Environmental Compliance Update – February 2010

Additions to the Environmental Compliance Portfolio


During January 2010, 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


January 2010 additions to the Air Quality Compliance module included:
• 11 new regulatory analysis articles were added, along with supporting Federal Register documents.
• Two new case summaries were added, along with associated court decisions.
• Volume 20, Issue 1 of the Air Pollution Consultant was added. A printable/downloadable version of this issue is available to Internet subscribers at Environmental Compliance > Air Quality Compliance > Air Quality Regulatory Analysis Articles > Air Pollution Consultant Archive >.


HOT TOPICS include:

New Air Quality Standard for SO2 Proposed—On December 8, 2009 (74 FR 64810–64881), EPA proposed to revise the primary national ambient air quality standards (NAAQS) for sulfur oxides by establishing a new one-hour sulfur dioxide (SO2) standard within the range of 50–100 ppb. The NAAQS for sulfur oxides are measured as SO2. The new one-hour SO2 standard would be based on the three-year average of the annual 99th percentile (or, alternatively, the 4th highest) of one-hour daily maximum concentrations. The agency has also proposed to revoke the existing 24-hour and annual primary SO2 NAAQS. See New Primary Ambient Air Quality Standard for Sulfur Dioxide Proposed.
Greenhouse Gas “Endangerment” and “Cause or Contribute” Findings—In a December 15, 2009 final rule (74 FR 66496–66546), EPA issued findings, pursuant to CAA Section 202(a), that greenhouse gases present in the atmosphere may reasonably be anticipated to endanger public health and welfare. In the final rule, EPA determined that the mix of six key greenhouse gases meets the definition of “air pollution” within the meaning of CAA Section 202(a). The six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). In addition, EPA has determined that emissions of four of the six gases (CO2, CH4, N2O, and HFCs) from new motor vehicles and new vehicle engines cause or contribute to air pollution. See EPA Issues Greenhouse Gas “Endangerment” and “Cause or Contribute” Findings.

Hazardous Waste Compliance Materials and Tools

January 2010 additions to the Hazardous Waste Compliance module included:
• Two new regulatory analysis articles were added, along with supporting Federal Register documents.
• Two new case summaries were added, along with the associated court decisions.


HOT TOPICS include:


2010 Directory of U.S. Commercial TSD Facilities—The Hazardous Waste Consultant annually publishes a directory of hazardous waste treatment, storage, and disposal (TSD) facilities in the United States. This 2010 directory lists each known facility and its “vital statistics,” including the categories of wastes accepted, treatment method(s) offered, and permitting status. To develop the directory, we contact previously listed facilities for updated information. In addition, we contact state regulatory personnel to 1) confirm the permitting status of the listed facilities, and 2) identify any other TSD facilities within each state that meet our inclusion criteria. A total of 41 states provided information for the 2010 directory. See 2010 Directory of U.S. Commercial Hazardous Waste Management Facilities.

Wastewater and Water Quality Compliance Materials and Tools


January 2010 additions to the Wastewater and Water Quality Compliance module included:
• One new regulatory analysis article was added, along with supporting Federal Register documents.
• One new court case was added.


HOT TOPICS include:


Draft Water Quality Criteria for Ammonia—On December 30, 2009 (74 FR 69086–69087), EPA announced the availability of draft national recommended water quality criteria for ammonia for the protection of aquatic life. The draft water quality criteria include acute and chronic criteria concentrations for freshwater that are expressed as functions of temperature and pH. The recommended saltwater water quality criteria are not being updated at this time. When finalized, the new national recommended water quality criteria for ammonia will be taken into account when states and authorized tribes revise water quality standards for their jurisdictions. Ultimately, the water quality standards issued by state or tribal agencies will be reflected as limits in discharge permits or other requirements to limit discharges or releases of pollutants. See Draft Water Quality Criteria for Ammonia Issued.

Business and the Environment


The January 2010 issue of the Business and the Environment newsletter included eight stories on sustainable development and three stories on recent climate change developments.


HOT TOPICS include:


U.N. Framework Convention on Climate Change Copenhagen Meeting—The 15th Congress of the Parties to the United Nations (U.N.) Framework Convention on Climate Change (COP15) in Copenhagen resulted in an agreement of sorts, although it is not the robust deal hoped for by many. The Copenhagen Accord was unusual in that it was hammered out directly between the heads of state, rather than by lower level functionaries and negotiators. The accord requires developed countries (Annex I Parties) to list, by February 2010, greenhouse gas reduction goals for 2020, and requires developing countries (Non-Annex I Parties) to list the mitigation measures to which they will commit. See COP15 Ends With “Meaningful,” But Contentious, Agreement.

