Environmental Compliance Update – January 2010

Additions to the Environmental Compliance Portfolio


During December 2009, 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

December 2009 additions to the Air Quality Compliance module included:

  • Five new regulatory analysis articles were added, along with supporting Federal Register documents.
  • One new case summary was added, along with the associated court decision.
  • Three guidance documents were added to Environmental Compliance > Air Quality Compliance > EPA Guidance on New Source Review >. These documents provide important EPA policy on new source review (NSR) and prevention of significant deterioration (PSD) permitting issues. There are more than 600 guidance documents available at Environmental Compliance > Air Quality Compliance > EPA Guidance on New Source Review >.
    • 39 EPA memoranda were added to Environmental Compliance > Air Quality Compliance > NSPS, NESHAP, and MACT Questions and Answers >. These documents provide EPA interpretations of regulatory requirements contained in new source performance standards (NSPS), national emission standards for hazardous air pollutants (NESHAP), and maximum achievable control technology (MACT) standards. There are more than 1,100 interpretive memoranda available at Environmental Compliance > Air Quality Compliance > NSPS, NESHAP, and MACT Questions and Answers >.
    HOT TOPICS include:
    • Greenhouse Gas Emissions Reporting—On October 30, 2009 (74 FR 56260–56519), EPA issued new regulations that require greenhouse gas emission reporting. In general, the final rule requires suppliers of fossil fuels and industrial gases, manufacturers of mobile source engines, and individual facilities that emit >25,000 metric tons of carbon dioxide equivalent (CO2e) per year to submit annual emission reports. Under the final rule, the first emission report is due March 31, 2011, and will cover emissions for calendar year 2010. Therefore, recordkeeping to document emissions for 2010 begins January 1, 2010. For mobile source engine manufacturers, the reporting requirements begin with the 2011 model year. See Greenhouse Gas Reporting Rule Issued.

Hazardous Waste Compliance Materials and Tools

December 2009 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.
  • The three indexes in Environmental Compliance > Indexes and Tables > Hazardous Waste Indexes and Finding Aids > were updated to reflect articles, cases, and guidance documents added from May 2008 through November 2009. In total, index additions included:
    • 146 entries added to the keyword index,
      —12 entries added to the citation index, and
      —11 entries added to the industry index.


HOT TOPICS include:

  • Changes to Comparable Fuel Exclusion Proposed—Under the so-called RCRA comparable fuel exclusion, secondary materials (i.e., materials that would otherwise be hazardous wastes) are not solid wastes if they have fuel value and contain hazardous constituents at levels that are comparable to those contained in fossil fuels. EPA finalized a rule that expanded this exclusion on December 19, 2008 (73 FR 77954). The December 2008 final rule established solid waste exclusion conditions for a new category of fuels produced from hazardous secondary materials, which is called emission-comparable fuel (ECF). ECF includes fuels that are produced from hazardous waste, but which, when burned in industrial boilers under certain conditions, generate emissions that are comparable to those from burning fuel oil in those boilers. On December 8, 2009 (74 FR 64643–64658), EPA proposed to withdraw the conditional RCRA exclusion for ECF. According to the agency, “. . . ECF appears to be better regarded as being a discarded material and regulated as a hazardous waste [74 FR 64643].” See EPA Proposes to Withdraw the Emission-Comparable Fuel Exclusion.

Wastewater and Water Quality Compliance Materials and Tools

December 2009 additions to the Wastewater and Water Quality Compliance module included:

  • Three new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Three new court cases were added.


HOT TOPICS include:

  • More Than 81,000 Construction and Development Firms Covered Under New Rules—On December 1, 2009 (74 FR 62996–63058), EPA issued final effluent limitations guidelines and new source performance standards (NSPS) for the construction and development point source category. The final rule establishes national technology-based effluent limitations guidelines and NSPS applicable to all dischargers currently required to obtain National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges from construction and development activities. Construction site owners and operators are required to implement a range of erosion and sediment control best management practices (BMPs) to reduce pollutants in storm water discharges. In addition, certain sites are required to meet a numeric effluent limit for turbidity. EPA estimates that more than 81,000 construction and development firms are covered under the effluent limitations guidelines and NSPS. See Final Effluent Limitations Guidelines and NSPS Issued for Construction and Development Industry.

