Environmental Compliance Update – July 2010

Environmental Compliance Update
July 2010
Additions to the   Environmental Compliance Portfolio
During June 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
June 2010 additions to the   Air Quality Compliance   module included:
•    Eight new regulatory analysis articles were added, along with supporting   Federal
Register   documents.
•    One new case summary was added, along with the associated court decision.
•    Volume 20, Issue 4 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:
•     Proposed Emission Standards Applicable to 92,000 Facilities  —  On June 4,
2010 (75   FR   31896–31935), EPA proposed national emission standards for
hazardous air pollutant (HAP) emissions from industrial, commercial, and
institutional boilers located at area sources. The proposed rule would establish
emission limits for mercury, particulate matter, and carbon monoxide (CO) that
would apply to new boilers, and to existing boilers with a design heat input
capacity of  10 MMBtu/hr. In addition, all existing area sources with an affected   =
boiler  10 MMBtu/hr would be required to undergo an energy assessment to   =
identify cost-effective conservation measures. For existing small boilers (i.e.,
boilers with a heat input capacity <10 MMBtu/hr), owners/operators would be
required to perform a boiler tune-up every two years. EPA estimates that the
proposed rule would apply to approximately 183,000 existing boilers at
92,000  facilities in the United States. In addition, the agency anticipates that
approximately 6,800 new area source boilers will be installed over the next
1

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three  years, and would be regulated under the proposed standards. See
Emission Standards Proposed for Industrial, Commercial, and Institutional
Boilers at Area Sources  .
•     Greenhouse Gas Tailoring Rule Issued  —  On June 3, 2010 (75   FR   31514–
31608), EPA established new greenhouse gas emission thresholds for
determining which stationary sources and modifications are subject to prevention
of significant deterioration (PSD) and CAA Title V permitting requirements. Under
the greenhouse gas tailoring rule, permitting requirements for sources of
greenhouse gases will be implemented in phases. In the first phase, beginning
January 2, 2011, only sources currently subject to PSD due to emissions other
than greenhouse gases will be subject to permitting requirements for greenhouse
gases. For these sources, projects with greenhouse gas emission increases of
=  75,000 tons per year (tpy) on a carbon dioxide equivalent (CO e) basis will need   2
to determine best available control technology (BACT) for their greenhouse gas
emissions. Similarly, only sources otherwise subject to Title V permitting would
have to address greenhouse gases in their Title V permits. See   Greenhouse Gas
Tailoring Rule Establishes New PSD and Title V Permitting Thresholds  .

Hazardous Waste Compliance Materials and Tools
June 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.
•    The three indexes in Hazardous Waste Indexes and Finding Aids were updated
to reflect articles, cases, and guidance documents added through April 2010. In
total, index additions included:
—132 entries added to the keyword index,
—9 entries added to the citation index, and
—17 entries added to the industry index.
HOT TOPICS   include:
•     Emission-Comparable Fuel Exclusion Withdrawn  —Under the 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 issued a final rule that expanded this exclusion on
December 19, 2008 (73   FR   77954). The December 2008 final rule established a
conditional solid waste exclusion for a new category of fuel produced from
hazardous secondary materials, which is called emission-comparable fuel (ECF).
ECF includes fuels that are produced from hazardous secondary materials that,
when burned in industrial boilers under certain conditions, generate emissions
that are comparable to those from burning fuel oil in those boilers. However, the
agency has subsequently concluded that ECF is a discarded material, and
should be regulated as a hazardous waste. Accordingly, on June 15, 2010
(75   FR   33712–33724), EPA withdrew the conditional RCRA exclusion for ECF.
Due to the withdrawal of the exclusion, ECF is again classified as a hazardous

waste, and all entities managing such hazardous secondary materials are again
subject to all applicable RCRA Subtitle C hazardous waste standards. See
RCRA Emission-Comparable Fuel Exclusion Withdrawn     .

