Environmental Compliance Update – March 2011

Additions to the Environmental Compliance Portfolio

During February 2011, 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 2011 additions to the Air Quality Compliance module included:

  • Eleven 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 following practice tools were updated through February 28, 2011:

—Air Quality Regulation Changes Smart Chart, and
—Federal Greenhouse Gas Reporting Smart Chart.
To access the practice tools, go to Environmental Compliance > Practice Tools > Environmental Compliance.

  • Volume 21, 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 >.

HOT TOPICS include:

  • Reporting Inputs to Greenhouse Gas Emission Calculations DeferredOn December 27, 2010 (75 FR 81338–81347), EPA deferred until August 31, 2011 the reporting deadline for data elements that are inputs to emission calculations used by direct emitters of greenhouse gases. The interim final rule will provide time for the agency to consider comments on a related December 27, 2010 proposed rule (75 FR 81350–81363). The proposed rule would defer reporting of inputs to emission equations used by direct emitters until March 31, 2014. The interim final rule and proposed rule to defer reporting inputs to emission equations have been issued in response to comments stating that the release of such information could be damaging to businesses. Note that maintaining records of the inputs used in emission calculations is still required, even though reporting of those inputs has been deferred. See EPA Defers Reporting of Inputs to Greenhouse Gas Emission Calculations.

Hazardous Waste Compliance Materials and Tools

February 2011 additions to the Hazardous Waste Compliance module included:

  • Four new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Volume 29, 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 >.

HOT TOPICS include:

  • EPA to Deny Review of Exclusion for Oil-Bearing Secondary Materials—On January 2, 2008 (73 FR 57), EPA issued a final rule that expanded the RCRA conditional exclusion from the definition of solid waste for oil-bearing hazardous secondary materials generated by the petroleum refining industry. The expanded exclusion applies to these materials when they are processed in a gasification system at a petroleum refinery to produce synthesis gas. The exclusion applies if 1) the process meets the definition for “gasification,” and 2) the materials are not placed on the land or speculatively accumulated prior to gasification. On April 1, 2008, EPA received a RCRA Section 7004(a) petition from the Sierra Club and the Louisiana Environmental Action Network requesting reconsideration of the January 2, 2008 final rule. EPA announced that it had denied the petition on November 21, 2008 (73 FR 70598), but failed to comply with the notice and comment regulatory requirements of 40 CFR §260.20. Therefore, on January 28, 2011 (76 FR 5107–5110), EPA provided notice of, and solicited public comment on, the agency’s tentative determination to deny the petition. See EPA Proposes Denying Petition for Reconsideration of 2008 Gasification Exclusion Rule.

Wastewater and Water Quality Compliance Materials and Tools

February 2011 additions to the Wastewater and Water Quality Compliance module included:

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

HOT TOPICS include:

  • EPA Disapproves Permit for Mountaintop Coal Mining Operation—On January 19, 2011 (76 FR 3126–3128), EPA announced its final determination that discharge of dredged or fill material associated with the construction and operation of the Spruce No. 1 Mine in Logan County, West Virginia would result in unacceptable adverse effects on wildlife. The agency’s determination prohibits the use of Pigeonroost Branch, Oldhouse Branch, and certain tributaries to those waters to receive dredged and/or fill material in connection with the construction or operation of the Spruce No. 1 Surface Mine. The Spruce No. 1 Mine is one of the largest mountaintop mining projects ever authorized in Appalachia, and includes six valley fills. EPA has only rarely used its CWA Section 404(c) authority to veto designation of areas to receive dredged and/or fill material. In fact, the agency has used its Section 404(c) veto authority only 12 times since 1972, and only one other time in the last 20 years. The agency has never before used its veto authority for a project that is already permitted. See EPA Vetoes Corps of Engineers Permit for Mountaintop Coal Mining Operation.

Business and the Environment

The February 2011 issue of the Business and the Environment newsletter included 11 stories on sustainable development and 5 stories on recent climate change developments.

HOT TOPICS include:

  • Shareholder Proposals Focus on Environmental and Energy Issues—Recent catastrophic events have allowed investors to zero in on corporate boardrooms, specifically at US energy companies, with respect to the direction the companies are taking regarding corporate governance and the environment. In the past year, frequent updates about BP’s historic spill in the Gulf of Mexico and Massey Energy’s coal mining disaster in West Virginia have been the rallying cry for investor campaigns to make oil, gas, and other energy companies disclose far more information about their environmental and safety risks. According to Ceres, more than 100 climate- and energy-focused shareholder proposals were put before the shareholders of 88 U.S. and Canadian companies in 2010, almost 50% more than in 2009. See Environmental Risk Proposals Push Forward.