Business and the Environment

The December 2009 issue of the Business and the Environment newsletter included nine stories on sustainable development and four stories on recent climate change developments.

HOT TOPICS include:
• Responsible Care—In 1988, the then Chemical Manufacturers’ Association (CMA) ushered in its version of the Responsible Care principles for use by member chemical companies. Since then, CMA has become the American Chemistry Council (ACC), and Responsible Care has added another dimension with the issuance of RC 14001, a sister standard to ISO 14001, complete with certification provided by accredited certification bodies. At the ACC’s 2009 meeting, industry leaders said it is a priority to extend Responsible Care globally, especially in emerging markets, such as China, Russia, and the Middle East. See Responsible Care Redux.

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


Analysis added to the Environmental Compliance Portfolio in December 2009

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

Other

Greenhouse Gas Reporting Rule Issued
On October 30, 2009 (74 FR 56260–56519), EPA issued new regulations that require greenhouse gas emission reporting. In general, the final rule requires suppliers of fossil fuels and industrial gases, manufacturers of mobile source engines, and individual facilities that emit >25,000 metric tons of carbon dioxide equivalent (CO2e) per year to submit annual emission reports. Under the final rule, the first emission report is due March 31, 2011, and will cover emissions for calendar year 2010. Therefore, recordkeeping to document emissions for 2010 begins January 1, 2010. For mobile source engine manufacturers, the reporting requirements begin with the 2011 model year.
Air Quality Regulatory Analysis Articles

NAAQS

Area Designations for the 2006 PM-2.5 NAAQS Re-Issued
In a November 13, 2009 final rule (74 FR 58688–58781), EPA designated areas throughout the United States as either “nonattainment” or “unclassifiable/attainment” for the 2006 24-hour national ambient air quality standards (NAAQS) for PM-2.5 (particulate matter with an aerodynamic diameter =2.5 microns). In total, 31 areas (incorporating all or portions of 120 counties) in 18 states have been designated nonattainment for the 2006 24-hour PM-2.5 NAAQS. Attainment of the PM-2.5 NAAQS is required by 2014, unless a state requests an extension, in which case the required attainment date can be extended until December 2019.

NESHAP/MACT

GACT Standards Issued for Asphalt Processing and Asphalt Roofing Manufacturing Area Sources
On December 2, 2009 (74 FR 63236–63266), EPA issued new national emission standards for area source asphalt processing operations and asphalt roofing product manufacturing. Sources regulated under the final rule are required to comply with emission limits for particulate matter or polycyclic aromatic hydrocarbons (PAHs) [e.g., benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, chrysene, dibenz(a,h)anthracene, indeno(1,2,3-c,d)pyrene]. The particulate matter emission limits are intended as an alternative way to reduce emissions of PAHs. Additionally, affected sources are required to comply with monitoring, recordkeeping, and reporting requirements. EPA estimates that the generally available control technology (GACT) standards apply to 75 existing facilities.

Stratospheric Ozone Protection

Methyl Bromide Critical Use Exemptions for 2010 Proposed
On November 23, 2009 (74 FR 61078–61096), EPA proposed limits on the amount of methyl bromide that can be produced or imported in 2010, and amounts of the chemical that can be sold from existing stocks of methyl bromide in 2010. Methyl bromide is a pesticide that has been identified under the Montreal Protocol on Substances that Deplete the Ozone Layer and the CAA as an ozone-depleting substance (ODS). The routine production and consumption of methyl bromide was prohibited beginning January 1, 2005. For 2010, the November 23, 2009 proposed rule would allow up to 2,275,715 kg of methyl bromide to be produced or imported. In addition, up to 690,464 kg of the chemical could be sold from existing stocks.

