Environmental Compliance Update – June 2010

Environmental Compliance Update
June 2010
Additions to the   Environmental Compliance Portfolio
During May 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
May 2010 additions to the   Air Quality Compliance   module included:
•    Ten new regulatory analysis articles were added, along with supporting   Federal
Register   documents.
•    Three new case summaries were added, along with the associated court
decisions.
•    The three indexes in Air Quality Indexes and Finding Aids were updated to reflect
articles, cases, and guidance documents added through April 2010. In total,
index additions included:
—356 entries added to the keyword index,
—142 entries added to the citation index, and
—106 entries added to the industry index.
HOT TOPICS   include:
•     “Subject to Regulation” and PSD Applicability  —  In an April 2, 2010 final rule
(75   FR   17004–17023), EPA issued its final decision on interpreting the phrase
“subject to regulation” with respect to when prevention of significant deterioration
(PSD) permitting requirements are triggered. Under the agency’s interpretation, a
pollutant is subject to regulation when a CAA provision or an EPA regulation
requires actual control of the pollutant. Under the interpretation presented in the
April 2, 2010 final rule, carbon dioxide (CO ) will become a PSD regulated   2
pollutant on the date that EPA’s regulations limiting CO  and other greenhouse   2
gas emissions from motor vehicles require control of emissions. Because the
motor vehicle emission standards are to be implemented beginning with the 2012
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model year, the date those standards require emission control is January 2,
2011. Therefore, PSD permits issued on or after that date will need to address
CO  emissions. See   2  Final Action Taken on Interpretation of “Subject to
Regulation” and PSD Applicability  .

Hazardous Waste Compliance Materials and Tools
May 2010 additions to the   Hazardous Waste Compliance   module included:
•    Two new regulatory analysis articles were added, along with supporting   Federal
Register   documents.
•    Volume 28, Issue 3 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:
•     New Directory of Recycling Facilities Available  —The   2010 Directory of U.S.
Commercial Recycling Facilities   provides a list of facilities by state, an index to
the facilities by company name, and an index to the facilities by the type of
material recycled. The facilities can handle one or more of a variety of recyclable
materials, including: aqueous solutions/wastes, batteries, characteristic
hazardous wastes, chemicals, commercial chemical/off-specification products,
computers/cathode ray tubes (CRTs)/electronics, dry cleaning solvent, electric
arc furnace dust (K061 wastes), explosives, fuels, inorganic wastes,
lamps/ballasts/bulbs, lead wastes, liquid hazardous wastes, listed hazardous
wastes, mercury wastes, metals/metal wastes/toxicity characteristic leaching
procedure (TCLP) toxic metals/scrap metal, organic wastes, other wastes, paint
wastes, polychlorinated biphenyls (PCBs), pesticides, photochemical wastes,
reactives, refrigerants, sludges/solids, soil, solder dross, solvents/spent solvents,
spent activated carbon, spent sorbents, still bottom wastes, used oil/waste oil/oily
wastes, waste acids/waste caustics, and wastewaters. See   2010 Directory of
U.S. Commercial Recycling Facilities    .

Wastewater and Water Quality Compliance Materials and Tools
May 2010 additions to the   Wastewater and Water Quality Compliance   module
included:
•    The three indexes in Wastewater and Water Quality Indexes and Finding Aids
were updated to reflect articles, cases, and guidance documents added through
April 2010. In total, index additions included:
—139 entries added to the keyword index,
—40 entries added to the citation index, and
—17 entries added to the industry index.

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Business and the Environment
The May 2010 issue of the   Business and the Environment   newsletter included
nine stories on   sustainable development   and three stories on recent   climate change
developments  .
HOT TOPICS   include:
•     The Green Chill Partnership  —  Business and the Environment   recently had the
opportunity to sit down with Kathy Loftus of Whole Foods Market to discuss the
grocer’s involvement with the U.S. Environmental Protection Agency’s Green
Chill program. Loftus is responsible for a number of Whole Food Market’s
initiatives in the areas of energy and facilities management, sustainability, and
“green” buildings. Recently returned from an extended tour of a number of Whole
Foods Market locations, Loftus discussed the company’s participation as a
founding member of the Green Chill program. The concept behind EPA’s
voluntary program is for grocers to move away from ozone-depleting refrigerants,
such as chlorofluorocarbons (CFCs), hydrofluorocarbons (HFCs), and
hydrochlorofluorocarbons (HCFCs), and shift to substances approved under the
agency’s significant new alternatives policy (SNAP) program. Whole Foods
Market had earlier participated in other EPA-led programs; namely, Green Power
and Energy Star. As a result, EPA approached Whole Foods Market and asked
whether the food retailer was interested in becoming a founding member. See
Whole Foods Market Serves Up EPA’s Green Chill.

