A Quarterly Publication of POWER Engineers Environmental Winter 2021
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CURRENTS
A Quarterly Publication of POWER Engineers Environmental Winter 2021
2 4
WASTEWATER TESTING FOR COVID-19 FROM THE TRENCHES
A university’s success in early detection Working in vacationland:
for outbreaks tales from the wild
CURRENTS
CURRENTS
WINTER 2021
Volume 26, Issue 1
Currents is a publication of POWER Engineers,
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POWER Engineers Environmental provides
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engineering, and site assessment and
corrective action services to clients worldwide.
Across multiple industries, we specialize
in the areas of air, water, waste, ecological,
cultural and wastewater. And as part of
POWER Engineers, we can provide integrated
engineering and environmental solutions.
With 45 offices located across the country and
internationally, we have local resources
and expertise where you need it.
LEADERSHIP
INSIGHTS
Are We Keeping Up With Ourselves?
Gino Giumarro | Senior Biologist
S
uccessful companies anticipate Organizations that no longer use the successful organizations ensure that their
the need to adapt. They develop traditional, top-down hierarchical models structure and operation respond to both in-
a wide variety of metrics to help are increasingly known for developing ternal and external changes in the beliefs
them make informed decisions new and original forms and practices in and actions of employees.
about economic goals, pace, and scope of response to the changing conditions of
change in relation to market indicators. post-modern society. Organizational Success
To incorporate components of the
Increasingly, societal indicators have be- The Hawthorne Effect Hawthorne Effect in your business, consider
come equally important for understanding The first seeds of change were planted by the five suggestions below. These are
how to effectively manage a successful Elton Mayo and his colleagues’ famous important factors to foster a flexible, robust
business. The difficulty with societal study, “Hawthorne plant of the Western organization that can sustain change while
indicators, however, is that these can Electric Company between 1927 and also taking advantage of new opportunities.
be challenging to measure and are 1932.” The Hawthorne Effect, as it’s come
constantly evolving. to be known, concluded that, although 1. Provide opportunities to create
financial motives are important, social positive relationships between
A Little History factors are just as important in defining coworkers.
Since 1850, organizational theory has both employee and company success. 2. Recognize that personnel are
been debated by sociologists like Frederick social beings and create a sense
Taylor and Max Weber, who focused on There is much to learn from the Hawthorne of belonging and shared culture
maximizing production through systematic, Effect in maintaining a successful orga- in the workplace.
scientific and top-down authority. They hy- nizational structure. Most importantly, 3. Empower leaders that understand
pothesized that people and organizations businesses must be willing to adapt to how people interact and behave
always act in accordance with rational meet the evolving needs of both their within the group.
economic principles. Through the 1960s, employees and society as a whole. 4. Stress the importance of consistently
the prevailing social belief was that there working to improve interpersonal
was one “best” organizational structure The most successful organizations are skills through motivation, leadership,
appropriate for all businesses. those where the outward focus and communication and coaching.
strategy is aligned with customer opinions 5. Provide leaders with opportunities to
Today, a one-size-fits-all business model and behaviors. Decisions are developed learn about behavioral sciences to
seem ludicrous, demonstrating how the in a collaborative and transparent manner better understand and improve the
broadly accepted normative beliefs and with a focus on long-term business interactions between employees.
behaviors have changed drastically across sustainability. Instead of a top-down,
society. The more informed, connected rule-governed environment, management Today’s companies benefit when they
and specialized we become as a society, exhibits trust by empowering employees incorporate societal indicators into organi-
the less interested we are in trying to fit within a culture of teamwork. zational models. Our challenge as leaders
one mold. Instead, people are increasingly is to be sure that the organization keeps
looking for something that differentiates These companies are also ethically and up with the collective changes in our own
them from one another. The same can be socially aware and committed to giving teams and balances traditional business
said of businesses. back to their communities. Ultimately, metrics with cultural responsiveness.
