STRATEGIC PLAN CHANGES

Michelle McKeever Branch Chief, Office of Compliance

Environmental Protection Agency

Improving Compliance

Through

Regulatory Structure and Advanced Technology

AAPCA Web Conference

David Hindin

March 27, 2014

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Next Generation Compliance and States

U.S. Environmental Protection Agency

Why Next Generation Compliance?

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Noncompliance

Information on compliance often not readily available

Government resources not adequate to address large

regulated universe with just single facility inspection/

enforcement model

Not getting all the benefits expected from our rules and

permits

Better information: better targeting, more innovation

Next Generation Compliance – What is it?

1. More effective rules

2. Advanced monitoring

technology

3. Electronic reporting

4. Increased transparency

5. Innovative enforcement

U.S. Environmental Protection Agency

GMAP (geospatial measure of air pollution) tool can be used to estimate amount and location of methane

and VOC emissions. Includes IR camera, sampling ports, GPS, methane meter.

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#1 More effective rules and permits, easier to implement

5 principles

1. Clearer applicability

2. Structural

3. Monitoring: advanced monitoring

technology, -self and third-party

4. E-Reporting and transparency

5. Market forces and incentives

Example: proposed rule for O&G air pollution

controls (like IRS reporting for interest income)

U.S. Environmental Protection Agency 6

Principle 1 - Enable everyone to easily identify who is

regulated and the applicable requirements

A. Focus regulatory requirements on fewer, better

defined “upstream” sources” (supply chain)

B. Consider: would simple rules with high compliance

deliver more benefits than complicated rules with

lower compliance?

C. Use clear and objective regulatory requirements

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Principle 2 - Structure regulations to make

compliance easier than noncompliance

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A. Build in physical structures and product designs to

make noncompliance difficult

B. Use immediate feedback technology

C. Build in self-implementing regulatory consequences to

deficiencies and noncompliance

Principle 3 - Require regulated entities and/or 3rd

parties to assess compliance and take steps to

prevent noncompliance

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A. Periodic self-monitoring and self-certifications for

compliance-related activities and outcomes

B. 3rd-party compliance verification or information

reporting

C. Continuous Emission Monitoring Systems (CEMS)

D. Fenceline monitoring and other remote

emissions/pollutant monitoring

Principle 4 - Leverage accountability and

transparency

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A. Electronic reporting to the government with smart tools to

guide regulated entity.

B. Public accountability via websites, mailings, signage, social

media to provide the public and stakeholders with

compliance information

Important compliance driver beyond government review of

individual reports.

Principle 5 - Leverage benefits, market forces, and

other incentives that promote compliance

A. Empower the local community to encourage

compliance

B. Show investors and consumers when

products and services are compliant

C. Harness market forces to promote

compliance (e.g., tradable emission reduction credits)

D. Provide and highlight benefits to regulated entities from

compliance (e.g., energy efficiency, cost savings)

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#2 Advanced monitoring technology

Find out about pollution in real

time

Facility feedback loops – can

prevent pollution before it

happens

Fence line monitoring

Remote sensing

U.S. Environmental Protection Agency 12

EPA monitoring showed that a coke plant – claiming it was a minor source of air pollution -- was actually a substantial source of benzene

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Photoionization Infrared Detector Camera

Examples of advanced monitoring tools used in EPA’s air program

Advanced Monitoring: Infrared camerasible pollution becomes “visible.”

U.S. Environmental Protection Agency 14

Estimated Emissions – Underestimated air emissions from flares

Actual emissions (in red) at Marathon and BP were 25 times and 10 times greater, respectively, than engineering estimates (in blue)

U.S. Environmental Protection Agency 15

Examples of advanced technology for water monitoring

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EPA’s monitoring buoy – “sonde” - in Charles River collects and transmits data

Assesses water quality and cyanobacterial algal blooms

Promise of Advanced Monitoring

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Greatly-reduce pollution through: 1. More timely and effective self- and third-

party monitoring 2. Better information for regulated entities to

help reduce & prevent releases & potentially save money by catching leaks early

3. Transparency and public accountability drive improved performance

4. Find and fix pollution problems through more effective government inspections

5. Address serious violations through more effective enforcement

#3 Electronic reporting

System with smart tools to guide user

Increase accuracy, reduce error correction costs

Supports transparency tools

Ohio NPDES e-reporting success story

EPA NPDES e-reporting rule proposed July 2013

New EPA Policy Statement to make e-reporting default assumption in new regulations

