Environmental Compliance Update – Marach 2010

Additions to the Environmental Compliance Portfolio


During February 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


February 2010 additions to the Air Quality Compliance module included:
• Three new regulatory analysis articles were added, along with supporting Federal Register documents.
• Four new case summaries were added, along with associated court decisions.
• Volume 20, Issue 2 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 >.
• The directory of state and local air pollution control agencies was updated. To access the directory, go to Environmental Compliance > Indexes and Tables > Directory of State and Local Air Pollution Control Agencies >.


HOT TOPICS include:


New Ozone Air Quality Standard Proposed—On January 19, 2010 (75 FR 2938–3052), EPA proposed to replace the national ambient air quality standards (NAAQS) for ozone that were issued in 2008 with more stringent standards. Specifically, the proposed rule would replace the 2008 primary ozone NAAQS of 0.075 ppm with a new eight-hour standard in the range of 0.060–0.070 ppm. The proposed rule would also establish a new cumulative, seasonal secondary ozone NAAQS in the range of 7–15 ppm-hours. Secondary NAAQS are intended to protect non-health attributes, including public welfare, economic interests, vegetation, visibility, and other factors. See EPA Proposes New National Ambient Air Quality Standards for Ozone.

Hazardous Waste Compliance Materials and Tools


February 2010 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.
• Volume 28, Issue 1 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 >.
• The directory of state hazardous waste agencies was updated. To access the directory, go to Environmental Compliance > Indexes and Tables > Directory of State Hazardous Waste Agencies >.


HOT TOPICS include:


CERCLA Financial Responsibility Requirements—Under CERCLA Section 108(b), EPA must promulgate regulations that require identified classes of facilities to establish and maintain evidence of financial responsibility. Section 108(b) also requires the agency to publish a priority notice specifying the classes of facilities for which financial assurance requirements will first be developed. On January 6, 2010 (75 FR 816–832), EPA issued an advance notice of proposed rulemaking that identifies the following additional industries for which CERCLA financial responsibility requirements will be developed: 1) chemical manufacturing; 2) petroleum and coal products manufacturing; and 3) electric power generation, transmission, and distribution. The agency also plans to further investigate the following industries for possible development of CERCLA financial responsibility requirements: 1) waste management and remediation services, 2) wood product manufacturing, 3) fabricated metal product manufacturing, and 4) electronics and electrical equipment manufacturing. In addition, EPA intends to further evaluate facilities engaged in the recycling of materials containing CERCLA hazardous substances. If finalized, the CERCLA financial responsibility requirements would be promulgated in 40 CFR Part 320. See EPA Identifies Additional Industries for CERCLA Financial Responsibility Requirements.

Wastewater and Water Quality Compliance Materials and Tools


February 2010 additions to the Wastewater and Water Quality Compliance module included:
• Two new regulatory analysis articles were added, along with supporting Federal Register documents.
• One new court decision was added.
• The directory of state water quality agencies was updated. To access the directory, go to Environmental Compliance > Indexes and Tables > Directory of State and Local Water Quality Agencies >.


HOT TOPICS include:


Construction Industry General Storm Water Permit Extended—On January 28, 2010 (75 FR 4554–4557), EPA modified the 2008 National Pollutant Discharge Elimination System (NPDES) general permit for storm water discharges associated with construction activity. The NPDES general permit, referred to as the 2008 construction general permit, applies to new dischargers engaged in large and small construction activities that are located in areas where EPA is the NPDES permitting authority, except those located in EPA Region 4. The construction general permit requires operators of construction sites to implement storm water controls and develop storm water pollution prevention plans to prevent sediment and other pollutants associated with construction sites from being discharged in storm water runoff. The 2008 construction general permit was originally issued for a period not to exceed two years. The January 28, 2010 final rule extends the period of permit coverage by one year so that it expires June 30, 2011, instead of June 30, 2010. See Expiration Date of Construction Industry General Storm Water Permit Extended to June 30, 2011.

Business and the Environment


The February 2010 issue of the Business and the Environment newsletter included nine stories on sustainable development and two stories on recent climate change developments.


