Environmental Compliance Update – February 2011

Additions to the Environmental Compliance Portfolio

During January 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, and
  • Business and the Environment (sustainable development and climate change).

Air Quality Compliance Materials and Tools

January 2011 additions to the Air Quality Compliance module included:

  • Eight new regulatory analysis articles were added, along with supporting Federal Register documents.
  • The following software tools were updated through January 31, 2011:

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

HOT TOPICS include:

  • Subsurface CO2 Injection Subject to New Reporting RequirementsOn December 1, 2010 (75 FR 75060–75089), EPA issued regulations requiring greenhouse gas monitoring and reporting for facilities that conduct geologic sequestration of carbon dioxide (CO2), as well as all other facilities that inject CO2. The final rule requires facilities that inject CO2 for geologic sequestration to develop and implement an EPA-approved monitoring, reporting, and verification plan. Other facilities that inject CO2 (e.g., those that inject CO2 for enhanced oil and gas recovery) are required to report the mass of CO2 received, as well as the source of the CO2. EPA estimates that one facility conducting geologic sequestration and 92 facilities conducting CO2 injection will be affected by the final rule. See CO2 Geologic Sequestration and Injection Subject to Greenhouse Gas Reporting Requirements.
  • More Changes Made to Greenhouse Gas Reporting RequirementsOn December 17, 2010 (75 FR 79092–79171), EPA revised the greenhouse gas reporting rule in 40 CFR Part 98 to clarify certain provisions, correct technical and editorial errors, and address questions and issues that have arisen since the rule was promulgated. The agency indicates that the revisions primarily provide additional clarifications or flexibility regarding the existing regulatory requirements, and generally do not affect the type of information that must be collected or how emissions are calculated. While the revisions to Part 98 are extensive, entities submitting greenhouse gas reports in 2011 (covering calendar year 2010) are required to calculate and summit emission data according to the revised requirements. See Revisions to Greenhouse Gas Reporting Rule Apply to 2010 Reporting Year.

Hazardous Waste Compliance Materials and Tools

January 2011 additions to the Hazardous Waste Compliance module included:

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

HOT TOPICS include:

  • 2011 Directory of TSD Facilities—The 2011 Directory of U.S. Commercial Hazardous Waste Management Facilities lists hazardous waste treatment, storage, and disposal (TSD) facilities by state, and includes information on the categories of wastes accepted, treatment and disposal method(s) offered, and the permitting status of each facility. The list of TSD facilities was developed by requesting updated information from the facilities that appeared in the 2010 directory. In addition, state regulatory personnel were contacted to confirm facility information and identify any additional facilities that should be included. Due to space constraints, we restrict our definition of a TSD facility to include only those facilities that offer onsite treatment and/or disposal. The article also discusses facility changes since the directory was last published in 2010. See 2011 Directory of U.S. Commercial Hazardous Waste Management Facilities.

Business and the Environment

The January 2011 issue of the Business and the Environment newsletter included eight stories on sustainable development and four stories on recent climate change developments.

HOT TOPICS include:

  • Modest Progress on a Climate Change Agreement—The 16th annual Conference of the Parties (COP 16) to the United Nations (UN) Framework Convention on Climate Change (UNFCCC) took place between November 29, 2010 and December 10, 2010 in Cancun, Mexico. The consensus seems to be that the conference achieved modest progress regarding a successor agreement to the Kyoto Protocol. Not “no progress,” but nothing earth-shattering either. Cancun also seemed to set a more productive tone, avoiding the rancorous finger-pointing that characterized last year’s Copenhagen summit. See COP 16: Modest Progress on a Climate Change Agreement.

 

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 January 2011

Air Quality Compliance Materials and Tools

Air Quality Regulatory Analysis Articles

NESHAP/MACT

Comment Sought on Operating Emergency Engines in Demand Response Programs
In a December 7, 2010 proposed rule (75 FR 75937–75941), EPA requested comment on whether emergency engines should be allowed to operate as part of an emergency demand response program and, if so, what restrictions should be established. In the March 3, 2010 (75 FR 9648) emission standards for existing stationary compression ignition reciprocating internal combustion engines (RICE), the agency included provisions allowing emergency engines to be operated up to 15 hours per year as part of an emergency demand response program, if the regional transmission organization or equivalent balancing authority and transmission operator has determined there are emergency conditions that could lead to a potential electrical blackout. EPA subsequently received two petitions for reconsideration of the agency’s decision to allow emergency engines to be operated as part of an emergency demand response program.