Wastewater and Water Quality Compliance Materials and Tools
June 2010 additions to the   Wastewater and Water Quality Compliance   module
included:
•    Two new regulatory analysis articles were added, along with supporting   Federal
Register   documents.
•    Three court decisions were added.
HOT TOPICS   include:
•     Clean Water Act Permits for Applying Pesticides  —On June 4, 2010 (75   FR
31775–31785), EPA proposed a draft National Pollutant Discharge Elimination
System (NPDES) permit for discharges of pesticides to waters of the United
States. The proposed permit has been issued in response to a decision by the
U.S. Court of Appeals for the Sixth Circuit that vacated an EPA regulation that
exempts from Clean Water Act (CWA) permitting pesticides that are applied in
compliance with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
requirements. The proposed general NPDES permit would apply in areas of the
United States where EPA is the permitting authority, and would cover the
application of biological pesticides and chemical pesticides that leave a residue
when used for the following: 1) mosquito and other flying insect pest control,
2)  aquatic weed and algae control, 3) aquatic nuisance animal control, and
4) forest canopy pest control. Chemical pesticides that do not leave a residue do
not require an NPDES permit; however, for the purposes of the proposed general
permit, EPA has assumed that all chemical pesticides leave a residue. EPA
estimates that the pesticide general permit will affect approximately
35,000  pesticide applicators that perform an estimated 500,000 pesticide
applications annually. See   NPDES Permit for Pesticide Application Proposed    .

Business and the Environment
The June 2010 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:
•     Corporate Reporting on Water Risks  —According to a recent study of
corporate reporting on water risk, a majority of companies surveyed recognize
some level of exposure to water risks. Ceres’ report,   Murky Waters? Corporate
Reporting on Water Risk   (February 2010) suggests that the Global Reporting
Initiative (GRI) G3 Guidelines’ five water-related indicators (total withdrawal
volume by source, water sources significantly affected by withdrawals,
percentage and total volume of water recycled and reused, total water discharge
by quality and destination, and identification of water bodies and related habitats
affected by discharges) are a good starting point for assessing and reporting

water risks. However, Ceres cautions that GRI’s metrics focus on company-wide
indicators, and this may obscure local-level impacts and supply chain issues.
See   Paddling Upstream — Approaches to Corporate Water Reporting.

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 June 2010

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

Other

Greenhouse Gas Reporting Requirements for Additional Industries Proposed
In three April 12, 2010 proposed rules, EPA proposed greenhouse gas reporting
requirements for carbon dioxide (CO ) injection for geologic sequestration (75   2  FR
18576–18606), petroleum and natural gas systems (75   FR   18608–18650), and
additional sources of fluorinated greenhouse gases (75   FR   18652–18723). The
proposed reporting requirements for sources of fluorinated greenhouse gases would
apply to electronics manufacturers, fluorinated gas production facilities, entities that
manufacture or refurbish electrical equipment, and importers and exporters of pre-
charged equipment or closed-cell foams containing fluorinated greenhouse gases. In a
fourth April 12, 2010 proposed rule (75   FR   18455–18468), EPA proposed to modify the
greenhouse gas reporting rule general provisions to require affected entities to submit
additional information. The proposed changes to the greenhouse gas reporting rule
general provisions would apply not only to the source categories covered under the
other April 12, 2010 proposed rules, but also to all entities subject to mandatory
greenhouse gas reporting.
Air Quality Regulatory Analysis Articles

NESHAP/MACT

MACT Standards Proposed for Gold Mine Ore Processing and Production
On April 28, 2010 (75   FR   22470–22496), EPA proposed national mercury emission
standards for the gold mine ore processing and production source category. The
proposed maximum achievable control technology (MACT) standards would apply to
gold mine ore processing and production facilities that are area sources, and that use
any of the thermal processes specified in the proposed standards. The agency indicates

that about 21 gold mine ore processing and production facilities would be covered under
the proposed rule.

Emission Standards Proposed for Industrial, Commercial, and Institutional Boilers
at Area Sources
On June 4, 2010 (75   FR   31896–31935), EPA proposed national emission standards for
hazardous air pollutant (HAP) emissions from industrial, commercial, and institutional
boilers located at area sources. The proposed rule would establish emission limits for
mercury, particulate matter, and carbon monoxide (CO) that would apply to new boilers,
and to existing boilers with a design heat input capacity of  10 MMBtu/hr. In addition, all   =
existing area sources with an affected boiler  10 MMBtu/hr would be required to   =
undergo an energy assessment to identify cost-effective conservation measures. For
existing small boilers (i.e., boilers with a heat input capacity <10 MMBtu/hr),
owners/operators would be required to perform a boiler tune-up every two years. EPA
estimates that the proposed rule would apply to approximately 183,000 existing boilers
at 92,000 facilities in the United States. In addition, the agency anticipates that
approximately 6,800 new area source boilers will be installed over the next three years,
and would be regulated under the proposed standards.

