Environmental Compliance Update – April 2011

Additions to the Environmental Compliance Portfolio

During March 2011, over 100 pages of analysis and other materials were added to the Environmental Compliance Portfolio under the following topics:

  • Air Quality Compliance,
  • Hazardous Waste Compliance,
  • Wastewater and Water Quality Compliance, and
  • Business and the Environment (sustainable development and climate change).

Air Quality Compliance Materials and Tools

March 2011 additions to the Air Quality Compliance module included:

—Air Quality Regulation Changes Smart Chart, and
—Federal Greenhouse Gas Reporting Smart Chart.
To access the practice tools, go to Environmental Compliance > Practice Tools > Environmental Compliance.

HOT TOPICS include:

  • Gold Mining Operations Subject to New Emission StandardsOn February 17, 2011 (76 FR 9450–9489), EPA issued final maximum achievable control technology (MACT) standards for gold mine ore processing and production. The new MACT standards regulate mercury emissions from gold mine ore processing and production facilities that are area sources, and that use any of the following thermal processes: roasting operations, autoclaves, carbon kilns, pregnant solution (preg) tanks, electrowinning, mercury retorts, and melt furnaces. Area sources are facilities whose potential to emit hazardous air pollutants (HAPs) is <10 tons per year (tpy) for any single HAP, and <25 tpy for any combination of HAPs. The agency indicates that 21 gold mine ore processing and production facilities are covered under the final rule. The majority, and the largest, of these facilities are located in Nevada. Other facilities currently operate in Alaska, California, Colorado, Montana, and Washington. All U.S. gold mine ore processing and production facilities are minor sources of HAPs. See MACT Standards Issued for Gold Mine Ore Processing and Production.

Hazardous Waste Compliance Materials and Tools

March 2011 additions to the Hazardous Waste Compliance module included:

  • Four new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Four new case summaries were added, along with the associated court decisions.
  • Volume 29, Issue 2 of the Hazardous Waste Consultant was added. A printable/downloadable version of this issue is available to Internet subscribers at Environmental Compliance > Hazardous Waste Compliance > Hazardous Waste Regulatory Analysis Articles > Hazardous Waste Consultant Archive >.

HOT TOPICS include:

  • Adding a Vapor Intrusion Component to the Hazard Ranking System—The Hazard Ranking System (HRS) is used to determine the relative threats posed by sites contaminated with hazardous substances. By evaluating numerous factors related to waste characteristics, site conditions, and proximity of potentially exposed individuals and sensitive environments, the HRS can be used to prioritize EPA’s cleanup activities. If a site achieves a high enough score under the HRS, it may be added to the National Priorities List (NPL) and become eligible for cleanup using monies from the Superfund. On January 31, 2011 (76 FR 5370–5373), EPA requested public input on whether a vapor intrusion component should be added to the HRS. The addition of such a component would allow EPA to directly consider the human exposure to contaminants that enter building structures through the subsurface environment and, therefore, allow vapor intrusion sites to be evaluated for placement on the NPL. See Superfund Hazard Ranking System May Be Modified to Add Vapor Intrusion Component.

Wastewater and Water Quality Compliance Materials and Tools

March 2011 additions to the Wastewater and Water Quality Compliance module included:

  • One new regulatory analysis article was added, along with the supporting Federal Register document.
  • Two court decisions were added.

HOT TOPICS include:

  • Regulating Perchlorate in Drinking Water—On February 11, 2011 (76 FR 7762–7767), EPA issued a final regulatory determination for perchlorate under the Safe Drinking Water Act (SDWA). The regulatory determination marks the beginning of a process leading to issuance of a national primary drinking water regulation for perchlorate. The agency intends to propose a national primary drinking water regulation for perchlorate within 24 months. EPA has determined that perchlorate meets the SDWA criteria for regulating a contaminant. Specifically, the agency has determined that: 1) perchlorate may have an adverse effect on human health; 2) it is known to occur, or there is a substantial likelihood that it will occur, in public water systems with a frequency, and at levels, of public health concern; and 3) regulation of perchlorate presents a meaningful opportunity for health risk reduction for persons served by public water systems. See EPA to Regulate Perchlorate in Drinking Water.

Business and the Environment

The March 2011 issue of the Business and the Environment newsletter included 13 stories on sustainable development and 2 stories on recent climate change developments.

HOT TOPICS include:

  • Beyond Corporate Social Responsibility—It’s time for companies to move beyond corporate social responsibility (CSR) and embrace “a more sophisticated form of capitalism, one imbued with a social purpose,” according to Michael E. Porter and Mark R. Kramer, writing in a recent edition of the Harvard Business Review. Economic value creation is the driving force behind their concept. The two argue that capitalism needs to go back to its roots, when the needs of society were an integral concern of the company. Their article, “The Big Idea: Creating Shared Value,” proposes that the way for businesses to regain credibility and legitimacy with the public is through a new approach that embraces economic and societal concerns. See Shared Value.

