Environmental Compliance Update – January 2011

Additions to the Environmental Compliance Portfolio

During December 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

December 2010 additions to the Air Quality Compliance module included:

  • Five new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Three new case summaries were added, along with associated court decisions.
  • The following software tools were updated through December 31, 2010:

—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.

  • Volume 21, 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:

  • Petroleum and Natural Gas Producers Subject to New Reporting RequirementsOn November 30, 2010 (75 FR 74458–74515), EPA issued greenhouse gas monitoring and reporting requirements for petroleum and natural gas systems. The new requirements apply to the following segments of the petroleum and natural gas systems source category: 1) offshore petroleum and natural gas production, 2) onshore petroleum and natural gas production, 3) onshore natural gas processing, 4) onshore natural gas transmission compression, 5) underground natural gas storage, 6) liquefied natural gas (LNG) storage, 7) LNG import and export facilities, and 8) natural gas distribution. Under the November 30, 2010 final rule, affected entities are required to annually report emissions of greenhouse gases. The agency estimates that the final rule will require 2,786 entities to submit reports. The first annual report for entities affected by the final rule is due March 31, 2012, and covers emissions for calendar year 2011. Monitoring and recordkeeping requirements start January 1, 2011. See Greenhouse Gas Reporting Requirements Issued for Petroleum and Natural Gas Systems.
  • Guidance Issued on Permitting Greenhouse Gas Emission SourcesOn November 17, 2010 (75 FR 70254–70256), EPA announced the availability of new guidance on prevention of significant deterioration (PSD) and CAA Title V permitting of greenhouse gas emission sources. The November 2010 guidance document, PSD and Title V Permitting Guidance For Greenhouse Gases, is intended to help permit writers and permit applicants address PSD and Title V requirements for greenhouse gases that take effect beginning January 2, 2011. In the guidance document, EPA describes the requirements of the PSD and Title V permitting regulations, and how these requirements apply to greenhouse gases. The agency has also issued guidance on available and emerging technologies that might be considered in best available control technology (BACT) analyses for greenhouse gases. The agency’s guidance documents on available and emerging technologies address the following industries: 1) the portland cement industry; 2) coal-fired electric generating units; 3) industrial, commercial, and institutional boilers; 4) the iron and steel industry; 5) the nitric acid production industry; 6) the pulp and paper manufacturing industry; and 7) the petroleum refining industry. See Guidance Issued on PSD and Title V Permitting of Greenhouse Gas Emission Sources.

Hazardous Waste Compliance Materials and Tools

December 2010 additions to the Hazardous Waste Compliance module included:

  • Four new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Two new case summaries were added, along with the associated court decisions.
  • Volume 28, Issue 6 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:

  • Saccharin Deleted From Hazardous Waste Lists—On December 17, 2010 (75 FR 78918–78926), EPA deleted saccharin and its salts from the RCRA list of hazardous wastes and the CERCLA list of hazardous substances. The affected wastes were identified as hazardous waste number U202. In response to a petition from the Calorie Control Council requesting removal of saccharin and its salts, EPA reviewed evaluations by key public health agencies, and assessed waste generation and management information. Based on its review and assessment, the agency has concluded that saccharin and its salts do not meet the criteria for being listed as hazardous constituents, hazardous wastes, or hazardous substances. See Saccharin and Its Salts Deleted From RCRA and CERCLA Hazardous Waste Lists.

Wastewater and Water Quality Compliance Materials and Tools

December 2010 additions to the Wastewater and Water Quality Compliance module included:

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

HOT TOPICS include:

  • EPA Issues Water Quality Standards for Florida—On December 6, 2010 (75 FR 75762–75807), EPA issued numeric water quality criteria for Florida’s lakes, flowing waters, and springs. Entities discharging nitrogen or phosphorus to lakes and flowing waters of Florida could be indirectly affected by the final criteria because water quality standards are used in determining limits included in National Pollutant Discharge Elimination System (NPDES) permits. Excess loadings of nitrogen and phosphorus, commonly referred to as nutrient pollution, are one of the most prevalent causes of water quality impairment in the United States. High nitrogen and phosphorus loadings can result in harmful algal blooms, reduced spawning grounds and nursery habitats, fish kills, and oxygen-starved hypoxic or “dead” zones. In Florida, nutrient pollution has contributed to severe water quality degradation. See Numeric Water Quality Standards Issued for Lakes and Flowing Waters in Florida.

Business and the Environment

The December 2010 issue of the Business and the Environment newsletter included 12 stories on sustainable development and three stories on recent climate change developments.