ECOS/EPA E-Enterprise for the Environment

One example of a private sector

e-reporting tool:

U.S. Environmental Protection Agency 18

E-reporting saves resources, promotes compliance

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Ohio’s conversion to e-reporting for NPDES DMR data

As eDMR usage increased, non-compliance decreased – by over 50% in the year after implementation

Also saved 6 FTE

0%

20%

40%

60%

80%

100%

0

2000

4000

6000

8000

10000

Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun

Facilit

ies u

sin

g e

DM

R

Nu

mb

er

of

Perm

it V

iola

tio

ns

Reporting Month

NPDES DMR Compliance in Ohio FY 2009 - 7/08-6/09

#4 Increased Transparency

Public accountability drives better facility, individual, community, and government performance.

Well designed transparency can drive change. E.g., SDWA Consumer Confidence

Reports

Restaurant health inspection grades

As people pay more attention to data, its quality tends to improve.

U.S. Environmental Protection Agency 20

Enforcement and Compliance History Online (ECHO)

http://echo.epa.gov/

Transparency Examples

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New York State Sewage

Pollution Right-To-Know

Act

Connecticut has similar law

Ohio EPA generic permit

condition for outfall

signage

Transparency: Real Time Info About

CSO Discharges in DC

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#5 Innovative Enforcement

Use Next Gen tools in enforcement settlements o Advanced monitoring, e-reporting, public accountability, transparency, 3rd party

certifications

o Learn from experience what’s effective

Enhance targeting and data analysis to identify and address most serious violations o New information from e-reporting and advanced monitoring will help

o Multiple data analysis projects underway

New enforcement approaches. Examples: o Drinking water: targeting and rigid deadlines = 74% reduction in serious violators

o Flaring: enforcement alert plus measurement of effectiveness

U.S. Environmental Protection Agency 23

Example - CAA settlement with BP Whiting

(Indiana)

Next Gen tools included in

settlement:

Fence line monitors with

community consultation

Report fence line data weekly

Report continuous emission

monitoring data quarterly

Maintain data for 5 years and

review with public upon

request

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Example - CAA Settlement with Sunoco

(Philadelphia)

Next Gen tools included in draft settlement:

Fence line monitors located near refinery and data posted weekly More monitors than BP

Whiting

Post continuous emissions data monthly

Maintain data for 5 years and review with community as requested

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Value of Next Generation Compliance

for States

Improve ability to implement environmental programs with

limited resources and ultimately reduce pollution and better

protect public health and environment.

Paper based reporting will become electronic, reducing burden

on states and their regulated entities with better data quality.

Advanced monitoring will give better information on

environmental conditions, specific pollution sources, regulated

entity performance and government performance

U.S. Environmental Protection Agency 26

Value of Next Generation Compliance

for States: continued

Enhanced transparency:

Citizens, regulated entities and the government have more

complete, shared information on environmental conditions,

pollution sources and performance of industry and government.

New Opportunities to Innovate:

Better information on compliance rates, environmental

conditions, and pollution sources allow focus on outcome

measures of environmental improvements.

Can try new program implementation approaches with data to

evaluate their effectiveness.

U.S. Environmental Protection Agency 27

States as Innovators

EPA is interested in learning from states about projects they

have implemented with one or more of the five Next Gen

components.

EPA encourages states to propose Next Generation

Compliance projects to pilot.

E.g., requiring regulated sources to publicly post monitoring

data on their websites.

EPA will compile state Next Generation Compliance

examples into its ongoing research and share lessons with

other states.

U.S. Environmental Protection Agency 28

THE ENVIRONMENTAL DEFENSE FUND’S PERSPECTIVE ON NEXT GENERATION

COMPLIANCE

Vickie Patton General Counsel, EDF

Office of Compliance and

Enforcement

Ramiro Garcia, Jr.