POWER ENGINEERS 1
Wastewater Testing:
An Early Detection
System for COVID-19
I
Jim Young, P.G. n early 2020, school administrators program. The results would help identify
Senior Geologist and leaders from across the nation positive COVID-19 cases in the campus’
were asked to address a situation population and minimize the virus’ spread.
for which there was no playbook:
educate students during a pandemic. In the end, the wastewater analytical
Revised operational plans, mask mandates program proved to be an invaluable tool
and other safety protocols have since been for the university during their fall semester.
implemented to handle the unexpected The program successfully identified
but necessary measures to combat the the presence of COVID-19 in specific
COVID-19 outbreak. residential halls, allowing the university to
immediately act to contain outbreaks. The
Like every business, safety was of the methods used to develop and implement
utmost importance. But universities and this program, and the lessons we learned
school districts had the added worry of along the way, could be applied to a
protecting students, faculty and staff COVID-19 wastewater monitoring program
while figuring out how to safely bring back for any institution or business.
students for the fall semester.
Do Your Research
In June 2020, a longstanding university The pandemic was in its early stages
client expressed interest in developing a last June when we began to design the
campus wastewater monitoring program. monitoring program. Academic research
The purpose of the program was to anticipate by Arizona State University and the
and curb the spread of SARS-CoV-2, the Massachusetts Institute of Technology had
Learn how COVID-19 virus that causes COVID-19. Because only recently been applied to municipal
wastewater testing is a more the presence of COVID-19 is reflected wastewater systems for large-scale indica-
responsive and economical in wastewater within one to two days of tions of COVID-19.
approach at: infection—well before symptoms appear—
www.powereng.com/wastewater the university hoped to use wastewater Initially, papers prepared by ASU and
testing as the keystone in their analytical MIT and interviews with their researchers
2 C u rren t s
Sampling time. POWER environmental specialist Nathan Bachik collects wastewater samples for testing on the university campus.
formed the basis of our research, including Rapid Data Is Everything the course of the semester, wastewater
sampling techniques, analytical protocols The wastewater monitoring program was results indicated positive cases at multiple
and methods for evaluating data and the university’s primary tool to identify residence halls. These findings allowed
related trends. positive cases in their community, so we the university to immediately quarantine
knew we had to provide analytical results students in affected residence halls, and
Developing the monitoring program as soon as practicable. The laboratory we students were required to provide proof of
required a strong understanding of the selected provided the shortest turnaround a negative result before being permitted to
university’s goals, their sanitary infrastruc- time available. They generated reports discontinue quarantine.
ture and their ability and willingness to within 48 hours, and often provided verbal
assist with the program. After roughly two results even sooner. Couriers were used to The university was also able to complete
months of consistent communication and ensure samples arrived at the laboratory far more effective contact tracing because
refinement, the plan for the monitoring within hours of sampling, which reduced they had results available much closer
program was complete. time by avoiding an additional day for to the time of infection. They captured
overnight shipping of the samples. clusters of positive cases and the sources
When students returned to campus, the of those infections, including forbidden
university initiated the program. We col- Constant communication with the lab was off-campus travel, before a more extensive
lected wastewater samples on alternating essential to project success, allowing our spread could occur.
days from manholes representative of team to quickly and routinely provide ver-
each residential building. On the first day, bal results and lab reports to the university. Not All Environmental Data Is the Same
sampling units were set to begin collection All analytical results and lab reports were As environmental professionals, we are
of a 24-hour composite sample, and the maintained on a cloud drive for access by accustomed to generating and managing
next day, samples from each manhole both our team and university staff. As the data that may have significant implications
were collected for laboratory analysis and data set grew and various outbreaks were for our clients. Wastewater analysis for
reporting. Our staff were on site throughout identified and addressed, we began to see COVID-19 is new to laboratories, and
the course of the semester: seven days data trends emerge. we learned many of their challenges
per week, every week. During periods of associated with maintaining data validity.