Other Issues

EPA Interpretations of NSPS, NESHAP, and MACT Requirements
EPA frequently receives questions from industry, state agencies, and other affected parties concerning how 40 CFR Part 60 new source performance standards (NSPS), Part 61 national emission standards for hazardous air pollutants (NESHAP), and Part 63 maximum achievable control technology (MACT) standards apply to specific situations. The agency memoranda responding to these questions are generally termed applicability determinations, alternative monitoring decisions, or regulatory interpretations. The memoranda issued by the agency can provide valuable insight into how EPA interprets and applies these regulations. The summaries in this article are presented in a question-and-answer format, and have primarily been prepared from EPA’s abstracts for the memos. Each summary includes a hyperlink to the applicable memorandum in Environmental Compliance > Air Quality Compliance > NSPS, NESHAP, and MACT Questions and Answers >.

Reviews of Court Decisions and Consent Decrees

Appeals Court Rejects Michigan’s Challenge to PSD Class I Designation of Tribal Lands
In a September 9, 2009 decision, the U.S Court of Appeals for the Seventh Circuit dismissed Michigan’s challenge to redesignating tribal lands in Wisconsin as Class I areas under the prevention of significant deterioration (PSD) program (Michigan v. EPA, No. 08-2582 [7th Cir. Sept. 9, 2009]). Although Michigan claimed that EPA had needlessly complicated the state’s air quality control programs, the federal appeals court dismissed the case, finding that the state was objecting to issues that are essentially the normal consequences of redesignating an area from Class I to Class II.

Hazardous Waste Compliance Materials and Tools
Hazardous Waste Regulatory Analysis Articles

Exclusions/Exemptions

EPA Proposes to Withdraw the Emission-Comparable Fuel Exclusion
Under the so-called RCRA comparable fuel exclusion, secondary materials (i.e., materials that would otherwise be hazardous wastes) are not solid wastes if they have fuel value and contain hazardous constituents at levels that are comparable to those contained in fossil fuels. EPA finalized a rule that expanded this exclusion on December 19, 2008 (73 FR 77954). The December 2008 final rule established solid waste exclusion conditions for a new category of fuels produced from hazardous secondary materials, which is called emission-comparable fuel (ECF). ECF includes fuels that are produced from hazardous waste, but which, when burned in industrial boilers under certain conditions, generate emissions that are comparable to those from burning fuel oil in those boilers. On December 8, 2009 (74 FR 64643–64658), EPA proposed to withdraw the conditional RCRA exclusion for ECF. According to the agency, “. . . ECF appears to be better regarded as being a discarded material and regulated as a hazardous waste [74 FR 64643].”

Reporting/Recordkeeping

Cross-Media Electronic Reporting Rule Revised to Exempt Financial Assistance Documents
EPA finalized the cross-media electronic reporting rule on October 13, 2005 (70 FR 59848). The rule specifies the requirements for the electronic submittal of reports and documents required under the agency’s environmental programs. Recently, the agency became aware that the rule is mistakenly being applied to documents and other information that are submitted pursuant to its financial assistance grant requirements. On November 17, 2009 (74 FR 59104–59106), EPA issued a final rule that clarifies the applicability of the cross-media electronic reporting rule. The rule exempts all documents and information submitted electronically by applicants for, and recipients of, EPA grants, cooperative agreements, and other forms of financial assistance.


Reviews of Court Decisions and Consent Decrees

Union Pacific Has Statutory Right to Intervene in CERCLA Consent Decree
In a recent decision, the U.S. Court of Appeals for the Tenth Circuit reversed a district court decision denying the Union Pacific Railroad Company (Union Pacific) the right to intervention in a case involving a CERCLA contribution interest (U.S. v. Albert Investment Company, Inc., No. 08-6267 [10th Cir. Nov. 10, 2009]). The appeals court concluded that a CERCLA contribution interest of a non-settling potentially responsible party (PRP) was a sufficient legal interest to justify intervention as of right in a consent decree with other settling defendants. Accordingly, the appeals court reversed and remanded the case to the U.S. District Court for the Western District of Oklahoma.