HOT TOPICS include:


Sustainability and Walmart’s Suppliers—According to a blog post by Catherine Greener and Marc Major, the founders of Cleargreen Advisors (www.cleargreenadvisors.com), there are 10 “top sustainability myths” in the supplier community. The authors base their findings on several years of working with Walmart to help the retailer develop and usher in its own sustainability strategy, including all of the logistical issues related to introducing sustainability within the core business model. See Walmart Suppliers’ Top 10 Sustainability Myths Examined.

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


Analysis added to the Environmental Compliance Portfolio in February 2010

Air Quality Compliance Materials and Tools
Air Quality Regulatory Analysis Articles

NAAQS

EPA Proposes New National Ambient Air Quality Standards for Ozone
On January 19, 2010 (75 FR 2938–3052), EPA proposed to replace the national ambient air quality standards (NAAQS) for ozone that were issued in 2008 with more stringent standards. Specifically, the proposed rule would replace the 2008 primary ozone NAAQS of 0.075 ppm with a new eight-hour standard in the range of 0.060–0.070 ppm. The proposed rule would also establish a new cumulative, seasonal secondary ozone NAAQS in the range of 7–15 ppm-hours. Secondary NAAQS are intended to protect non-health attributes, including public welfare, economic interests, vegetation, visibility, and other factors.

PSD/NSR Permitting

EPA Proposes to End PM-10 Surrogate Policy
On June 1, 2009 (74 FR 26098), EPA stayed the effectiveness of a “grandfathering” provision in the federal prevention of significant deterioration (PSD) regulations for PM 2.5 (particulate matter with an aerodynamic diameter =2.5 microns). The grandfathering provision allows permitting agencies to review PSD permit applications received before July 15, 2008 according to the agency’s 1997 policy of satisfying PSD requirements for PM-10 (particulate matter with an aerodynamic diameter =10 microns) as a surrogate for meeting new requirements for PM-2.5. On September 22, 2009 (74 FR 48153), EPA extended the administrative stay of the grandfathering provision until September 22, 2010. On February 11, 2010 (75 FR 6827–6836), EPA proposed to repeal the grandfathering provision for PM-2.5. In addition, the proposed rule would end early the PM-10 surrogate policy in states that have an approved PSD program in their state implementation plan (SIP). If the grandfathering provision is repealed, any PSD permit applications covered by the grandfathering provision that have not yet been approved and issued a final and effective PSD permit would need to be evaluated to demonstrate compliance with the PSD requirements for PM-2.5. These requirements include showing that the proposed source will not cause or contribute to a violation of the NAAQS for PM-2.5, and establishing emission limitations representing best available control technology (BACT) for PM-2.5.

Reconsideration of NSR Provisions Addressing Fugitive Emissions to Take Another 18 Months
On September 30, 2009 (74 FR 50115), EPA announced that it had granted a petition for reconsideration of a previous rulemaking that revised how fugitive emissions are considered when deciding whether a proposed physical or operational change qualifies as a “major modification.” Major modifications to existing major stationary sources are required to undergo new source review (NSR). Examples of fugitive emissions include windblown dust from surface mines and volatile organic compounds (VOCs) emitted from leaking valves and fittings at petroleum refineries. The September 30, 2009 final rule also temporarily stayed the effectiveness of a number of NSR and prevention of significant deterioration (PSD) regulatory provisions addressing fugitive emissions. On February 11, 2010 (75 FR 6823–6827), EPA proposed to extend the stay of the fugitive emission provisions in 40 CFR Parts 51 and 52 indefinitely.


Reviews of Court Decisions and Consent Decrees

Power Company to Spend More Than $500 Million in Settling Alleged PSD Violations
Under the terms of a proposed consent decree lodged January 25, 2010 in the U.S. District Court for the District of Kansas, Westar Energy will pay a $3 million civil penalty to resolve alleged violations of prevention of significant deterioration (PSD) permitting requirements at the company’s Jeffrey Energy Center (United States v. Westar Energy, Inc., Civil Action No. 2:09-CV-2059). The company will also spend $6 million on supplemental environmental projects (SEPs). According to EPA, the pollution control equipment upgrades that the company will undertake to reduce sulfur dioxide (SO2), nitrogen oxides (NOx), and particulate matter emissions will cost approximately $500 million. The pollution control equipment upgrades are expected to reduce SO2 emissions by about 60,000 tons per year (tpy), and NOx emissions by 18,600 tpy.