outbreak, we often collected samples from The monitoring program was successful The validity of COVID-19 testing results
impacted residence halls on a daily basis. because data was available so quickly. Over is imperative given the immediate and
Wastewater Testing >>> continued on page 10
POWER ENGINEERS 3FROM THE
TRENCHES
Working in Vacationland: Tales from the Wild
Chad Flinkstrom | Environmental Specialist Assistant
L
aying in the leaves, fresh black Thankfully, this time was no different than beaches and rolling mountains sculpted
bear scat steamed at my feet. I the previous. We made it back to the motel by glaciers that retreated north more than
froze and my heart began to without any wildlife encounters and told 11,000 years ago.
race. I scanned my surroundings. our tales of the day over a hot meal and
Remembering what I learned from watch- some drinks. This particular project, located in the
ing the Discovery Channel as a young boy, I remote mountains of western Maine,
shouted, “No bear! No bear!” began in May 2018. Not three
Unaware if my field partner, Nick,
Despite some near run-ins weeks prior, I was sitting at my new
desk performing onboarding tasks
heard my calls, I remained silent
and waited for a call back or
with large animals, I made and setting up my workstation.
Despite growing up in Maine, I was
some rustling in the leaves. My
senses were on high alert. The
lasting friendships in unaware of the remarkable sights I
would soon encounter, having never
truck was a rugged 20-minute
hike out. I waited. Silence. I took
the forests of Maine and enjoyed its more remote locations.
a breath and proceeded with my
wetland delineation.
learned a lot along the way. Five tracts of land, each of varying
size, location and terrain were
assigned for wetland delineations,
This was not my first time seeing large Known to many as “Vacationland,” Maine functional assessments, vernal pool
animal signs while working in the is home to many large, potentially danger- surveys and habitat assessments. The
remote reaches of Maine’s forest. In fact, ous creatures. The densest forest cover in large wetland assignment included our
throughout my career in environmental the country, the state holds an abundance five-member team and only a couple of
sciences, I’d come across many signs of of freshwater resources and has a diverse months to complete the work, so we hit
bear and moose. landscape of jagged coastline, sandy the ground running.
I was already familiar with vernal pool sur-
veys from a previous job: search the forest
for ephemeral pools of freshwater in hopes
of finding clear, jelly-like globules with tiny
black dots inside.
Wood frogs and spotted salamanders are
remarkable amphibians who breed in
these temporary pools. They lay their eggs
in gelatinous masses consisting of hun-
dreds of individual nymphs and tadpoles,
and their presence in these temporary
pools are excellent indicators of a healthy
forest ecosystem.
I got to know my new co-workers quickly.
Beyond my growing knowledge of vernal
pools, I learned at least one new piece
Nature’s wonder. A spotted salamander egg mass with nearly-hatched nymphs is found in a vernal pool.
4 C u rren t sWhat Are Vernal Pools?
Vernal pools are shallow depressions that
contain water for part of the year and are
closely connected to surrounding wetland
and upland areas. They provide critical
habitat for several species of amphibians
and invertebrates. In Maine, this primarily
includes the spotted salamander, wood
frog and fairy shrimp.
Hatching insects and juvenile amphibi-
ans emerge from the pools and disperse
into the surrounding forest, becoming
an important food source for a variety
Majestic falls. A popular scenic area on the Dead River, Grand Falls is a 40-foot cascade in West Forks, Maine. of wildlife. The pools are fishless due
to their ephemeral nature and provide
of information daily and I relished the Thankfully, it was a hot day and the cold a predator-free habitat for these species.
opportunity to work with the best biolo- water was welcome.
gists, geologists and botanists I’d ever met. Some amphibians are pool-specific—
Working in the Maine woods can be a lonely The challenging terrain, harsh weather and returning to breed in the same pool
and ruthless endeavor, but with a few other long hours were a struggle nearly every day. from which they were born—so avoiding
scientists as passionate as I am about These conditions made preparation and impacts to the pools and surrounding
nature, kinships ignited like the strike of teamwork a priority to staying safe and doing habitat is crucial. Vernal pools can be
a match. good work while having some fun. Although indicators of the quality and function of
we faced some difficult times, we always its surrounding ecosystem.