 

Go to http://hr.cch.com/environmental/ for more information on the Environmental Compliance Portfolio.

Analysis and Other Materials Added to the Environmental Compliance Portfolio in March 2011

Air Quality Compliance Materials and Tools

Air Quality Regulatory Analysis Articles

NAAQS

Additional Area Designations for 2006 PM-2.5 NAAQS Issued
On February 3, 2011 (76 FR 6056–6066), EPA issued additional air quality designations for the 2006 24-hour national ambient air quality standards (NAAQS) for PM-2.5 (particulate matter with an aerodynamic diameter of 2.5 microns or less). The final rule designates part of Pinal County, Arizona as nonattainment for the 2006 PM-2.5 NAAQS. In addition, the final rule designates the Plumas County, California and Shasta County, California areas as unclassifiable/attainment. The final rule also corrects designations for two areas: Ravalli, Montana and Knoxville, Tennessee.

EPA Proposes to Retain Current Carbon Monoxide Air Quality Standards
On February 11, 2011 (76 FR 8158–8220), EPA proposed to retain the current national ambient air quality standards (NAAQS) for carbon monoxide (CO). The current CO NAAQS were promulgated on April 30, 1971, and are set at 9 ppm with an eight-hour averaging time, and at 35 ppm with a one-hour averaging time, neither to be exceeded more than once per year. The agency has proposed to find that the current standards are adequately protective of human health. However, the proposed rule would revise the ambient air quality monitoring requirements for CO such that monitoring sites must be located near roads where mobile source emissions can lead to increased ambient CO concentrations.

NESHAP/MACT

Area Source Standards for Gasoline Distribution and Dispensing Facilities Revised
On January 24, 2011 (76 FR 4156–4185), EPA revised the maximum achievable control technology (MACT) standards for area source gasoline distribution facilities and gasoline dispensing facilities. Significantly, the January 24, 2011 final rule revises the definition of “gasoline distribution facility” to include any stationary facility that dispenses gasoline into the fuel tank of a motor vehicle, motor vehicle engine, nonroad vehicle, or nonroad engine. Previously, gasoline distribution facility was defined as a stationary facility that dispenses gasoline into the fuel tank of a motor vehicle. Under the final rule, regulated gasoline distribution facilities include not only sources used to fuel motor vehicles, but also facilities that dispense gasoline into lawn equipment, boats, test engines, landscaping equipment, generators, pumps, and other gasoline-fueled engines and equipment.

MACT Standards Issued for Gold Mine Ore Processing and Production
On February 17, 2011 (76 FR 9450–9489), EPA issued final maximum achievable control technology (MACT) standards for gold mine ore processing and production. The new MACT standards regulate mercury emissions from gold mine ore processing and production facilities that are area sources, and that use any of the following thermal processes: roasting operations, autoclaves, carbon kilns, pregnant solution (preg) tanks, electrowinning, mercury retorts, and melt furnaces. Area sources are facilities whose potential to emit hazardous air pollutants (HAPs) is <10 tons per year (tpy) for any single HAP, and <25 tpy for any combination of HAPs. The agency indicates that 21 gold mine ore processing and production facilities are covered under the final rule. The majority, and the largest, of these facilities are located in Nevada. Other facilities currently operate in Alaska, California, Colorado, Montana, and Washington. All U.S. gold mine ore processing and production facilities are area sources of HAPs.

Revisions Proposed to Primary Lead Smelting MACT Standard
On February 17, 2011 (76 FR 9410–9447), EPA proposed to revise the maximum achievable control technology (MACT) standards for primary lead smelting to address the agency’s residual risk and technology review of the standards. The proposed rule would establish an ambient lead concentration limit of 0.15 µg/m3, and set an emission cap of 0.91 tons per year (tpy) from lead refining and furnace operations. In addition, the proposed rule would reduce the facility-wide lead emission cap from 1.0 to 0.22 pounds of lead per ton produced.

NSPS/Emission Guidelines

Sixteen New Alternatives to Standard Emission Test Methods Available
On February 22, 2011 (76 FR 9777–9780), EPA announced its approval of 16 broadly applicable alternatives to standard test methods. Owners/operators can voluntarily choose to use the alternatives without further site- or facility-specific approval from the agency. The February 22, 2011 notice identifies broadly applicable alternative test method approval decisions issued between January 1, 2010 and December 31, 2010.