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

Analysis added to the Environmental Compliance Portfolio in January 2010

Air Quality Compliance Materials and Tools
Analysis of Major Air Quality Compliance Issues

NAAQS

New Primary Ambient Air Quality Standard for Sulfur Dioxide Proposed
On December 8, 2009 (74 FR 64810–64881), EPA proposed to revise the primary national ambient air quality standards (NAAQS) for sulfur oxides by establishing a new one-hour sulfur dioxide (SO2) standard within the range of 50–100 ppb. The NAAQS for sulfur oxides are measured as SO2. The new one-hour SO2 standard would be based on the three-year average of the annual 99th percentile (or, alternatively, the 4th highest) of one-hour daily maximum concentrations. The agency has also proposed to revoke the existing 24-hour and annual primary SO2 NAAQS.


Air Quality Regulatory Analysis Articles

NESHAP/MACT

New Emission Standards Issued for Area Source Paint and Coating Manufacturers
On December 3, 2009 (74 FR 63504–63530), EPA issued national emission standards for the paint and allied products manufacturing source category. The final rule applies to facilities that are area sources of hazardous air pollutants (HAPs), and manufacture paints, inks, adhesives, stains, varnishes, shellacs, putties, sealers, caulks, and other coatings. The new standards are expected to apply to nearly 2,200 facilities in the United States. Compliance with the requirements of the final rule is expected to reduce particulate matter emissions from affected sources by 6,300 tons per year (tpy). The final rule is also expected to reduce volatile HAP emissions from affected facilities by about 169 tpy.

Changes Proposed to Area Source Standards for Gasoline Distribution and Dispensing Facilities
On December 15, 2009 (74 FR 66470–66494), EPA proposed revisions to the national emission standards for area source gasoline distribution facilities and gasoline dispensing facilities. The proposed rule would clarify the emission standards for area source gasoline distribution and gasoline dispensing facilities by adding and revising definitions, clarifying applicability provisions, and modifying certain compliance requirements. The proposed rule would also clarify that, once the throughput at a gasoline distribution or dispensing facility exceeds applicability thresholds, the facility continues to be subject to the requirements triggered by exceeding the threshold, regardless of whether the facility’s throughput subsequently drops below the threshold.

Final Area Source Standards Issued for Chemical Preparations Industry
On December 30, 2009 (74 FR 69194–69217), EPA issued final national emission standards for the chemical preparations source category. The generally available control technology (GACT) standards apply to chemical preparation operations located at facilities that are an area source of HAPs. EPA estimates that 26 existing facilities are regulated under the new GACT standards. Under the final rule, all process vent streams from mixing, blending, milling, and extruding equipment must be routed to a control device that achieves a 95% particulate matter control efficiency (98% for new sources) when the equipment is processing materials containing chromium, manganese, nickel, or lead. Alternatively, owners/operators can elect to meet a control device outlet concentration standard of 0.03 gr/dscf.

Emission Standards Issued for Area Source Animal Feed Manufacturing Facilities
On January 5, 2010 (75 FR 522–551), EPA issued national emission standards for animal feed manufacturing facilities that are area sources. The new GACT standards apply to prepared feed manufacturers (except for dog and cat food manufacturers) who add chromium compounds or manganese compounds to their product. Affected facilities are required to implement management practices to minimize particulate matter emissions, which include chromium compounds and manganese compound emissions. EPA estimates that around 1,800 area source prepared feed manufacturing facilities are regulated under the final rule.


Other Issues

EPA Issues Greenhouse Gas “Endangerment” and “Cause or Contribute” Findings
In a December 15, 2009 final rule (74 FR 66496–66546), EPA issued findings, pursuant to CAA Section 202(a), that greenhouse gases present in the atmosphere may reasonably be anticipated to endanger public health and welfare. In the final rule, EPA determined that the mix of six key greenhouse gases meets the definition of “air pollution” within the meaning of CAA Section 202(a). The six greenhouse gases are: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). In addition, EPA has determined that emissions of four of the six gases (CO2, CH4, N2O, and HFCs) from new motor vehicles and new vehicle engines cause or contribute to air pollution.

PSD/NSR Permitting

EPA Extends Administrative Stay of NSR Provisions Addressing Fugitive Emissions
On September 30, 2009 (74 FR 50115), EPA announced that it had granted a petition for reconsideration of a previous rulemaking that revised how fugitive emissions are considered when deciding whether a proposed physical or operational change qualifies as a “major modification.” The September 30, 2009 final rule also stayed the effectiveness of a number of new source review (NSR) and prevention of significant deterioration (PSD) regulatory provisions addressing fugitive emissions until December 30, 2009. In a December 11, 2009 final rule (74 FR 65692–65696), EPA extended the administrative stay of the fugitive emission regulations at issue for an additional three months, until March 31, 2010.