Each tract of land had its own unique found ourselves smiling at the end of the
terrain with pristine freshwater resources: day, ready for what the next day would bring.
ponds, lakes and streams. The most prom-
inent freshwater bodies were Flagstaff It’s a pleasure to look back at my photo
Lake in the Bigelow Mountain Range and logs and see places like Grand Falls,
the Kennebec and Dead Rivers. reflecting on that first year of work at
POWER. Despite some near run-ins with
At one point, I found myself waist- large animals, I made lasting friendships
deep in the Enchanted Stream. Many in the forests of Maine and learned a lot
field scientists know the uncomfortable along the way.
feeling of wet feet while hiking. After
several hours with wet feet, I decided The biggest reward is knowing that, long
to continue wading through the stream after I’m gone, the Dead River will con-
to capture the most accurate data rather tinue to flow, connecting with the mighty
than climbing the near-vertical banks. Kennebec on its way to the ocean.
POWER ENGINEERS 5vacated and remanded to EPA, the Biden has been formally held back under the new
administration will likely propose new Biden administration. On February 4, the
NEWS
greenhouse gas regulations for existing Interior Department delayed the effective
power plants. date of the rule and will re-open the public
Contact: Steven Babler, (913) 402-4215 comment period. At this point, incidental
BRIEFS
steven.babler@powereng.com take is still prohibited under the MBTA
until the final rule is fully implemented or,
2021 EPA MSGP Goes into Effect March 1 more likely, modified in some form.
On January 15, EPA issued the renewed Contact: Ben Bainbridge, (208) 788-0391
National Pollutant Discharge Elimination ben.bainbridge@powereng.com
System (NPDES) Multi-Sector General
Permit (MSGP) for stormwater discharges EPA Issues Guidance on NPDES Section
Stay informed on from industrial facilities. The permit will 402 Permitting
become effective on March 1 for portions On January 14, EPA issued guidance
environmental regulatory of the U.S. where EPA is the NPDES on applying the April 2020 Supreme
permitting authority. The EPA MSGP is Court ruling in County of Maui vs Hawaii
news and updates the baseline industrial stormwater permit Wildlife Fund. The ruling requires NPDES
that informs corresponding state industrial permits for discharges that travel through
stormwater permits during their renewal groundwater before reaching surface
periods. Based on recommendations water if the discharge to groundwater is
NATIONAL NEWS by the National Academies of Sciences, the “functional equivalent” of a direct
Biden Administration Releases Priority Engineering, and Medicine’s National discharge to surface water. This guidance
List of Agency Actions Under Review Research Council task force, the EPA reiterates that an actual discharge of a
On January 20, the White House announced MSGP has enhanced benchmarking pollutant is required before an NPDES
a non-inclusive list of recent actions by monitoring requirements, corrective action permit is needed and indicates that the
federal agencies that would be reviewed obligations, storm event planning and discharge must occur from a point source.
by the Biden administration as stated public notice criteria. Beginning March 1, It also discusses natural attenuation
in the “Executive Order on Protecting operators with an existing EPA MSGP must processes that may impact a discharge
Public Health and the Environment and have an updated Stormwater Pollution to groundwater so that its subsequent
Restoring Science to Tackle the Climate Prevention Plan (SWPPP) to meet the migration to surface water is no longer the
Crisis.” The list includes 48 actions under revised permit criteria and must submit “functional equivalent” of a release directly
the Environmental Protection Agency a renewal Notice of Intent to continue to surface water.