Reviews of Court Decisions and Consent Decrees

DC Circuit Court Denies Challenge to Renewable Fuel Program Revisions
On December 21, 2010, the U.S. Court of Appeals for the District of Columbia Circuit rejected challenges to revisions to federal renewable fuel regulations (National Petrochemical and Refineries Association v. EPA, No. 10-070 [D.C. Cir. Dec. 21, 2010]). It was argued that the revisions to the renewable fuel program regulations violated statutory requirements setting separate biomass-based diesel volume requirements for 2009 and 2010, were impermissibly retroactive, and violated statutory lead time and compliance provisions. In the decision, the court concluded that EPA did not lose its authority to promulgate a final rule when the agency missed a statutory deadline. The court also concluded that, because the agency had considered the benefits and burdens of its approach in the final rule, a remand of the final rule would not serve the purpose Congress intended when it revised the renewable fuel regulations.

Court Upholds California Air District Rule Limiting Emissions From Development Sites
In a December 7, 2010 decision, the U.S. Court of Appeals for the Ninth Circuit upheld a San Joaquin Valley Unified Air Pollution Control District rule that imposes fees on developers who fail to adequately mitigate the air pollution impacts of large construction projects (National Association of Home Builders v. San Joaquin Valley Unified Air Pollution Control District, No. 08-17309 [9th Cir. Dec. 7, 2010]). The National Association of Home Builders (NAHB) filed a CAA preemption lawsuit to overturn the District’s Rule 9510. The rule requires developers of certain large projects to quantify a project’s emissions during construction and when completed. In the decision, the court held that the rule does not directly regulate emissions from off-road construction equipment, and is therefore not preempted by federal law.

Hazardous Waste Compliance Materials and Tools

Analysis of Major Hazardous Waste Issues

Emergency Planning and Community Right-to-Know Act (EPCRA)

2009 TRI Data Show Decrease in Toxic Chemical Releases, and EPA Answers Frequent Questions
EPA released a summary of the 2009 national toxics release inventory (TRI) data in a December 2010 report titled “2009 Toxics Release Inventory National Analysis Overview.” The 2009 report compiles TRI data gathered from 20,797 facilities across the United States, and compares the 2009 data with preceding years. According to the 2009 TRI data, reporting facilities disposed, or otherwise released, a total of approximately 3.4 billion lbs of toxic chemicals to the environment during 2009. This represents a decrease of 480 million lbs, or more than 12%, in total reported releases between 2008 and 2009.

Hazardous Waste Regulatory Analysis Articles

CERCLA

Superfund Hazard Ranking System May Be Modified to Add Vapor Intrusion Component
The Hazard Ranking System (HRS) is used to determine the relative threats posed by sites contaminated with hazardous substances. By evaluating numerous factors related to waste characteristics, site conditions, and proximity of potentially exposed individuals and sensitive environments, the HRS can be used to prioritize EPA’s cleanup activities. If a site achieves a high enough score under the HRS, it may be added to the National Priorities List (NPL) and become eligible for cleanup using monies from the Superfund. On January 31, 2011 (76 FR 5370–5373), EPA requested public input on whether a vapor intrusion component should be added to the HRS. The addition of such a component would allow EPA to directly consider the human exposure to contaminants that enter building structures through the subsurface environment and, therefore, allow vapor intrusion sites to be evaluated for placement on the NPL.

Contact Numbers for National Response Center Changed
CERCLA requires any person in charge of a vessel or facility to immediately notify the National Response Center (NRC) when there is a release of a hazardous substance in a quantity that equals or exceeds its reportable quantity in any 24-hour period. On February 22, 2011 (76 FR 9665–9666), EPA issued a final rule that corrects telephone and facsimile numbers for the NRC.

Update on the National Priorities List
CERCLA requires that EPA maintain the NPL to identify sites with known or threatened hazardous substance releases that warrant remedial action. Between July 1, 2010 and February 28, 2011, EPA added 7 sites to the general Superfund section of the NPL, deleted 4 entire sites and portions of 4 sites from the NPL, proposed adding 9 new sites to the NPL, withdrew the proposed listing for 1 site, proposed deleting a portion of 1 site, and added 15 general Superfund sites and 2 federal facilities sites to the NPL construction completion list.

Reviews of Court Decisions and Consent Decrees

United States Not a CERCLA Operator or Arranger for Issuing Dredging Permits
In a December 7, 2010 decision, the U.S. District Court for the Western District of Washington ruled that the United States is not liable under CERCLA Section 113(f) for hazardous waste disposal at a Superfund site in Washington (United States v. Washington State Department of Transportation, No. 3:08-cv- 05722 RJB [W.D. Wash. Dec. 7, 2010]). The U.S. Army Corps of Engineers (Corps) issues permits to private parties that authorize dredging activities in the Thea Foss Waterway, which is part of the Commencement Bay-Nearshore Tideflats Superfund site near Tacoma, Washington. The Washington State Department of Transportation (WSDOT) sought contribution from the Corps as a potentially responsible party at the site, alleging that the Corps’ permitting activities made it liable as an “operator” of the waterway and/or an “arranger” of disposal of hazardous waste in the Waterway. However, the court concluded that WSDOT had failed to demonstrate that the Corps permitting activities created either operator or arranger liability.