EPA Reconsiders Title V Permitting Requirement for Certain Chemical Manufacturing Area Sources
On December 14, 2010 (75 FR 77760–77762), EPA stayed the provision that requires certain chemical manufacturing area sources to obtain a CAA Title V operating permit. Area sources are facilities with the potential to emit <10 tons per year (tpy) of any single hazardous air pollutant (HAP), and <25 tpy of any combination of HAPs. Under the emission standards for chemical manufacturing area sources in 40 CFR Part 63, Subpart VVVVVV, any major source that installed a control device on a chemical manufacturing process unit after November 15, 1990 and, as a result, became an area source, is required to obtain a Title V operating permit. All other area sources regulated under the emission standards are exempt from Title V permitting.

Other Issues

Greenhouse Gas Reporting Requirements Issued for Additional Sources of Fluorinated Gases
On December 1, 2010 (75 FR 74774–74861), EPA issued greenhouse gas monitoring and reporting requirements for five categories of sources or suppliers of fluorinated greenhouse gases. The source and supplier categories covered under the December 1, 2010 final rule are: 1) electronics manufacturing, 2) fluorinated gas production, 3) electrical transmission and distribution equipment use, 4) electrical equipment manufacture or refurbishment, and 5) importers and exporters of pre-charged equipment and closed-cell foams containing fluorinated greenhouse gases.

CO2 Geologic Sequestration and Injection Subject to Greenhouse Gas Reporting Requirements
On December 1, 2010 (75 FR 75060–75089), EPA issued regulations requiring greenhouse gas monitoring and reporting for facilities that conduct geologic sequestration of carbon dioxide (CO2), as well as all other facilities that inject CO2. The final rule requires facilities that inject CO2 for geologic sequestration to develop and implement an EPA-approved monitoring, reporting, and verification plan. Other facilities that inject CO2 (e.g., those that inject CO2 for enhanced oil and gas recovery) are required to report the mass of CO2 received, as well as the source of the CO2. EPA estimates that one facility conducting geologic sequestration and 92 facilities conducting CO2 injection will be affected by the final rule.

Renewable Fuel Standards for 2011 Issued
Under CAA Section 211(o), which was added by the Energy Independence and Security Act of 2007, EPA is required to annually determine a renewable fuel standard, which is applicable to refiners, importers, and certain blenders of gasoline. On December 9, 2010 (75 FR 76790–76830), EPA issued volume standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels applicable to all gasoline and diesel produced or imported in 2011. In addition, the final rule revises the agency’s renewable fuel standard regulations to create a temporary and limited means for certain renewable fuel producers to generate delayed renewable identification numbers. The final rule also establishes a new process for parties to petition EPA to authorize use of an aggregate approach to compliance with the renewable biomass provisions for foreign feedstocks.

Revisions to Greenhouse Gas Reporting Rule Apply to 2010 Reporting Year
On December 17, 2010 (75 FR 79092–79171), EPA revised the greenhouse gas reporting rule in 40 CFR Part 98 to clarify certain provisions, correct technical and editorial errors, and address questions and issues that have arisen since the rule was promulgated. The agency indicates that the revisions primarily provide additional clarifications or flexibility regarding the existing regulatory requirements, and generally do not affect the type of information that must be collected or how emissions are calculated. While the revisions to Part 98 are extensive, entities submitting greenhouse gas reports in 2011 (covering calendar year 2010) are required to calculate and submit emission data according to the revised requirements.

PSD/NSR Permitting

SIP Call Addressing PSD Permitting for Greenhouse Gas Emission Sources Issued
On December 13, 2010 (75 FR 77698–77719), EPA issued a finding that the EPA-approved state implementation plans (SIPs) of 13 states are substantially inadequate because the state plans do not apply prevention of significant deterioration (PSD) permitting requirements to sources of greenhouse gases. EPA’s issuance of the findings of substantial inadequacy and SIP call allow it to proceed with issuing federal implementation plans (FIPs) so that EPA will be able to issue PSD permits for greenhouse gas emission sources in the affected states. EPA proposed a FIP for permitting greenhouse gas emission sources on September 2, 2010.