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 May 2010

Air Quality Compliance Materials and Tools
Air Quality Regulatory Analysis Articles

NESHAP/MACT

EPA Proposes to Revise Requirements for CAA Section 112(j) Case-by-Case
MACT Determinations
On March 30, 2010 (75   FR   15655–15664), EPA proposed to revise the agency’s
regulations governing CAA Section 112(j) case-by-case emission limits for major
sources of hazardous air pollutants (HAPs). Section 112(j) provides generally that major
sources in a listed category or subcategory for which EPA fails to promulgate a
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maximum achievable control technology (MACT) standard by the deadlines established
in CAA Section 112(e)(1) and (3) must submit permit applications beginning 18 months
after the deadlines. The March 30, 2010 proposed rule would clarify and streamline the
process for establishing case-by-case emission limits in instances where an entire
MACT standard is vacated by the court. The proposed rule would also eliminate
regulatory provisions that have become obsolete or are redundant.

NSPS/Emission Guidelines

Emission Standards Issued for Large Compression-Ignition Marine Engines
On April 30, 2010 (75   FR   22896–23065), EPA issued new emission standards for large
marine diesel engines used for propulsion on oceangoing vessels. The emission
standards apply to new marine diesel engines installed on U.S. vessels with per cylinder
displacement  30 liters (Category 3 marine diesel engines), and are equivalent to the   =
nitrogen oxides (NO ) limits recently adopted in the amendments to Annex VI to the   x
International Convention for the Prevention of Pollution from Ships (MARPOL Annex VI).
The near-term standards for newly built engines apply beginning in 2011. Long-term
standards apply to newly built engines beginning in 2016, and are based on the use of
high-efficiency after-treatment technology.

PSD/NSR Permitting

Final Action Taken on Interpretation of “Subject to Regulation” and PSD
Applicability
In an April 2, 2010 final rule (75   FR   17004–17023), EPA issued its final decision on
interpreting the phrase “subject to regulation” with respect to when prevention of
significant deterioration (PSD) permitting requirements are triggered. Under the agency’s
interpretation, a pollutant is subject to regulation when a CAA provision or an EPA
regulation requires actual control of the pollutant. Under the interpretation presented in
the April 2, 2010 final rule, carbon dioxide (CO ) will become a PSD regulated pollutant   2
on the date that EPA’s regulations limiting CO  and other greenhouse gas emissions   2
from motor vehicles require control of emissions. Because the motor vehicle emission
standards are to be implemented beginning with the 2012 model year, the date those
standards require emission control is January 2, 2011. Therefore, PSD permits issued
on or after that date will need to address CO  emissions.    2

EPA Proposes to Revoke Rulemaking Addressing Aggregation in NSR Permitting
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. On April 15, 2010 (75   FR   19567–19575), the agency proposed to revoke the
January 15, 2009 interpretation. If the agency decides to revoke the NSR aggregation
interpretation, the agency intends to restore its prior policy for making case-by-case
aggregation determinations.

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State Implementation Plans

Transportation Conformity Requirements for PM-2.5 and PM-10 Nonattainment
Areas Revised
On March 24, 2010 (75   FR   14260–14285), EPA revised the agency’s transportation
conformity requirements in light of the new national ambient air quality standards
(NAAQS) for particulate matter that were issued in 2006. Transportation conformity is
required under CAA Section 176(c) to ensure that federally supported highway and
transit activities are consistent with (i.e., “conform to”) the purpose of a state
implementation plan (SIP). The March 24, 2010 final rule updates the transportation
conformity regulations to provide guidance and rules for implementing transportation
conformity for the new NAAQS. The final rule also clarifies the regulations concerning
hot spot analyses.