HOT TOPICS include:

  • Municipality Profiting From Wind Energy—The small mountain hamlet of Tocco da Causaria (population about 2,700) near Italy’s Adriatic coast in the rugged Abruzzo Region has accomplished a feat that would make many larger cities envious: wind turbines perched atop the jagged hilltops generate more power than its residents use, providing a windfall of over 170,000 Euros (US $230,000) last year to the municipality. The extra funds have provided funding to protect the school from earthquake damage, and to provide residents free garbage disposal and other services. Given that the economic base for the town and others in the region is primarily agricultural, having a cutting-edge renewable energy source is about as current as you can get. See Tiny Italian Hamlet Scores Big in Wind Power.

 

 

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 December 2010

Air Quality Compliance Materials and Tools

Analysis of Major Air Quality Compliance Issues

Other

Greenhouse Gas Reporting Requirements Issued for Petroleum and Natural Gas Systems
On November 30, 2010 (75 FR 74458–74515), EPA issued greenhouse gas monitoring and reporting requirements for petroleum and natural gas systems. The new requirements apply to the following segments of the petroleum and natural gas systems source category: 1) offshore petroleum and natural gas production, 2) onshore petroleum and natural gas production, 3) onshore natural gas processing, 4) onshore natural gas transmission compression, 5) underground natural gas storage, 6) liquefied natural gas (LNG) storage, 7) LNG import and export facilities, and 8) natural gas distribution. Under the November 30, 2010 final rule, affected entities are required to annually report emissions of greenhouse gases. The agency estimates that the final rule will require 2,786 entities to submit reports. The first annual report for entities affected by the final rule is due March 31, 2012, and covers emissions for calendar year 2011. Monitoring and recordkeeping requirements start January 1, 2011.

Air Quality Regulatory Analysis Articles

NAAQS

Sixteen Areas Designated Nonattainment for the 2008 Lead NAAQS
On November 22, 2010 (75 FR 71033–71044), EPA designated 16 areas as being nonattainment for the 2008 lead national ambient air quality standards (NAAQS). The agency’s final November 22, 2010 nonattainment designations are based on ambient air quality monitoring data for 2007–2009. For the areas designated nonattainment in the final rule, states are required to submit a state implementation plan (SIP) to EPA by June 30, 2012. The SIP must provide for attainment of the lead NAAQS as expeditiously as possible, but no later than December 31, 2015.


NESHAP/MACT

Proposed Rule Addresses Residual Risk and Technology Review for 12 MACT Source Categories
CAA Section 112(f) requires EPA to evaluate the residual risk associated with hazardous air pollutant (HAP) emissions from sources subject to maximum achievable control technology (MACT) standards once the standards have been fully implemented. Under the provisions of CAA Section 112(d)(6), the agency is also required to periodically review and, if necessary, revise MACT standards to reflect new emission control techniques or practices. On October 21, 2010 (75 FR 65068–65149), EPA proposed revisions to six MACT standards to address the residual risk and technology reviews conducted for the following 12 source categories: 1) hard chromium electroplating, 2) decorative chromium electroplating, 3) chromic acid anodizing, 4) epichlorohydrin elastomers production, 5) Hypalon™ production, 6) nitrile butadiene rubber production, 7) polybutadiene rubber production, 8) styrene butadiene rubber and latex production, 9) marine tank vessel loading operations, 10) pharmaceuticals production, 11) printing and publishing, and 12) hydrochloric acid (HCl) steel pickling and HCl regeneration plants.

PSD/NSR Permitting

Guidance Issued on PSD and Title V Permitting of Greenhouse Gas Emission Sources
On November 17, 2010 (75 FR 70254–70256), EPA announced the availability of new guidance on prevention of significant deterioration (PSD) and CAA Title V permitting of greenhouse gas emission sources. The November 2010 guidance document, PSD and Title V Permitting Guidance For Greenhouse Gases, is intended to help permit writers and permit applicants address PSD and Title V requirements for greenhouse gases that take effect beginning January 2, 2011. In the guidance document, EPA describes the requirements of the PSD and Title V permitting regulations, and how these requirements apply to greenhouse gases. The agency has also issued guidance on available and emerging technologies that might be considered in best available control technology (BACT) analyses for greenhouse gases. The agency’s guidance documents on available and emerging technologies address the following industries: 1) the portland cement industry; 2) coal-fired electric generating units; 3) industrial, commercial, and institutional boilers; 4) the iron and steel industry; 5) the nitric acid production industry; 6) the pulp and paper manufacturing industry; and 7) the petroleum refining industry.

Other Issues

Revisions Made to Greenhouse Gas Emission Reporting Requirements
In an October 28, 2010 final rule (75 FR 66434–66479), EPA made numerous revisions to the greenhouse gas reporting rule in 40 CFR Part 98. The amendments are intended to clarify certain provisions, correct technical and editorial errors, and address questions and issues that have arisen since the rule was promulgated. With two exceptions, the changes to the greenhouse gas reporting requirements apply to reports covering calendar year 2010 (due March 31, 2011). The first exception is for reporting carbon dioxide (CO2) emissions from certain types of decarburization vessels at iron and steel manufacturing sources under Part 98, Subpart Q. The second exception is related to the way a batch of crude oil is defined at refineries for the purposes of reporting crude oil data for 2010 under Subpart MM.