Stratospheric Ozone Protection

Proposed Rule Would Tighten Refrigerant Leak Repair Requirements
On December 15, 2010 (75 FR 78558–78585), EPA proposed changes to the refrigerant leak repair regulations that are intended to further reduce releases of ozone-depleting substances (ODS) from refrigeration and air conditioning equipment. The proposed rule would lower the leak rate thresholds defining when equipment must be repaired; require written verification of all repair attempts for comfort cooling and commercial appliances, not just industrial process refrigeration equipment (as is currently required); and require service technicians to maintain records on the fate of refrigerant that is recovered from, but not returned to, appliances during service. In addition, the proposed rule would exempt the addition of refrigerant due to “seasonal variances” from the existing leak repair requirements, allow all appliance owners/operators additional time to complete repairs due to unavailability of components, and decrease the amount of time allowed for the completion of retrofit/retirement plans.

Hazardous Waste Compliance Materials and Tools

Analysis of Major Hazardous Waste Compliance Issues

Directories

2011 Directory of U.S. Commercial Hazardous Waste Management Facilities
The 2011 Directory of U.S. Commercial Hazardous Waste Management Facilities lists hazardous waste treatment, storage, and disposal (TSD) facilities by state, and includes information on the categories of wastes accepted, treatment and disposal method(s) offered, and the permitting status of each facility. The list of TSD facilities was developed by requesting updated information from the facilities that appeared in the 2010 directory. In addition, state regulatory personnel were contacted to confirm facility information and identify any additional facilities that should be included. Due to space constraints, we restrict our definition of a TSD facility to include only those facilities that offer onsite treatment and/or disposal. The article also discusses facility changes since the directory was last published in 2010.

Reviews of Court Decisions and Consent Decrees

Appeals Court Rules Plaintiffs in Radiation Exposure Case Did Not Meet Causation Requirements
On September 8, 2010, the U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s ruling that the plaintiffs had failed to show that their exposure to radiation and other substances from a mining facility had led to their cancers (Wilcox v. Homestake Mining Co., No. 08-2282 [10th Cir. Sept. 8, 2010]). The case involved alleged radiation exposure at a uranium milling facility in New Mexico. The toxic tort plaintiffs had to show that their injury, in this case, cancer, would not have occurred “but-for” the defendant’s act. The appeals court concluded that the plaintiffs had failed to show by a reasonable degree of medical certainty that their illnesses would not have occurred “but-for” the release of radioactive and other substances from the Homestake operations. Further, the court found that the causation standard for tort actions in New Mexico also applies to toxic tort suits that involve multiple, possible contributing causes.

EPA’s Suit to Recover Superfund Site Oversight Costs Rejected as Untimely
On September 21, 2010, the U.S. District Court for the District of New Jersey ruled that EPA had untimely filed a case involving the recovery of response costs at a Superfund site under CERCLA Sections 107(a) and 113 (United States v. Rohm and Haas Co., No. 09-5528 [D.N.J. Sept. 21, 2010]). EPA argued that its cause of action did not accrue until the U.S. Court of Appeals for the Third Circuit ruled in another case that oversight costs were recoverable under CERCLA. However, the district court disagreed, and refused to apply a non-statutory accrual date given the clarity of the regulations. In addition, the court found that EPA did not demonstrate due diligence in its filing of the claim. Therefore, the district court found that EPA’s claim was untimely.

News

Business and the Environment

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

Focus Report

  • COP 16: Modest Progress on a Climate Change Agreement

Perspectives

  • Gibbs & Soell — Where Public Relations Meets Sustainability

Corporate Reporting

  • CSR Reporting: By the Numbers
  • Seven Best Practices for Writing Sustainability Reports
  • Four Tips for Writing a Winning CSR Report

Corporate Initiatives

  • California Board Adopts Cap-and-Trade Regulation
  • The US and World Green Building Councils Urge Action

Product Stewardship and Takeback

  • Prescription Drug Disposal Program Extended
  • Ship Recycling Yards Seek Certifications

ISO Update

  • ISO 26000 — An Emerging Guidance on Social Responsibility

Climate Change Update

  • Extreme Droughts By 2030
  • Climate Pledges Will Yield Up to 4°C Warming By 2100