NSPS/Emission Guidelines

Revisions Proposed to Emission Limits in NSPS for Large Medical Waste
Incinerators
On May 14, 2010 (75   FR   27249–27255), EPA proposed to revise the emission limits for
nitrogen oxides (NO ) and sulfur dioxide (SO ) in the new source performance standards   x  2
(NSPS) for large hospital, medical, and infectious waste incinerators. The proposed
changes to the NO  and SO  emission limits will ensure that the values are reflective of   x  2
the standard-setting process described by the agency. In addition, the proposed rule
would correct erroneous cross references in the recordkeeping and reporting
requirements in Part 60, Subpart Ec.

PSD/NSR Permitting

Rulemaking Addressing Aggregation in NSR Permitting Stayed Indefinitely
On January 15, 2009 (74   FR   2376), EPA finalized an interpretation of how to address
aggregation under existing new source review (NSR) regulations. The term
“aggregation” describes the process of grouping together multiple physical changes or
changes in method of operation into one project for the purposes of NSR applicability.
The final rule established a rebuttable presumption that a physical or operational change
that has operated three years or more is not substantially related to subsequent
changes. In a series of actions, the effective date of the January 15, 2009 NSR
aggregation amendments was stayed until May 18, 2010. On May 18, 2010 (75   FR
27643–27644), EPA stayed indefinitely the effective date of the January 15, 2009
rulemaking.

Greenhouse Gas Tailoring Rule Establishes New PSD and Title V Permitting
Thresholds
On June 3, 2010 (75   FR   31514–31608), EPA established new greenhouse gas emission
thresholds for determining which stationary sources and modifications are subject to
prevention of significant deterioration (PSD) and CAA Title V permitting requirements.
Under the greenhouse gas tailoring rule, permitting requirements for sources of

greenhouse gases will be implemented in phases. In the first phase, beginning
January 2, 2011, only sources currently subject to PSD due to emissions other than
greenhouse gases will be subject to permitting requirements for greenhouse gases. For
these sources, projects with greenhouse gas emission increases of  75,000 tons per   =
year (tpy) on a carbon dioxide equivalent (CO e) basis will need to determine best   2
available control technology (BACT) for their greenhouse gas emissions. Similarly, only
sources otherwise subject to Title V permitting would have to address greenhouse gases
in their Title V permits.

Stratospheric Ozone Protection

EPA Proposes Approval of Hydrocarbons as ODS Substitutes in Refrigerators and
Freezers
On May 10, 2010 (75   FR   25799–25815), EPA proposed to approve the use of
isobutane, propane, and two hydrocarbon blends as substitutes for ozone-depleting
substances (ODS) in household refrigerators and freezers, and retail food refrigerators
and freezers. Under the proposed rule, isobutane, propane, and the two hydrocarbon
blends could be used in new refrigerators and freezers, subject to use conditions. The
proposed use conditions are intended to create awareness that a flammable refrigerant
is contained in the refrigerator or freezer, and to ensure safe handling.

Other Issues

Motor Vehicle Fuel Economy and Greenhouse Gas Emission Standards Issued
On May 7, 2010 (75   FR   25324–25728), EPA and the National Highway Traffic Safety
Administration (NHTSA) issued a joint final rule establishing motor vehicle fuel economy
and greenhouse gas emission standards. The joint final rule covers passenger cars,
light-duty trucks, and medium-duty passenger vehicles built in model years 2012 through
2016. EPA expects that the May 7, 2010 final rule will result in a fleet-wide carbon
dioxide (CO ) emission rate of 250 grams per mile (g/mi) in the 2016 model year. The   2
NHTSA projects that, under the final rule, national fleet-wide fuel economy for passenger
cars and light-duty trucks would be 32.7 miles per gallon (mpg) in the 2016 model year.