Glass Container Manufacturer to Spend $112 Million on Emission Controls
Under the terms of a proposed consent decree lodged January 21, 2010 in the U.S. District Court for the Western District of Washington, Saint-Gobain Containers, Inc. will pay a $2.25 million civil penalty in resolving alleged prevention of significant deterioration (PSD) and nonattainment new source review (NSR) violations at 15 of the company’s container manufacturing facilities across the United States (United States v. Saint-Gobain Containers, Inc., Civil Action No. 2:10-CV-00121). In addition, Saint-Gobain will install emission controls on 29 glass furnaces at the facilities involved in the settlement. The estimated capital cost of the emission control projects is at least $112 million. EPA has selected glass manufacturing facilities, including glass container manufacturing plants like Saint-Gobain’s, as a national NSR enforcement priority.

Federal Appeals Court Rejects Challenge to Greenhouse Gas Nuisance Suit
In an October 22, 2009 decision, the U.S. Court of Appeals for the Fifth Circuit ruled that a greenhouse gas emissions nuisance suit could proceed (Comer v. Murphy Oil USA, 585 F.3d 855 [5th Cir. 2009]). The federal appeals court held that claims can be pursued asserting that greenhouse gas emissions contributed to global warming and, as a result, added to the damages caused by Hurricane Katrina. The ruling follows a September 21, 2009 decision by the U.S. Court of Appeals for the Second Circuit holding that six power companies could be sued under the federal common law of public nuisance based on the assertion that carbon dioxide (CO2) emissions from their power plants contribute to global warming (Connecticut v. American Electric Power, 582 F.3d 309 [2nd Cir. 2009]).

District Court Rules That Each Day a Facility Operates Is a Discrete PSD and BACT Violation
In a September 30, 2009 decision, the U.S. District Court for the District of Oregon ruled that each day a facility operates without a prevention of significant deterioration (PSD) permit and best available control technology (BACT) constitutes a discrete violation (Sierra Club v. Portland General Electric Co., No. 08-1136-HA [D. Or. Sept. 30, 2009). In the case, the Sierra Club argued that the company’s failure to obtain a PSD permit, or to use BACT, amounted to ongoing violations. In other words, the alleged violations were a series of discrete violations occurring on a daily basis. The district court agreed, finding that the alleged failure to obtain a PSD permit was not barred by the statute of limitations.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

CERCLA

EPA Identifies Additional Industries for CERCLA Financial Responsibility Requirements
Under CERCLA Section 108(b), EPA must promulgate regulations that require identified classes of facilities to establish and maintain evidence of financial responsibility. Section 108(b) also requires the agency to publish a priority notice specifying the classes of facilities for which financial assurance requirements will first be developed. On January 6, 2010 (75 FR 816–832), EPA issued an advance notice of proposed rulemaking that identifies the following additional industries for which CERCLA financial responsibility requirements will be developed: 1) chemical manufacturing; 2) petroleum and coal products manufacturing; and 3) electric power generation, transmission, and distribution. The agency also plans to further investigate the following industries for possible development of CERCLA financial responsibility requirements: 1) waste management and remediation services, 2) wood product manufacturing, 3) fabricated metal product manufacturing, and 4) electronics and electrical equipment manufacturing. In addition, EPA intends to further evaluate facilities engaged in the recycling of materials containing CERCLA hazardous substances. If finalized, the CERCLA financial responsibility requirements would be promulgated in 40 CFR Part 320.