State Implementation Plans

Revisions to Ambient Lead Monitoring Requirements Proposed
On December 30, 2009 (74 FR 69050–69059), EPA proposed to revise the ambient air quality monitoring requirements for lead. The proposed rule would revise source-oriented monitoring requirements such that ambient air quality monitoring for lead would be required near sources that emit =0.50 tons per year (tpy) of lead, rather than =1.0 tpy, as is currently required. EPA estimates that the proposed rule would require state and local air quality agencies to deploy and operate up to 352 monitors. Under current monitoring requirements, state and local agencies are expected to operate about 212 lead monitors.

Stratospheric Ozone Protection

ODS Essential Use Allowances for 2010 Proposed
On December 11, 2009 (74 FR 65719–65724), EPA proposed to issue essential use allowances for the import and production of Class I ozone-depleting substances (ODS) in 2010. The essential use allowances would permit the production and import of specific quantities of ODS that would otherwise be subject to a regulatory phaseout. The proposed rule would allocate 30.0 metric tons of chlorofluorocarbons (CFCs) for use in metered dose inhalers in 2010. Metered dose inhalers are used in the treatment of asthma and chronic obstructive pulmonary disease.

Revisions Made to Allowance System for Class II Ozone-Depleting Substances
To achieve the eventual phaseout of Class II ODS, EPA has established an allowance system that prohibits companies from producing, importing, or exporting Class II controlled substances in quantities that exceed their allowances held. On December 15, 2009 (74 FR 66412–66448), the agency revised the allowance system for Class II ODS by apportioning baselines and distributing allowances for the 2010–2014 control periods. The final rule will help ensure U.S. compliance with the next major milestone toward the complete phaseout of HCFCs—a 75% reduction from the aggregate U.S. HCFC baseline by January 1, 2010.

Final Rule Bans Sale or Distribution of Appliances Containing HCFC-22 or HCFC 142b
In a December 15, 2009 final rule (74 FR 66450–66467), EPA banned the sale or distribution of air conditioning and refrigeration appliances manufactured on or after January 1, 2010 that are pre-charged with hydrochlorofluorocarbon (HCFC)-22, HCFC 142b, and blends containing these substances. Typical appliances targeted by the ban include window air conditioning units, dehumidifiers, and heat pumps. The ban also prohibits the sale or distribution of components for air conditioning and refrigeration appliances that are pre-charged with HCFC-22, HCFC-142b, and blends of one or both of these substances that are manufactured on or after January 1, 2010. EPA indicates that, in 2006, 9.7 million air conditioning and refrigeration appliances pre-charged with HCFC-22 or HCFC-142b were imported into the United States.


Reviews of Court Decisions and Consent Decrees

EAB Remands Permit for 1,500-MW Power Plant
On September 24, 2009, EPA’s Environmental Appeals Board (EAB) remanded the PSD permit for a proposed 1,500-MW power plant so EPA could reexamine whether integrated gasification combined cycle (IGCC) should be considered in the control technology analysis (In re: Desert Rock Energy Company, LLC, PSD Appeal Nos. 08-03, 08-04, 08-05, and 08-06). The PSD permit was issued by EPA Region 9 to Desert Rock Energy Company, LLC, and authorized Desert Rock to construct a new 1,500-MW coal-fired electric generating facility approximately 25 miles southwest of Farmington, New Mexico. In the decision, the EAB concluded that Region 9 abused its discretion in declining to consider IGCC as a potential control technology in step 1 of its best available control technology (BACT) analysis for the facility.

Court Dismisses Challenge to Removing Georgia From the NOx SIP Call
In a November 24, 2009 decision, the U.S. Court of Appeals for the District of Columbia Circuit dismissed a challenge to EPA’s rulemaking removing Georgia from the list of states required to submit a state implementation plan (SIP) to address transported nitrogen oxides (NOx) (North Carolina v. EPA, No. 08-1225 [D.C. Cir. Nov. 24, 2009]). In the case, North Carolina argued that NOx emissions from Georgia interfere with its ability to meet the eight-hour ozone national ambient air quality standards (NAAQS). In the decision, the court found that reinstating the NOx SIP call for Georgia would not affect the level of emissions in Georgia.

Hazardous Waste Compliance Materials and Tools
Analysis of Major Hazardous Waste Issues

Directories

2010 Directory of U.S. Commercial Hazardous Waste Management Facilities
The Hazardous Waste Consultant annually publishes a directory of hazardous waste treatment, storage, and disposal (TSD) facilities in the United States. This 2010 directory lists each known facility and its “vital statistics,” including the categories of wastes accepted, treatment method(s) offered, and permitting status. To develop the directory, we contact previously listed facilities for updated information. In addition, we contact state regulatory personnel to 1) confirm the permitting status of the listed facilities, and 2) identify any other TSD facilities within each state that meet our inclusion criteria. A total of 41 states provided information for the 2010 directory.