General Conformity Regulations Revised
On April 5, 2010 (75   FR   17254–17279), EPA revised the regulations relating to the CAA
requirement that federal actions be consistent with, or “conform to,” the applicable state
implementation plan (SIP), federal implementation plan (FIP), or tribal implementation
plan (TIP). Federal actions include any activity that a department, agency, or
instrumentality of the federal government supports in any way, provides financial
assistance for, licenses, permits, or approves. Many permitting or approval actions by
state or local agencies fall under the “supported in any way” umbrella, and thus are
subject to general conformity requirements. The final rule streamlines the process for
federal agencies and states to ensure that federal activities are accounted for in SIPs. In
addition, the final rule improves the efficiency of the process used to demonstrate that
actions will not cause or contribute to a violation of national ambient air quality standards
(NAAQS), or interfere with the purpose of the applicable SIP, FIP, or TIP.

Stratospheric Ozone Protection

Methyl Bromide Critical Use Allowances for 2010 Issued
On May 3, 2010 (75   FR   23167–23186), EPA established 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 May 3, 2010 final rule allows 1,955,775 kg of methyl
bromide to be produced or imported. In addition, up to 1,028,108 kg of the chemical can
be sold from existing stocks. The final rule also specifies the uses of methyl bromide that
qualify as critical uses in 2010.

ODS Essential Use Allowances for 2010 Issued
In a May 10, 2010 final rule (75   FR   25780–25784), EPA issued essential use allowances
for the import and production of Class I ozone-depleting substances (ODS) in 2010. The
essential use allowances permit the production and import of specific quantities of ODS
that would otherwise be subject to a regulatory phaseout. The final rule allocates
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.

Other Issues

Comment Sought on Eliminating Lead in Aviation Gasoline
On April 28, 2010 (75   FR   22440–22468), EPA issued an advance notice of proposed
rulemaking (ANPR) seeking comment on data available to evaluate lead emissions,
ambient concentrations, and potential exposure to lead associated with the continued
use of leaded aviation gasoline (avgas) in piston engine-powered aircraft. The agency
indicates that piston engine-powered aircraft operating on leaded avgas are the largest
source of lead emissions in the United States, and accounted for about 50% of the lead
emissions in the 2005 National Emission Inventory. The agency will use the information
gathered in response to the April 28, 2010 ANPR to develop a subsequent proposal
addressing whether lead emissions from aircraft using leaded avgas cause or contribute
to air pollution that may reasonably be anticipated to endanger public health. If the
agency issues “cause or contribute” and “endangerment” findings, emission standards
would then be issued. Such standards would likely result in an eventual elimination of
the use of lead in avgas.

Changes to Greenhouse Gas Reporting Rule General Provisions Withdrawn
In a March 16, 2010 direct final rule (75   FR   12451), EPA amended the general
provisions to the agency’s greenhouse gas reporting rule to better accommodate the
addition of new requirements in the future. The greenhouse gas reporting rule was
issued October 30, 2009 (74   FR   56260), and 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 (CO e) per year to submit annual   2
emission reports. Because EPA received adverse comments, the March 16, 2010 direct
final rule was withdrawn on April 30, 2010 (75   FR   22699).

Reviews of Court Decisions and Consent Decrees

Appeals Court Upholds State’s Aggregation of Oil and Gas Production Units in
Operating Permit
In a March 4, 2010 decision, the U.S. Court of Appeals for the Ninth Circuit rejected a
challenge to the method used to aggregate emission units in a Title V operating permit
for an oil and gas processing facility in Prudhoe Bay, Alaska (  MacClarence v. EPA  , No.
07-72756). In the case, it was argued that all of British Petroleum’s oil and gas
production facilities within the Prudhoe Bay unit should have been aggregated into
one facility for the purposes of Title V and new source review (NSR) permitting. In the
decision, the court held that the petitioner had not demonstrated why the aggregation
approach taken in the permit was contrary to CAA requirements. Accordingly, the court
upheld EPA’s decision not to object to the permit.