Reviews of Court Decisions and Consent Decrees

 

Appeals Court Vacates 2009 Changes to the HCFC Allowance System
In an August 27, 2010 decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated a portion of the 2009 changes to EPA’s hydrochlorofluorocarbon (HCFC) allowance system (Arkema Inc. v. EPA, No. 09-1318 [D.C. Cir. Aug. 27, 2010]). On December 15, 2009 (74 FR 66412), the agency issued a final rule intended to ensure progress toward a phaseout of HCFCs. In the decision, the court vacated and remanded the part of the 2009 rulemaking that retroactively affected baseline HCFC allowances, ruling that it unacceptably altered transactions that the agency had previously approved.

EAB Upholds PSD Permit for Illinois Synthetic Natural Gas Plant
In an August 13, 2010 decision, EPA’s Environmental Appeals Board (EAB) upheld Illinois’ best available control technology (BACT) determination for a synthetic natural gas (SNG) manufacturing plant in Jefferson County, Illinois (In re: Power Holdings of Illinois, LLC, PSD Appeal No. 09-04). In the case, Sierra Club argued that the plant’s flare minimization plan should be part of the prevention of significant deterioration (PSD) permit, the PSD permit did not consider the collateral impacts of using SNG as fuel at the facility, and the permit should have regulated greenhouse gas emissions. In the decision, the EAB found that the state agency’s permitting decisions were reasonable, and denied Sierra Club’s petition for review.

District Court Rules Failure to Obtain PSD Permit and Install BACT Are Ongoing Violations
In an October 21, 2010 opinion, the U.S. District Court for the Western District of Wisconsin determined that alleged failure to obtain a prevention of significant deterioration (PSD) permit and install best available control technology (BACT) were ongoing violations, and therefore not subject to the statute of limitations (Sierra Club v. Dairyland Power Cooperative, No. 10-cv-303 [W.D. Wis. Oct. 21, 2010]). In the case, Sierra Club argued that modifications to the power plants at issue should have undergone PSD permitting, including determination of BACT and ambient air quality impact analyses. Dairyland Power Cooperative asked the court to dismiss any allegations pertaining to modifications that occurred more than five years ago. In the October 21, 2010 opinion, the district court concluded that the PSD permitting program establishes requirements applicable not only to construction, but also to ongoing facility operation. As such, even though the modifications at issue may have occurred more than five years ago, they were ongoing violations as a result of not having obtained a PSD permit prior to construction.

 

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

 

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

EPA Adds 16 Carcinogens to EPCRA Section 313 List of Toxic Chemicals
Under EPCRA Section 313, facilities that manufacture, process, or otherwise use certain toxic chemicals in excess of specified threshold quantities must annually report environmental releases of the chemicals. The data must be provided annually on a toxics release inventory (TRI) reporting form (e.g., Form R). On November 26, 2010 (75 FR 72727–72734), EPA added 16 chemicals to the list of toxic chemicals that are subject to Section 313 reporting requirements. EPA believes that the chemicals meet the EPCRA 313(d)(2)(B) criteria for listing because they can reasonably be anticipated to cause cancer in humans.

Hazardous Waste Listings

Additional Data Available on Coal Combustion Residuals Proposed Rule
EPA proposed RCRA regulations for coal combustion residuals (CCRs) generated from the combustion of coal at electric utilities and independent power producers on June 21, 2010 (75 FR 35128). If finalized, the rule would affect 40 CFR Parts 257, 261, 264, 265, 268, 271, and 302. On October 21, 2010 (75 FR 64974-64976), the agency issued a notice of data availability (NODA) to request public comment on new information and data relating to the CCR proposed rule. The new information includes responses to Information Collection Requests (ICRs) from electric utilities that have CCR surface impoundments, site assessment reports, and facility action plans. EPA accepted comments on the NODA notice until November 19, 2010.

Saccharin and Its Salts Deleted From RCRA and CERCLA Hazardous Waste Lists
On December 17, 2010 (75 FR 78918–78926), EPA deleted saccharin and its salts from the RCRA list of hazardous wastes and the CERCLA list of hazardous substances. The affected wastes were identified as hazardous waste number U202. In response to a petition from the Calorie Control Council requesting removal of saccharin and its salts, EPA reviewed evaluations by key public health agencies, and assessed waste generation and management information. Based on its review and assessment, the agency has concluded that saccharin and its salts do not meet the criteria for being listed as hazardous constituents, hazardous wastes, or hazardous substances.