Hazardous Waste Regulatory Analysis Articles

CERCLA

Bona Fide Prospective Purchaser Liability Protection for Tenants Explained
In 2002, CERCLA was amended by the Small Business Liability Relief and Brownfields Revitalization Act (Brownfields Amendments). In part, the Brownfields Amendments provide liability protection for parties who qualify as bona fide prospective purchasers (BFPPs). On January 14, 2009, EPA issued a document entitled “Enforcement Discretion Guidance Regarding the Applicability of the Bona Fide Prospective Purchaser Definition in CERCLA Section 101(40) to Tenants” (Tenants Policy). The document provides guidance to EPA regional offices in exercising enforcement discretion under the BFPP provision in regards to parties that lease a property. On November 23, 2009, the agency announced the availability of a document that provides answers to frequently asked questions about the Tenants Policy. This article provides a summary of the policy, as well as answers to frequently asked questions.


Reviews of Court Decisions and Consent Decrees

Executive Pleads Guilty to Fraud at a New Jersey Superfund Site
On July 6, 2009, Robert P. Griffiths pleaded guilty in the U.S. District Court for the District of New Jersey to conspiring to pay kickbacks and commit fraud at the Federal Creosote Superfund site in Manville, New Jersey. Griffiths, a former executive of a Canadian-based company that treats and disposes contaminated soil, also pleaded guilty to participating in a money laundering conspiracy and impeding a proceeding before the U.S. Securities and Exchange Commission (U.S. v. Griffiths, Criminal Number 09-506 [D.N.J. July 6, 2009]). Another six individuals and three companies have pleaded guilty to similar charges. The Antitrust Division’s New York Field Office, EPA’s Office of Inspector General, and the Internal Revenue Service Criminal Investigation are conducting the ongoing investigation.

Court Rejects Challenge to Army’s Plan to Incinerate Chemical Weapons
In an August 19, 2009 decision, the U.S. District Court for the District of Columbia ruled that the U.S. Army had acted reasonably in not performing supplemental environmental impact statements at four chemical weapon stockpile sites (Chemical Weapons Working Group v. U.S. Dept. of Defense, No. 03-00645 [D.D.C Aug. 19, 2009]). The Chemical Weapons Working Group (CWWG) had challenged the Army’s plan to use incineration to destroy chemical weapons at the four sites, claiming that the Army had violated the National Environmental Policy Act by not performing analyses to evaluate alternative destruction technologies. However, the district court rejected the CWWG’s claim, based on the Army’s “reasoned explanation” and previous court rulings.

Wastewater and Water Quality Compliance Materials and Tools
Analysis of Major Wastewater and Water Quality Compliance Issues

Water Quality

Draft Water Quality Criteria for Ammonia Issued
On December 30, 2009 (74 FR 69086–69087), EPA announced the availability of draft national recommended water quality criteria for ammonia for the protection of aquatic life. The draft water quality criteria include acute and chronic criteria concentrations for freshwater that are expressed as functions of temperature and pH. The recommended saltwater water quality criteria are not being updated at this time. When finalized, the new national recommended water quality criteria for ammonia will be taken into account when states and authorized tribes revise water quality standards for their jurisdictions. Ultimately, the water quality standards issued by state or tribal agencies will be reflected as limits in discharge permits or other requirements to limit discharges or releases of pollutants.

Court Decisions

The following court decision was added in January 2010:

Service Oil, Inc. v. EPA, No. 08-2819 [8th Cir. Dec. 28, 2009]—On December 28, 2009, the U.S. Court of Appeals for the Eight Circuit remanded EPA’s penalty determination for failure to obtain a storm water discharge permit. The court concluded that the EPA exceeded its authority when it based the amount of penalty not on unlawful discharges, but on failure to comply with the agency’s permit application regulations.

Business and the Environment

The January 2010 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:

Focus Report
• COP15 Ends With “Meaningful,” But Contentious, Agreement

Perspectives
• More Greenhouse Gas News

Corporate Reporting
• Human Rights Reporting
• USPS Publishes First Sustainability Report

Corporate Initiatives
• NGOs Beat Big Businesses in Sustainability
• Pilot Program for Green Rating System
• Study Predicts Market Dominance for Electric Cars

Product Stewardship and Takeback
• US EPA Links Recycling to Greenhouse Gas Emissions
• Newly Established ISO Subcommittee Tackles International Packaging

ISO Update
• ISO E14064-1, Part 1

Climate Change Update
• Climate Science Roundup, Part 1