(EPA), which may result in acceptance, authorized discharges. Contact: Eric Riekert, (513) 326-1525
modification or removal of policies and Contact: Kelsey Krueger, CPESC eric.riekert@powereng.com
guidance, while recent rule-making may (210) 951-6428
face voidance under the Congressional kelsey.krueger@powereng.com EPA Finalizes Significant Contribution
Review Act. Finding Process for Source Category
Contact: Thomas Sullivan, P.E. Biden Administration Delays GHG Emissions
(512) 879-6632 MBTA Final Rule In January 2021, EPA published a
thomas.sullivan@powereng.com On January 7, the U.S. Fish and Wildlife framework for evaluating whether green-
Service (USFWS) published a final rule house gas (GHG) emissions from a source
U.S. Court of Appeals Vacates Affordable regarding “take” prohibitions under the category are significant and should be
Clean Energy Rule Migratory Bird Treaty Act (MBTA) stating regulated under New Source Performance
On January 19, the U.S. Court of Appeals that incidental take was not excluded Standards. EPA’s framework provides that
for the D.C. Circuit vacated the Affordable under the law. As a result, injury to or source categories can only be considered
Clean Energy (ACE) Rule and remanded mortality of birds listed under the MBTA to contribute significantly to dangerous
it back to EPA. The ACE Rule, published from actions such as electrocution from pollution due to their GHG emissions
on July 8, 2019, was the Trump admin- power lines, collisions with power lines, and be regulated under the Clean Air
istration’s greenhouse gas regulation for wind turbines, buildings, vehicles and the Act Section 111(b) if the amount of
existing coal-fired electric generating units, loss of nests during construction activities those emissions exceeds 3% of total
replacing the Obama administration’s would no longer be considered a take. As gross U.S. GHG emissions. For certain
Clean Power Plan. With the ACE Rule expected, implementation of this final rule source categories that emit above this
6 C u rren t sthreshold, a secondary criteria can be several important areas to possibly address to assure that standardized technical
used, such as source category emission in the update, which is anticipated to information addressing the replacement
trends and source category emissions in a be released the first quarter of 2021. of impacted resource functions is
global context. As part of this regulatory These anticipated revisions include an presented in permit applications. The
action, EPA determined that the electric update to definitions to provide clarity, SOPs encompass temporal losses; forms
utility generating units source category specifically addressing the appropriate of compensatory mitigation (restoration,
contributes significantly to dangerous air criteria for classification of a Recognized creation, rehabilitation, preservation and
pollution because GHG emissions from Environmental Condition (REC) and In Lieu Fee) and related ratios to impact;
this category are substantially above the a Historical REC; requirements for financial assurances; plan specifications;
3% threshold. conducting historical research to include invasive species; erosion control;
Contact: Lou Corio, (410) 312-7912 adjoining properties and addressing ecological performance standards; long
lou.corio@powereng.com data gaps and the addition of PFAS term monitoring and stewardship. Two new
as a non-scope item pending the final elements addressed in the SOPs include a
EPA Interim Strategy to Address PFAS Comprehensive Environmental Response, site selection checklist and thresholds of
through Certain NPDES Permits Compensation, and Liability Act impact for which compensatory mitigation
On November 30, EPA announced a new determination. Among other updates and is necessary.
interim NPDES permitting strategy to revisions, the 2021 standard is anticipated Contact: Cole Peters, PWS
address per- and polyfluoroalkyl substances to include additional clarification for the (207) 869-1432
(PFAS) chemicals in certain wastewater shelf life of a completed Phase I ESA. cole.peters@powereng.com
discharges. The new interim strategy Contact: Lindsey Branham
advises EPA permit writers to consider (513) 326-1565 EPA To Retain Current Ozone NAAQS
including the monitoring of wastewater lindsey.branham@powereng.com Effective December 31, 2020, EPA has re-
for PFAS compounds at facilities where tained the current Ozone National Ambient
these compounds may be expected in USFWS Delists Interior Least Tern as Air Quality Standard (NAAQS) without
wastewater. The interim strategy is directed Endangered Species revision. In reaching this decision, EPA
toward industrial stormwater permits and On January 12, the USFWS announced considered currently available scientific
municipal separate storm sewer system the removal of the interior least tern from evidence, policy analyses, advice from the
(MS4) permits. PFAS chemicals that the endangered species list. This news, Clean Air Scientific Advisory Committee
could be considered for monitoring under deemed a success under the Endangered (CASAC) and public comment on the
discharge permits are those which have Species Act (Act), comes after more than proposed decision.