Appeals Court Upholds Renewal of Hazardous Waste Incinerator Permit

In an August 25, 2009 decision, a state appeals court affirmed the decision made by the Ohio Environmental Review Appeals Commission (ERAC) to renew the operating permit for a hazardous waste incinerator (Spencer v. Korleski, No. 08AP-1060 [Ohio App. 10th, Aug. 25, 2009]). The permit renewal had been challenged on several issues, including that the facility had not demonstrated the statutorily required “history of compliance.” However, the Court of Appeals of the Ohio Tenth Appellate District found that ERAC’s order was supported by evidence, and was in accordance with law. Accordingly, the appeals court affirmed ERAC’s granting of the permit renewal to the hazardous waste incinerator.

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

Wastewater

Spill Prevention, Control, and Countermeasures Regulations Revised
On November 13, 2009 (74 FR 58784–58832), EPA revised the spill prevention, control, and countermeasures (SPCC) regulations to remove several provisions that were added in a December 2008 rulemaking. Specifically, the final rule removes: 1) the exclusion of farms and oil production facilities from the loading/unloading rack requirements; 2) the exemption for produced water containers at oil production facilities; and 3) the alternative qualified facility eligibility criteria for an oil production facility. The final rule also makes a number of technical and editorial corrections to the December 2008 rule changes.

Final Effluent Limitations Guidelines and NSPS Issued for Construction and Development Industry
On December 1, 2009 (74 FR 62996–63058), EPA issued final effluent limitations guidelines and new source performance standards (NSPS) for the construction and development point source category. The final rule establishes national technology-based effluent limitations guidelines and NSPS applicable to all dischargers currently required to obtain National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges from construction and development activities. Construction site owners and operators are required to implement a range of erosion and sediment control best management practices (BMPs) to reduce pollutants in storm water discharges. In addition, certain sites are required to meet a numeric effluent limit for turbidity. EPA estimates that more than 81,000 construction and development firms are covered under the effluent limitations guidelines and NSPS.

Water Quality

EPA Approves 25 Alternative Methods for Drinking Water Sampling and Analysis
In a November 10, 2009 final rule (74 FR 57908–57918), EPA announced its approval of 25 alternative testing methods for analyzing drinking water samples. Public water systems and others who are required to sample and monitor drinking water may use the newly approved test methods as alternatives to those specified in existing regulations. The newly approved sampling and analysis procedures include methods developed by voluntary consensus standard bodies, EPA, and vendors.

Court Decisions

The following court decisions were added in December 2009:

• AES Sparrows Point LNG v. Wilson, No. 09-1539 [4th Cir. Dec. 22, 2009]—Federal appeals court upholds denial of CWA Section 401(a)(1) water quality certification for liquefied natural gas marine import terminal and pipeline project;
• Ohio Valley Environmental Coalition v. U.S. Army Corps of Engineers, No. 3:08-0979 [S.D. W.Va. Nov. 24, 2009]—District court finds that the Corps of Engineers failed to provide adequate public notice and comments for mines’ Section 404 permits; and
Benjamin v. Douglas Ridge Rifle Club, No. 07-1144-HA [D. Or. Dec. 1, 2009]—Federal district court denies a rifle club’s motion for summary judgment, finding that lead shot may be a RCRA hazardous waste, and wetlands on the club’s property are jurisdictional waters under the Clean Water Act.

Business and the Environment

The December 2009 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:

Focus Report
• Responsible Care Redux

Perspectives
• Expired Medication Takeback Programs Expand (Conclusion)

Corporate Reporting
• ASB Criticizes Clutter
• GRI Asks “Why Report?”

Corporate Initiatives
• World Bank Green Bonds
• Trader Joe’s Flunks Seafood Sustainability Scorecard
• Sunshine From Sahara to Power Europe?

Product Stewardship and Takeback
• New York City Law Evokes a Lawsuit
• Women Lead Recycling Charge

ISO Update
• ISO Greenhouse Gas Standards Overview

Climate Change Update
• Cloud Feedback Appears to Amplify Global Warming
• Stand on Climate Change Not an I-Tune Favorite
• Permafrost Melt Threatens Rapid Climate Change