Other

TSCA Petition to Ban Lead Fishing Gear Denied
On November 17, 2010 (75 FR 70246–70248), EPA announced that it has denied a petition requesting that the agency prohibit the manufacture, processing, and distribution in commerce of lead fishing gear. Several environmental groups submitted the August 3, 2010 petition under Section 21 of the Toxic Substances Control Act (TSCA). The agency’s decision is based on its determination that the petitioners failed to demonstrate that a national ban on lead fishing gear is necessary to protect public health or the environment, or that such a ban would be the least burdensome alternative to address the adverse impacts of lead fishing gear.

Reviews of Court Decisions and Consent Decrees

Construction Company That Damaged Pipeline Is Not Liable For Methanol Release
In a September 20, 2010 decision, the U.S. Court of Appeals for the Fifth Circuit ruled that a construction company was not liable as a superfund “arranger” for disposal of a hazardous substance (Celanese Corporation v. Martin K. Eby Construction Co., No. 09-20487 [5th Cir. Sept. 20, 2010]). The construction company unknowingly damaged a methanol pipeline while laying water pipes in 1979, which ultimately caused a leak that was discovered in 2002. The appeals court affirmed the district court’s decision, which denied the methanol pipeline company’s motion to find that the construction company was an arranger under both CERCLA and the Texas Solid Waste Disposal Act.

CERCLA Fiduciary Exemption Shields Party Who Acted as Both Site Trustee and Remediation Contractor
In an October 4, 2010 decision, the U.S. District Court for the Northern District of California found that a Superfund fiduciary exemption provides liability protection for a party who acted as both a trustee of an entity that owned a contaminated site, and as a contractor to remediate the contaminated property (Palmtree Acquisition Corp. v. Evers, No. 08-3168 [N.D. Cal. Oct. 4, 2010]). The court determined that, although the trustee may have benefited from his fiduciary position when he accepted compensation for overseeing the site cleanup, the plaintiffs in the case failed to demonstrate that he did anything improper in his role as trustee. Therefore, the CERCLA Section 107(n)(1) provision that bars personal liability for fiduciaries precludes a lawsuit against the trustee, in spite of his dual role at the site.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Issues

 

Water Quality

Numeric Water Quality Standards Issued for Lakes and Flowing Waters in Florida
On December 6, 2010 (75 FR 75762–75807), EPA issued numeric water quality criteria for Florida’s lakes, flowing waters, and springs. Entities discharging nitrogen or phosphorus to lakes and flowing waters of Florida could be indirectly affected by the final criteria because water quality standards are used in determining limits included in National Pollutant Discharge Elimination System (NPDES) permits. Excess loadings of nitrogen and phosphorus, commonly referred to as nutrient pollution, are one of the most prevalent causes of water quality impairment in the United States. High nitrogen and phosphorus loadings can result in harmful algal blooms, reduced spawning grounds and nursery habitats, fish kills, and oxygen-starved hypoxic or “dead” zones. In Florida, nutrient pollution has contributed to severe water quality degradation.


Court Decisions

The following court decisions were added in December 2010:

  • Akiak Native Community v. EPA, No. 08-74872 (9th Cir. Nov. 4, 2010)—Ninth Circuit Court upholds EPA decision to transfer NPDES permitting authority to state of Alaska.

 

  • West Virginia Highlands Conservancy, Inc. v. Huffman, No. 09-1474 (4th Cir. Nov. 8, 2010)—Fourth Circuit Court upholds decision that the West Virginia Department of Environmental Protection must obtain NPDES permits for reclamation efforts at abandoned coal mining sites.
  • In re: Smith Farm Enterprises, LLC, CWA Appeal No. 08-02 (EPA Sept. 30, 2010)—Environmental Appeals Board finds that EPA has jurisdiction over wetlands under the “significant nexus” test of the Supreme Court’s Rapanos decision.

 

News

Business and the Environment

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

Focus Report

  • Tiny Italian Hamlet Scores Big in Wind Power

Perspectives

  • The Ceres Conference 2010: Roadmap for a Sustainable Future

Corporate Reporting

  • CSR Reporting Increases in Spite of Economy
  • New GRI Guidelines on the Horizon
  • New Zealand Reporting Challenge

Corporate Initiatives

  • Emerging Green Initiatives in Transport
  • Ship Efficiency Measures Could Become Mandatory
  • Clean Ships to Be Recognized

Product Stewardship and Takeback

  • British Company’s “WEEE” Lapse Merits Stiff Fine
  • TV Power Use Sparks Labeling Change
  • The Secure and Responsible Drug Disposal Act of 2010


ISO Update

  • GM Brazil’s ISO 14001 Accomplishments Win Regional Support

Climate Change Update

  • The Kyoto Protocol’s Clean Development Mechanism
  • Increases in Rice Yields Decline With Warming
  • Global Carbon Dioxide Emissions Fell in 2009