a validated EPA analytical method; and, three decades of partnership between Contact: Pete Stevenson, (512) 579-3805
concurrent with this interim strategy, the the USACE and USFWS to monitor and pete.stevenson@powereng.com
EPA released a list of 40 PFAS compounds conserve the species. While the interior
that are the subject of analytical method least tern will no longer be protected STATE
development. This interim action is a under the Act, its protection will continue TCEQ to Receive Jurisdiction Over O&G
step by the EPA to ensure that federally under the MBTA. The USACE also plans Water Permits
enforceable wastewater monitoring for to continue monitoring and conservation On January 15, EPA and the Texas
PFAS can begin as soon as validated efforts for nearly 80% of the breeding Commission on Environmental Quality
analytical methods are finalized. population. (TCEQ) signed a memorandum of agree-
Contact: Dennis Schucker, Ph.D. Contact: Eric Duenkel, (865) 925-6372 ment to revise the delegation of NPDES
(513) 326-1549 eric.duenkel@powereng.com permitting authority for TCEQ to include
dennis.schucker@powereng.com discharges from oil and gas sites formerly
USACE New England Updates regulated by the Railroad Commission
Revisions Anticipated to ASTM Phase I Compensatory Mitigation SOP of Texas (RRC). New individual permit
ESA Standard In January, the U.S. Army Corps of applications should be remitted to TCEQ.
The current Phase I Environmental Site Engineers (USACE) New England District Individual permit applications pending
Assessment (ESA) standards are due to (District) updated its compensatory with EPA will be transferred to TCEQ for
sunset at the end of the year. Established mitigation standard operation procedures completion, unless under appeal or other
by the ASTM, the Phase I standard must (SOP) to offset wetland impacts. For legal review. Active individual EPA NPDES
be revised every eight years. Last revised more than 15 years (updated every 3 permits will remain effective until expiration
in 2013, the ASTM E50 Committee has to 5 years), the District has provided or until amendment/modification, at which
reviewed the standard and identified comprehensive mitigation guidance News Briefs >>> continued on page 8
POWER ENGINEERS 7News Briefs >>> continued from page 7
time TCEQ will take jurisdiction and re- the final testing results relating to the Public Comments Open for Louisiana
place EPA-issued permits with state-issued presence of PFAS in drinking water Climate Initiative Task Force
permits. Compliance monitoring for active from approximately 1,550 public water In fall 2020, the Governor of Louisiana
permits shall transfer to TCEQ. Access systems. Nearly 94% of the public signed an Executive Order establishing a
to Texas Pollutant Discharge Elimination drinking water systems tested revealed no Climate Initiative Task Force to address and
System (TPDES) General Permits must detection of PFAS compounds. Low levels make recommendations for the reduction
be added via NetDMR and/or the State of of PFAS, below the health advisory level of of GHG emissions originating in Louisiana.
Texas Environmental Electronic Reporting 70 parts per trillion, were detected in 6% The task force set the following net GHG
Systems (STEERS) platforms. of systems. The testing identified only two emission reduction goals: reduce by
Contact: Julie Morelli, P.G., REM public water systems in Ohio with PFAS 26–28% of 2005 levels by 2025; reduce
(210) 951-6424 concentrations above the state’s health by 40–50% of 2005 levels by 2030; and
julie.morelli@powereng.com advisory level. The Ohio EPA is currently reduce to net zero by 2050. Louisiana’s
working with these two public water total and per capita energy consumption
TCEQ Issues Draft 2021 MSGP systems to identify options to address any is among the top three states in the nation.
On December 11, the draft 2021 TPDES potential public health risks and is also A series of public meetings and townhall
MSGP was published by the TCEQ. Proposed continuing to monitor the water systems events commenced in late 2020 to collect
changes in the draft 2021 TPDES MSGP are with low PFAS levels to evaluate long comments and suggestions. The task force
numerous and include a provision to submit term trends. is slated to deliver an interim report to the
Delegation of Signature Authority forms via Contact: Ben Mignery governor in early February 2021.