Existing Conditions, Not Maximum Permitted Capacity, Should Be Used as
Environmental Baseline
In a March 15, 2010 decision, the Supreme Court of California found that the physical
conditions actually existing at the time of analysis should have been used as the
baseline when determining whether a refinery project would have a significant
environmental impact (  Communities for a Better Environment v. South Coast Air Quality
Management District  , S161190). Although it was argued that the maximum capacity
allowed under prior permits should be used as the baseline for a new project, the court

disagreed, finding that the use of limits established in pre-existing permits was
inconsistent with the California Environmental Quality Act (CEQA).

Court Upholds EPA Approval of California’s Emission Standards for
Transportation Refrigeration Units
In an April 2, 2010 decision, the U.S. Court of Appeals for the District of Columbia Circuit
upheld EPA’s approval of California’s regulations limiting emissions from transportation
refrigeration units (TRUs) in trucks (  American Trucking Associations, Inc. v. EPA  ,
No.  09-1090). The American Trucking Associations, Inc. (ATA) argued that EPA had
misinterpreted and unreasonably applied the statutory criteria when it approved the
California rule. The federal appeals court disagreed, and denied the ATA’s petition for
review.

Hazardous Waste Compliance Materials and Tools

Analysis of Major Hazardous Waste Issues

Directories

2010 Directory of U.S. Commercial Recycling Facilities
The   2010 Directory of U.S. Commercial Recycling Facilities   provides a list of facilities by
state, an index to the facilities by company name, and an index to the facilities by the
type of material recycled. The facilities can handle one or more of a variety of recyclable
materials, including: aqueous solutions/wastes, batteries, characteristic hazardous
wastes, chemicals, commercial chemical/off-specification products, computers/cathode
ray tubes (CRTs)/electronics, dry cleaning solvent, electric arc furnace dust (K061
wastes), explosives, fuels, inorganic wastes, lamps/ballasts/bulbs, lead wastes, liquid
hazardous wastes, listed hazardous wastes, mercury wastes, metals/metal
wastes/toxicity characteristic leaching procedure (TCLP) toxic metals/scrap metal,
organic wastes, other wastes, paint wastes, polychlorinated biphenyls (PCBs),
pesticides, photochemical wastes, reactives, refrigerants, sludges/solids, soil, solder
dross, solvents/spent solvents, spent activated carbon, spent sorbents, still bottom
wastes, used oil/waste oil/oily wastes, waste acids/waste caustics, and wastewaters.

Hazardous Waste Regulatory Analysis Articles

Polychlorinated Biphenyls

PCB Regulations Under Review
On April 7, 2010 (75   FR   17645), EPA announced that it is evaluating the current Toxic
Substances Control Act (TSCA) regulations for polychlorinated biphenyls (PCBs). EPA
believes that, as PCB equipment (e.g., transformers that contain PCB dielectric fluid)
age, it is more likely that the equipment may leak and release PCBs into the
environment. Therefore, the agency is reassessing the existing PCB use authorizations
and distribution in commerce regulations to determine whether more protective
measures are needed. In an advance notice of proposed rulemaking (ANPRM), the
agency requested public comment on the TSCA requirements for the use and
distribution in commerce of certain classes of PCBs and PCB items, including: 1) the
use, distribution in commerce, marking, and storage for reuse of liquid PCBs in electric
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and non-electric equipment; 2) use of the 50 parts per million level for excluded PCB
products; 3) use of non-liquid PCBs; 4) use and distribution in commerce of PCBs in
porous surfaces; and 5) marking of PCB articles in use.

Business and the Environment

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

Focus Report
•    Whole Foods Market Serves Up EPA’s Green Chill

Perspectives
•    Looking Under the Hood at Toyota — What Went Wrong?

Corporate Reporting
•    S&P100 Companies Show Improvement
•    BSR Releases Reporting Guidelines

Corporate Initiatives
•    BP Named Greenest Oil Company
•    Saudi Arabia Furthers Environmental Goals
•    Wyoming Taxes the Wind

Product Stewardship and Takeback
•    BioCor LLC Builds Muscle in Lactic Acid Recycling
•    PET Project Breakthrough

ISO Update
•    ISO 26000 Moves Forward

Climate Change Update
•    Arctic Sea Ice More Thin Than Thick
•    Warming Changes Tundra
•    Carbon Calculator Like No Other