Deputy Director

AAPCA Webinar

101 Technology Program Implementation – Texas March 27, 2014

Use of Technology

Optical Gas Imaging Camera History

Typical camera package

Staff Training

Flyovers

Use during investigations

Use of Technology

Optical Gas Imaging Camera

History

• In 2005 TCEQ purchased two cameras

from FLIR

• Staff attended training provided by FLIR

• Training very important to ensure staff

understand

• How to use camera

• What they are seeing

• TCEQ staff did a great deal of bench

work followed by extensive field testing

Use of Technology

Optical Gas Imaging Camera

Staff Training

• Staff attend a 5 day training course

provided by FLIR

• Certification good for 5 years

• Additionally staff get internal on the job

training with senior staff

• Proper training is crucial

• Agency looking to expand internal

training

Use of Technology

Optical Gas Imaging Camera

Typical Camera Package

• Typical purchase consists of

• Camera

• 23/25 mm lens or 38/50 mm lens

• An additional 92/100 mm lens is

purchased

• Our experience tells us the 38/50 mm

lens is the most versatile

Use of Technology

Optical Gas Imaging Camera

Flyovers

• In 2005 the Agency contracted with LSI

to conduct aerial surveys of Houston

Ship Channel

• LSI has a FLIR GasFindIR optical gas

imaging camera mounted on a

helicopter

• Findings

• On the ground follow up

Use of Technology

Optical Gas Imaging Camera

Flyovers continued

• The TCEQ worked with the various

companies to reduce the number of

landings

• Able to reduce 7,184 tons of emissions

• Lessons learned applied to guidance to

better calculate landing loss emissions

from floating roofs

• Subsequent rulemaking

Use of Technology

Optical Gas Imaging Camera

Other flyovers

• Used to conduct aerial surveys in the oil

and gas fields

• Follow up on the ground investigations

conducted by Regional staff

• Questionaires

• Site re-imaged by Regional staff

Use of Technology

Optical Gas Imaging Camera

Use during investigations

• TCEQ currently owns 12 cameras

• Used by staff as a screening tool

• Just because you see emissions,

doesn’t necessarily mean you have a

violation

• Fence line observations

• During onsite investigations

Use of Technology

Optical Gas Imaging Camera

Use during investigations

• Identify uncombusted VOCs from flairs

• Used post landfall during Hurricane Rita

• Identify sources of emissions

• Oil and gas components

• Landfills

• Processing towers

• Truck/barge/ship/railcar loading and

unloading

Investigation Tools

GasFindIR® camera

Toxic Vapor Analyzer

Mini RAE Summa canister

GasFindIR®

Using the Gas Find IR Camera can potentially locate under reported or unrecognized VOC source types

The camera is capable of locating and imaging leaks from various sources of air pollution

VOC Imaging

Any Questions?

Office of Compliance & Enforcement

(512) 239-5100

Remote Sensing and the Legal Implications

By Todd Janzen, Partner at Plews Shadley Racher & Braun LLP

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Dow Chemical v. United States, 476 US 227 (1986) (Justice Burger)

• The United States’ Supreme Court’s leading ruling on the permissibility of aerial surveillance by government agencies.

• EPA use of aerial surveillance to find Clean Air Act violations

Dow Chemical v. United States, 476 US 227 (1986) (Justice Burger)

Two part test:

• Is there an actual (subjective) expectation of privacy in the property searched?

• Is the expectation must be one that society recognizes as “reasonable”?

Dow Chemical v. United States, 476 US 227 (1986) (Justice Burger)

• Open Fields vs. Curtilage

United States v. Causby, 328 U.S. 256 (1946)

• Government taking by low flying aircraft over chicken farm

• Landowner owns the “enveloping atmosphere”

Drone Usage in Agriculture

• 80% of all drone usage will be in agriculture

• 100,000 jobs by 2025

• Endless potential applications

• - USA Today, March 24, 2014

Drone Usage by Government

• FAA Regulations

• Constitutional Concerns

• Trespass Concerns

Contacts Michele McKeever

Mckeever.Michele@epa.gov

David Hindin Hindin.David@epa.gov

Vickie Patton vpatton@edf.org

Ramiro Garcia ramiro.garcia@tceq.texas.gov

Todd Janzen tjanzen@psrb.com www.JanzenAgLaw.com

Rebekah Fitzgerald rfitzgerald@csg.org