STEERS, the requirement to post a sign (513) 326-1513 Contact: Jude Comeaux, (225) 590-3995
indicating permit coverage, clarifications ben.mignery@powereng.com jude.comeaux@powereng.com
to reporting requirements for Numeric
Effluent Limitations, updates to monitoring SRBC Implements General Permit for EPA Proposes to Approve Texas Oversight
and reporting requirements, various sector- Groundwater Remediation Projects of Coal Ash Management Program
specific changes and clarifications to On January 1, the Susquehanna River On December 3, 2020, EPA proposed to
the permit text throughout. Once the Basin Commission (SRBC) adopted its first approve the Texas partial permit program
2021 TPDES MSGP is issued, all existing General Permit (GP-01) for groundwater to manage coal combustion residuals
permittees will be required to update their withdrawals related to groundwater reme- (CCR) or coal ash in landfills and surface
SWPPPs to meet the requirements of the diation projects, potentially eliminating impoundments. If approved, Texas would
new permit and then submit a new Notice the need for an individual permit and a become the third state in the nation to
of Intent (or No Exposure Certification) via more involved application and approval operate a CCR permit. EPA enacted the
STEERS. Permit issuance and renewal process. The general permit also addresses Water Infrastructure Improvements for the
actions are anticipated to begin in consumptive use of withdrawn groundwater Nation Act of 2016, which provides states
August 2021. from remediation activities. GP-01 has the ability to develop and submit permit
Contact: Nathan Collier, CPESC lower application fees and is designed to programs to EPA for approval. Texas did
(210) 951-6425 streamline the application and approval not apply for certain provisions of the
nathan.collier@powereng.com process, avoid duplication of similar over- established federal CCR regulations for its
sight by federal and state agencies and permit program, thus is seeking approval
Ohio EPA Completes Drinking Water Test result in faster permit approvals. for its partial program.
Under PFAS Action Plan Contact: Jim Young, P.G. Contact: Steve McVey, P.G.
In December 2020, the Ohio EPA and (717) 942-1202 (512) 924-2841
the Ohio Department of Health released jim.young@powereng.com steve.mcvey@powereng.com
8 C u rren t sAN ATTORNEY’S
PERSPECTIVE
EPA’s COVID-19 Enforcement Discretion Policy: Will It Return?
Sam Ballard, Associate | Lloyd Gosselink Rochelle & Townsend, P.C.
T
he arrival of the COVID-19 EPA has not published information about Additionally, EPA responded to the
pandemic in early 2020 trig- how many enforcement discretion requests plaintiffs’ allegations that the Policy en-
gered unprecedented responses were received while the Policy was in place. couraged non-compliance, emphasizing
from all levels of government. But, we may soon learn the actual number that the Agency is afforded deference in
Stay-at-home orders and other restrictions of requests submitted as EPA receives determining its own priorities, especially
due to the pandemic arose and the further demands to release all enforcement those related to enforcement discretion.
Environmental Protection Agency (EPA) discretion requests to the public.
was inundated with questions from the The court ultimately dismissed the case,
regulated community about compliance. Two notable lawsuits were brought before ruling that the plaintiffs lacked standing
the court that challenged the Policy; both because they failed to show a concrete
In response, the EPA issued the Temporary in the Southern District Court of New York injury clearly traceable to EPA’s actions.
COVID-19 Enforcement Discretion Policy and filed months after EPA announced
(the Policy) on March 26, 2020. The the Policy. While that case concerned a requested
Policy’s objective was to allow enforcement adaptation of the Policy, separate litigation
discretion for events of non-compliance While EPA was defending these lawsuits ensued over EPA’s authority to adopt
resulting from pandemic-related issues. and its decision to issue the Policy, the the Policy in the first place. New York v.