RCRA Programs

Revisions to RCRA Import and Export Provisions Finalized
On January 8, 2010 (75 FR 1236–1262), EPA finalized revisions to the RCRA requirements that address the import and export of hazardous wastes. Specifically, the final rule amends the RCRA regulations applicable to: 1) transboundary movements of hazardous waste among countries that belong to the Organization for Economic Cooperation and Development, 2) spent lead-acid batteries that are exported to foreign countries for reclamation, and 3) exception report requirements for exports.
Reviews of Court Decisions and Consent Decrees

Company Can Pierce Its Own Corporate Veil in CERCLA Liability Case
On December 10, 2009, the U.S. Court of Appeals for the Second Circuit affirmed the judgment and order of a district court by confirming that a corporation’s piercing of its own corporate veil was justified in a CERCLA liability case (Rochester Gas & Electric Corporation v. GPU, Inc., No. 09-0482-cv [2nd Cir. Dec. 10, 2009]). In the case, a company that now is wholly distinct from its parent corporation had, at one point, been dominated by that parent corporation. The appeals court allowed the company to pierce its own corporate veil in order to pass on CERCLA liability to the parent corporation. The appeals court found that preventing the company from piercing its own corporate veil would be directly counter to CERCLA’s goals of encouraging hazardous waste site cleanup and placing the cost of such cleanup on those responsible for the contamination.

Appeals Court Upholds $3 Million Judgment Against Raytheon for
Contamination at Kansas Site
In a December 29, 2009 decision, the U.S. Court of Appeals for the Tenth Circuit affirmed a district court’s decision that Raytheon Aircraft Company is solely liable for contamination at an airport in Herington, Kansas (Raytheon Aircraft Co. v. United States, No. 08-3237 [10th Cir. Dec. 29, 2009]). The appeals court found that Raytheon had failed to meet its burden of proof in establishing that the U.S. Army had used trichloroethylene (TCE) at the site during World War II. The court also awarded the United States costs associated with its attempts to list the site on the National Priorities List (NPL). Accordingly, the appeals court affirmed the district court’s ruling that Raytheon must pay more than $3 million for EPA’s response costs at the site.

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

Wastewater

Expiration Date of Construction Industry General Storm Water Permit Extended to June 30, 2011
On January 28, 2010 (75 FR 4554–4557), EPA modified the 2008 National Pollutant Discharge Elimination System (NPDES) general permit for storm water discharges associated with construction activity. The NPDES general permit, referred to as the 2008 construction general permit, applies to new dischargers engaged in large and small construction activities that are located in areas where EPA is the NPDES permitting authority, except those located in EPA Region 4. The construction general permit requires operators of construction sites to implement storm water controls and develop storm water pollution prevention plans to prevent sediment and other pollutants associated with construction sites from being discharged in storm water runoff. The 2008 construction general permit was originally issued for a period not to exceed two years. The January 28, 2010 final rule extends the period of permit coverage by one year so that it expires June 30, 2011, instead of June 30, 2010.

Water Quality

Numeric Water Quality Standards Proposed for Lakes and Flowing Waters in Florida
On January 26, 2010 (75 FR 4174–4226), EPA proposed numeric nutrient criteria for Florida’s lakes and flowing waters. The proposed numeric nutrient criteria cover four water body types: 1) lakes, 2) streams and rivers, 3) springs and clear streams, and 4) canals in south Florida. Entities discharging nitrogen or phosphorus to lakes and flowing waters of Florida could be indirectly affected by the proposed criteria because water quality standards are used in determining limits included in National Pollutant Discharge Elimination System (NPDES) permits.

Court Decisions

The following court decision was added in February 2010:

• Crandall v. City and County of Denver, No. 08-1197 (10th Cir. Feb. 8, 2010)—On February 8, 2010, the U.S. Court of Appeals for the Tenth Circuit upheld a decision that plaintiffs had not shown aircraft deicing fluid use presents an imminent and substantial endangerment. In addition, the appeals court let stand the district court’s ruling that aircraft deicing use outside the concourse is governed exclusively by the Clean Water Act.

Business and the Environment

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

Focus Report
• Walmart Suppliers’ Top 10 Sustainability Myths Examined

Perspectives
• Build Boston: 25th Anniversary

Corporate Reporting
• Guide Integrates Environmental Issues Into Annual Reports
• AltaTerra Researches Web-Based Sustainability Reporting

Corporate Initiatives
• The College Sustainability Report Card 2010
• Environmental Applications for “Frozen Smoke”
• FT Investing in a Sustainable Future

Product Stewardship and Takeback
• Recycling Plant Opens in New Zealand
• Florida’s Annual Pesticide Stewardship Award

ISO Update
• ISO E14064-1, Conclusion

Climate Change Update
• Climate Science Roundup, Part 2