has stated will provide the larger framework for determining how to integrate new science into the regulatory programs. That study is due in December of this year.
ndered by either real or perceived environmental contamination. Brownfields are regulated under EPA's rules implementing the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA). The Conference of Mayors has asked OMB and EPA to not issue this guidance until the EPA dioxin reassessment is completed, which the Agency has stated will provide the larger framework for determining how to integrate new science into the regulatory programs. That study is due in December of this year.
In a letter dated on September 2 to EPA and OMB, Conference of Mayors CEO and Executive Director Tom Cochran stated, "Redeveloping these properties [brownfields] and removing the stigma associated with these properties is something that, for nearly two decades, the Conference of Mayors has worked in partnership with EPA to help create policies and programs that will assist in the redevelopment of these sites. This guidance may hinder the progress we have been making in cleaning up these properties and returning them to productive use."
Industrial, Commercial, Institutional Boilers Located at Area Sources
EPA issued a proposed rule on April 30 that would reduce emissions of toxic air pollutants from existing and new industrial, commercial, and institutional boilers that emit or have the potential to emit less than ten tons per year (tpy) of any single air toxic or less than 25 tpy of any combination of air toxics. Boilers produce steam or hot water, which is then used for energy or heat. The boilers impacted by this rule are ones that burn coal, oil, or biomass (e.g. wood). EPA estimates that there are approximately 183,000 existing boilers at 92,000 facilities including municipal buildings, schools, and medical centers.
The EPA has estimated that the cost for implementing control technology on these sources is $2.5 billion, with an annualized cost of $1 billion, while the estimated benefits are estimated to range from $1 billion to $2.4 billion in reduced health care costs and other benefits. Other analyses of the impact of the rules, provided by Global Insight for an industry group, suggest that many moderate and small size companies will not be able to afford replacing or retrofitting existing boilers and are likely to shut-down operations. This could have a ripple effect on unemployment and reduction in local tax revenues.
In an August 20 letter to EPA, Cochran said, "We would like to point out that the majority of the cost to implement these improvements will be borne by local governments-[and] we strongly encourage you to either slow down or entirely halt the issuance of new unfunded mandates, including this one, or being willing to financially assist cities in our efforts to comply with these new rules and regulations."
Definition of Non-Hazardous Solid Waste
Another rule that may impact city operations and budgets deal with the definition of non-hazardous solid waste. Some combustion units currently considered boilers would be subject to the newly proposed Commercial/Industrial Solid Waste Incinerator standards if they continue to combust solid waste. For example, biosolids (products from wastewater facilities) may now possibly be defined as non-hazardous solid waste and, therefore, facilities that now incinerate biosolids would be classified as a solid waste incineration unit, which would have to meet stricter Clean Air Act standards.
These last two rules can be found on EPA's website at http://www.epa.gov/airquality/combustion/actions.html.
EPA is also soliciting comments, due November 19, on the proper classification of coal ash, a byproduct of burning coal. EPA is asking for comments on whether coal ash should be classified as a "special waste" under the Resource Conservation and Recovery Act (RCRA).This will impact where coal ash is disposed of and whether it should go to a Subtitle C or Subtitle D landfill. Depending on how EPA classifies this waste will impact the cost of disposal. The estimates run approximately $1 billion per year for Subtitle D and $8-$20 billion for Subtitle C landfills. EPA is also asking for comments regarding the beneficial reuse of coal ash. More information is available at the website http://www.epa.gov/coalashrule.
Proposed NPDES Electronic Reporting Rule
EPA is currently considering a requirement that all permittees electronically submit their National Pollutant Discharge Elimination System (NPDES) Discharge Monitoring Reports and other NPDES reports to the appropriate state or federal agency. Local government facilities that are required to submit reports include those that construct stormwater infrastructure, stormwater sewer systems, separate sewer systems, biosolids generators, combined sewer systems, and pretreatment programs. EPA is looking to gather more data and do it more efficiently as well as determine if these facilities are in compliance with regulations. EPA is not able to, at this time, determine the costs to local government.
More information can be found at www.regulations.gov/exchange/topic/npdes. Preliminary comments from state and local governments may be submitted and are due by mid-November. EPA expects to send a rulemaking package to OMB for review in January, and officially open the guidelines for public comment some time in Spring 2011.
Mayors are encouraged to have their staff look over all of these topics and let Conference staff know what impact these rules will have on their communities.