Agency announced that the Policy would EPA was filed by nine states (New York,
Under the Policy, EPA would not pursue terminate on August 31, 2020. Once the California, Illinois, Maryland, Michigan,
enforcement for non-compliance with Policy terminated, EPA reverted back to its Minnesota, Oregon, Vermont and Virginia).
routine monitoring and reporting require- pre-COVID-19 enforcement policy. The plaintiff-states in this case voluntarily
ments if, on an individual basis, the agency dismissed the lawsuit on September 9,
determined that the COVID-19 pandemic The first lawsuit, Natural Resources 2020, shortly after the Policy terminated
caused non-compliance. However, EPA Defense Council v. EPA, was filed by a on August 31, 2020.
also made it clear that the Policy would coalition of 15 environmental advocacy
not apply to preventing and reporting groups who claimed that the Policy In conclusion, EPA’s Temporary COVID-19
accidental releases. promoted non-compliance and requested Enforcement Discretion Policy provided
adaptation of the Policy. The plaintiffs some needed flexibility to the regulated
The Policy allowed regulated entities to petitioned EPA to issue a final rule community. The unprecedented impact
specifically request enforcement discretion requiring that regulated entities notify the of the COVID-19 pandemic may have
from EPA for non-compliance issues public when taking advantage of the Policy. otherwise caused a wave of pandemic-
caused by COVID-19, such as worker caused enforcement actions.
shortage, travel restrictions and unavail- EPA argued that the plaintiff-environmental
able testing laboratories. groups did not challenge the Policy itself, Nonetheless, the struggle to contain
but instead, wrongly demanded the COVID-19 continues and regulated entities
Entities would be required to submit the Agency undertake a multi-state ruling that throughout the country could still face
following information: (1) the potential would impose an enforceable requirement. future compliance challenges. With that in
non-compliance and its relation to Furthermore, EPA argued that, as a result, mind, it will be interesting to see whether
COVID-19; (2) how the entity attempted to all regulated entities unable to comply the Policy makes a return in 2021, and if
comply; (3) the anticipated duration of the with the Policy’s monitoring and reporting so, whether further litigation will ensue.
non-compliance; and (4) what actions the requirements because of COVID-19 would
entity would take to minimize the impact have to file a public justification.
of the non-compliance.
POWER ENGINEERS 9PRESORTED
STANDARD
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AUSTIN, TEXAS
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Wastewater Testing >>> continued from page 3
far-reaching actions necessary for a single Despite these challenges, the program was
positive detection. a success—only 65 positive cases were
identified by the university, and students were
The consequences of a single false positive able to remain on campus throughout the fall
are far greater than data we are accustomed 2020 semester. The university is continuing
to working with and go beyond expensive indi- the program for the spring 2021 semester—
vidual testing of each student in a residence. with an adapted plan based on lessons we
There are many impacts of quarantining a learned along the way. We are grateful to have
residence hall full of students, including fear had the opportunity to develop and implement
of infection, providing meals for quarantined this program, and we are proud of its results
students, the potential of students leaving and benefits for this university.
campus, staffing a response and testing team
and the public relations considerations for In contrast, most colleges are relying on routine
each outbreak reported in the local news. individual testing of all students at intervals
ranging from two tests per week to two tests
Challenges, Results and Replicating Success per month for each student. This wastewater
No substantive project comes without chal- monitoring program eliminated much of the
lenges, particularly those with little precedent. need for regular individual testing, including
Sampling challenges included managing low the management, staffing, cost, time and in-
flow conditions and blockages, equipment convenience of doing so.
troubleshooting and battery failures, and iden-
tifying positions within a given manhole to Based on our experiences, we are confident
ensure that a sample could be drawn. Problem that this type of monitoring program can be
solving and creative solutions were key protective and cost effective for a wide variety
elements of the field efforts. of institutions and businesses.
EHS | Planning | Permitting & Compliance | Engineering | Air, Water & Waste | Ecological & Cultural | Site Assessment & Corrective Action
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