Reviews of Court Decisions and Consent Decrees

Court Rules Power Plant Projects Were Routine Maintenance, Repair, and
Replacement
In an April 1, 2010 decision, the U.S. District Court for the Eastern District of Tennessee
found that two projects at a power plant fell within the routine maintenance, repair, and
replacement exception to prevention of significant deterioration (PSD) permitting
requirements for major modifications (  National Parks Conservation Association v.
Tennessee Valley Authority  , No. 3:01-CV-71). Although it was argued that the projects
constituted “major modifications” under the PSD regulations and should have undergone
permitting as such, the district court determined that they fell within the routine
maintenance, repair, and replacement exception to PSD permitting requirements.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

Exclusions/Exemptions

RCRA Emission-Comparable Fuel Exclusion Withdrawn
Under the 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 issued a final rule that expanded this exclusion on December 19, 2008
(73   FR   77954). The December 2008 final rule established a conditional solid waste
exclusion for a new category of fuel produced from hazardous secondary materials,
which is called emission-comparable fuel (ECF). ECF includes fuels that are produced
from hazardous secondary materials that, when burned in industrial boilers under certain
conditions, generate emissions that are comparable to those from burning fuel oil in
those boilers. However, the agency has subsequently concluded that ECF is a discarded
material, and should be regulated as a hazardous waste. Accordingly, on June 15, 2010
(75   FR   33712–33724), EPA withdrew the conditional RCRA exclusion for ECF. Due to
the withdrawal of the exclusion, ECF is again classified as a hazardous waste, and all
entities managing such hazardous secondary materials are again subject to all
applicable RCRA Subtitle C hazardous waste standards.

Hazardous Waste Listings

EPA Proposes Deleting Saccharine From Hazardous Waste Lists
On April 22, 2010 (75   FR   20942–20951), EPA proposed deleting saccharine and its
salts from the RCRA list of hazardous wastes and the CERCLA list of hazardous
substances. The affected wastes are listed in 40   CFR   §261.33(f) as hazardous waste
number U202. The action is in response to a petition from the Calorie Control Council
(CCC). Based on its review, EPA believes that saccharin and its salts do not meet the
criteria for designation as hazardous wastes. Accordingly, EPA is proposing to grant
CCC’s petition.

RCRA Programs

EPA Issues Partial Withdrawal of RCRA Corrections and Clarifications Rule
EPA issued a direct final rule on March 18, 2010 (75   FR   12989) that made
approximately 90 changes to the RCRA regulations. The amendments were
promulgated to: 1) correct typographical errors, incorrect or outdated citations, and
omissions; 2) amend inadvertent errors and oversights that were made when new rules
were promulgated; 3) clarify existing parts of the hazardous waste regulatory program;
and 4) update references to U.S. Department of Transportation (DOT) regulations. The
changes were to take effect June 16, 2010. However, the agency received adverse
comments on four of the direct final rule’s amendments. As a result, on June 4, 2010
(75   FR   31716–31717), EPA withdrew the four affected provisions and one related
provision. The rule also withdraws one provision that contained a typographical error.

Other

Lead-Based Paint Rule Revised, and New Changes Announced and Proposed
Lead-based paint was banned for residential use in the United States in 1978. However,
it is estimated that more than 38 million homes in the United States still contain some
lead-based paint. Lead released during renovation, repair, or painting of these homes
can create a serious health hazard, especially to young children. On April 22, 2008
(73   FR   21692), the agency finalized Toxic Substances Control Act (TSCA) requirements
that are designed to reduce lead exposure caused by renovation, repair, and painting
activities in target housing and child-occupied facilities. On May 6, 2010, EPA issued
three rulemaking actions that pertain to the 2008 rule: 1) in a May 6, 2010 final rule
(75   FR   24802–24819), EPA promulgated changes that eliminate the 2008 rule’s “opt-
out” provision; 2) in an advance notice of proposed rulemaking (75   FR   24848–24862;
May 6, 2010), EPA announced that it plans to develop TSCA regulations addressing the
renovation, repair, and painting of public and commercial buildings; and 3) in a proposed
rule issued May 6, 2010 (75   FR   25038–25073), EPA proposed revisions to the lead
clearance and clearance testing requirements of the 2008 rule.

Reviews of Court Decisions and Consent Decrees

Manufacturers of Dry Cleaning Machines Not Liable for Cleanup Costs
In a March 12, 2010 decision, the U.S. District Court for the Eastern District of California
dismissed a suit that sought to recover environmental remediation costs from
two  companies that manufactured dry cleaning machines and prepared operating
instructions for those machines (  Hinds Investments, L.P. v. Team Enterprises, Inc.  ;
No.  07-0703 [ED. Cal. Mar. 12, 2010]). The plaintiffs in the case claimed that the
operating instructions directed users to discharge hazardous substances into the
environment by directing wastewater to be discharged into an open drain. However, the
district court found that the manufacturing companies’ involvement in the contamination
had been passive, and that they had not taken “affirmative steps” toward improper
disposal.