State Superfund Law Does Not Shield Former Homeowners From Liability for Leaking Heating Oil
On December 13, 2010, the Court of Appeals of the State of Washington ruled that the Washington state Superfund law does not shield former homeowners from liability for home heating system oil leaks that occurred when they owned the property (Grey v. Leach, No. 63221-3-I [Wash. Ct. App. Dec. 13, 2010]). In the decision, the court concluded that the “innocent purchaser” defense does not apply because the former owners had “caused or contributed” to the release, even though they were unaware of the leaks. Further, the court determined that the “domestic purpose” defense does not apply because leaking home heating oil is not a domestic use.

State Compact Has Authority to Prohibit LLRW Shipment to Utah Facility
On November 9, 2010, the U.S. Court of Appeals for the Tenth Circuit ruled that the eight-state Northwest Interstate Compact on Low-Level Radioactive Waste Management (Northwest Compact) has the authority to bar a shipment of foreign-generated low-level radioactive waste (LLRW) to a disposal facility in Clive, Utah that is owned by EnergySolutions (EnergySolutions, LLC v. State of Utah, No. 09-4122, 09-4123, 09-4124 [10th Cir. Nov. 9, 2010]). The appeals court found that the facility’s state-issued license requires the facility to obtain permission from the Northwest Compact prior to accepting any waste for disposal. Accordingly, the court concluded that the Northwest Compact terms control in the particular situation, and reversed and remanded a prior district court ruling.

Environmental Remediation Firm May Be Liable as a CERCLA “Operator”
In a November 12, 2010 decision, the U.S. District Court for the Northern District of California ruled that an environmental consulting firm could be held liable as an “operator” under CERCLA for spreading contamination to a deeper, previously clean aquifer at a California site (KFD Enterprises, Inc. v. City of Eureka, No. C-08-4571 MMC [N.D. Calif. Nov. 12, 2010]). In the case, it was alleged that the environmental consulting firm drilled wells that were screened across two formations, allowing chlorinated solvent contamination from the upper aquifer to move down into the lower aquifer. The district court concluded that the owner of a dry cleaning firm at the property had alleged sufficient facts to show that the consulting firm may have CERCLA operator liability.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Issues

 

Water Quality

EPA to Regulate Perchlorate in Drinking Water
On February 11, 2011 (76 FR 7762–7767), EPA issued a final regulatory determination for perchlorate under the Safe Drinking Water Act (SDWA). The regulatory determination marks the beginning of a process leading to issuance of a national primary drinking water regulation for perchlorate. The agency intends to propose a national primary drinking water regulation for perchlorate within 24 months. EPA has determined that perchlorate meets the SDWA criteria for regulating a contaminant. Specifically, the agency has determined that: 1) perchlorate may have an adverse effect on human health; 2) it is known to occur, or there is a substantial likelihood that it will occur, in public water systems with a frequency, and at levels, of public health concern; and 3) regulation of perchlorate presents a meaningful opportunity for health risk reduction for persons served by public water systems.

Court Decisions

The following court decisions were added in March 2011:

  • Natural Resources Defense Council v. County of Los Angeles, No. 10-56017 (9th Cir. Mar. 10, 2011)—Appeals court finds Los Angeles County Flood Control District liable for storm water discharges that exceed limits established in its National Pollutant Discharge Elimination System (NPDES) permit.

 

  • National Pork Producers Council v. EPA, No. 08-61093 (5th Cir. Mar. 15, 2011)—Appeals court vacates the requirement that concentrated animal feeding operations that “propose to discharge” must obtain NPDES permits, but upholds the requirement for facilities that are discharging to obtain permits.

News

Business and the Environment

The March 2011 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:

Focus Report

  • Shared Value

Perspectives

  • Boston Solutions Lab 2010

Corporate Reporting

  • Sustainability Reporting Not Just an Academic Exercise
  • Virgin Media Goes Digital

Corporate Initiatives

  • Gone Fishing: Marriott Hooks Sustainable Seafood
  • Nuclear Maritime Propulsion
  • GE to Buy 25,000 Electric Vehicles By 2015
  • Proposed Regulations May Shut Coal Plants
  • Solar Plant Planned in South Africa
  • Whale of a Scandal in Japan’s Fisheries Agency

Product Stewardship and Takeback

  • Nanotechnology Regulations Lag Development
  • Toxic Chemicals May Get Greater Scrutiny in the United States

ISO Update

  • ISO 26000, Conclusion

Climate Change Update

  • Food Security Wanes as World Warms
  • World Could Heat Up 4°C in 50 Years