Equipment Lessor Liable as a CERCLA Owner for Remediation Costs
In a February 9, 2010 decision, the U.S. District Court for the Northern District of Illinois
ruled that a person who leases equipment to an independent party is liable as a
CERCLA owner, if the equipment causes pollution (  United States v. Saporito  , No. 07-C-
3169 [N.D. Ill. Feb. 9, 2010]). The court also dismissed the lessor’s arguments that EPA
had failed to show a connection between spills of hazardous substances and the
eventual remediation because CERCLA does not require causation for liability.

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

Wastewater

NPDES Permit for Pesticide Application Proposed
On June 4, 2010 (75   FR   31775–31785), EPA proposed a draft National Pollutant
Discharge Elimination System (NPDES) permit for discharges of pesticides to waters of
the United States. The proposed permit has been issued in response to a decision by
the U.S. Court of Appeals for the Sixth Circuit that vacated an EPA regulation that
exempts from Clean Water Act (CWA) permitting pesticides that are applied in
compliance with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
requirements. The proposed general NPDES permit would apply in areas of the United
States where EPA is the permitting authority, and would cover the application of
biological pesticides and chemical pesticides that leave a residue when used for the
following: 1) mosquito and other flying insect pest control, 2) aquatic weed and algae
control, 3) aquatic nuisance animal control, and 4) forest canopy pest control. Chemical
pesticides that do not leave a residue do not require an NPDES permit; however, for the
purposes of the proposed general permit, EPA has assumed that all chemical pesticides
leave a residue. EPA estimates that the pesticide general permit will affect
approximately 35,000 pesticide applicators that perform an estimated 500,000 pesticide
applications annually.

Water Quality

EPA Approves 12 Alternative Methods for Drinking Water Sampling and Analysis
In a June 8, 2010 final rule (75   FR   32295–32302), EPA announced its approval of
12  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 methods include one developed by EPA, six updated or new ASTM
methods, two other methods developed by a voluntary consensus standard body, and
three methods developed by vendors. The new methods are listed in Appendix A to
40   CFR   Part 141, Subpart C.

Court Decisions

The following court decisions were added in June 2010:

•     Northern Cheyenne Tribe v. Montana Dept. of Environmental Protection,   2010
MT 111 (Mont. 2010) The Montana Supreme Court ruled that the state’s   —
Department of Environmental Quality is required to include technology-based
pre-treatment standards in an NPDES permit for wastewater discharges
associated with coal bed methane extraction.
•     In re: Upper Blackstone Water Pollution Abatement District,   NPDES Appeal
Nos.  08-11 to 10-18 & 09-06 (EPA May 28, 2010)  —  EPA’s Environmental
Appeals Board upheld all but one aspect of an NPDES permit for a wastewater
treatment plant in Millbury, Massachusetts. The board remanded to EPA

Region 1 the portion of the permit expanding coverage of the permit terms and
conditions to separately owned and operated collection systems discharging to
the treatment plant.
•     Butte Environmental Council v. U.S. Army Corps of Engineers,   No. 09-15363 (9th
Cir. June 1, 2010) The U.S. Court of Appeals for the Ninth Circuit upheld an   —
Army Corps of Engineers’ decision to issue a CWA Section 404 permit to fill
wetlands in association with the construction of a business park. The court also
upheld the U.S. Fish and Wildlife Service’s finding that the project would not
appreciably diminish critical habitat.

Business and the Environment

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

Focus Report
•    Paddling Upstream — Approaches to Corporate Water Reporting

Perspectives
•    Looking Under the Hood at Toyota — Part 2

Corporate Reporting
•    Murky Waters? Ceres Studies Corporate Reporting on Water Risk
•    Video Livens Up Reporting

Corporate Initiatives
•    Five Steps to a Greener IT Supply Chain
•    Ford Goes Sustainable

Product Stewardship and Takeback
•    E-Waste in Developing Countries
•    White Pages May Go the Way of the Dodo

ISO Update
•    The ISO 14000 Family of Standards Expands

Climate Change Update
•    EPA Finalizes GHG Permitting Requirements
•    Climate Bill Introduced in US Senate
•    Warming Peat Releases Carbon
•    China Could Levy Carbon Tax in 2012