 

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 February 2011

Air Quality Compliance Materials and Tools

Air Quality Regulatory Analysis Articles

NESHAP/MACT

Revisions Proposed to Wood Furniture Manufacturing and Shipbuilding and Ship Repair MACT Standards
On December 21, 2010 (75 FR 80220–80258), EPA proposed to revise the maximum achievable control technology (MACT) standards for wood furniture manufacturing and the MACT for shipbuilding and ship repair to address the agency’s residual risk and technology review of the standards. The proposed rule would add a formaldehyde usage limit to the wood furniture manufacturing MACT. In addition, wood furniture manufacturing facilities would be prohibited from using conventional spray guns in surface coating operations. The proposed rule would also revise both the wood furniture manufacturing MACT and the shipbuilding and ship repair MACT to eliminate provisions that provide an exemption from emission standards during periods of start-up, shutdown, and malfunction. EPA indicates that 406 facilities are subject to the wood furniture manufacturing MACT, and 85 facilities are subject to the shipbuilding and ship repair MACT.

EPA Clarifies Provisions in Portland Cement MACT
In a January 18, 2011 direct final rule (76 FR 2832–2837), EPA revised the maximum achievable control technology (MACT) standards for portland cement manufacturing to clarify compliance dates and emission limits, and to correct typographical errors in the regulatory text. The direct final rule also adds a reference that was inadvertently omitted. The agency indicates that, due to changes made to the MACT standards on September 9, 2010 (75 FR 54970), the compliance dates for certain provisions are unclear. In addition, the September 9, 2010 regulatory changes left uncertainty regarding whether emission limits that were replaced continue to apply.

NSPS/Emission Guidelines

Particulate Matter and Opacity Monitoring Requirements in Boiler NSPS Revised
In a January 20, 2011 direct final rule (76 FR 3517–3524), EPA revised the new source performance standards (NSPS) for electric utility steam generating units, and the NSPS for industrial, commercial, and institutional steam generating units. The direct final rule amends the testing requirements for owners/operators of steam generating units that elect to monitor particulate matter emissions using a continuous emissions monitoring system (CEMS). In addition, the direct final rule amends the opacity monitoring requirements for owners/operators who are subject to an opacity standard, but are exempt from the requirement to install a continuous opacity monitoring system (COMS). Finally, the January 20, 2011 rulemaking corrects a number of editorial errors in the boiler NSPS.

PSD/NSR Permitting

Particulate Matter Sampling Methods Revised to Address Condensable Emissions
On December 21, 2010 (75 FR 80118–80172), EPA revised the agency’s standard sampling methods to better address condensable particulate matter. The changes to EPA Method 201A add a particle-sizing device to allow for sampling of PM-2.5 (particulate matter with an aerodynamic diameter less than or equal to 2.5 microns). The revisions to Method 202 change the sample collection and recovery procedures to reduce the formation of reaction artifacts that could lead to inaccurate measurements of condensable particulate matter. The December 21, 2010 final rule also announces EPA’s decision not to extend the transition period for the inclusion of condensable particulate matter in the new source review (NSR) program. The transition period ended January 1, 2011.

Multiple Actions Issued on Permitting of Greenhouse Gas Emission Sources
On December 29 and 30, 2010, EPA issued a series of rules to: 1) limit prevention of significant deterioration (PSD) and CAA Title V permitting requirements to only those sources that have emissions above levels established in the agency’s greenhouse gas tailoring rule, and 2) ensure that a permitting agency (i.e., EPA) has authority to issue PSD permits to industrial facilities that cover greenhouse gas emissions. Two of the final rules revise the agency’s previous PSD and Title V program approvals to ensure that smaller emission sources will not be required to undergo PSD or Title V permitting due to their greenhouse gas emissions. Another set of rulemakings provides EPA with authority to issue PSD permits for greenhouse gas emission sources. A final set of rules revises the agency’s prior approval of the PSD permitting program in Texas so that EPA, rather than the state, can issue PSD permits covering greenhouse gas emissions.

State Implementation Plans

New Models and Guidance Available for Transportation Conformity Hot-Spot Analyses
Under CAA Section 176(c), transportation planning and permitting entities are required to ensure that federally supported highway and transit activities are consistent with (i.e., “conform to”) the purpose of a state implementation plan (SIP). Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of national ambient air quality standards (NAAQS). On December 20, 2010 (75 FR 79370–79374), EPA announced its approval of the latest version of two models for quantitative hot-spot analyses for transportation conformity purposes. The December 20, 2010 notice also announces the availability of two new guidance documents for completing quantitative transportation conformity hot-spot analyses.

Proposed Rule Would Reverse Policy on Ozone RFP Credit for Out-of-Area Emission Reductions
On December 22, 2010 (75 FR 80420–80425), EPA proposed to reverse its previous interpretation of reasonable further progress (RFP) requirements, which would mean that states could no longer count certain emission reductions occurring outside of an ozone nonattainment area toward RFP obligations. When an area has been designated nonattainment, among other things, the state must provide an attainment plan that demonstrates reasonable progress toward meeting the NAAQS. The proposed rule would reverse EPA policy established in an August 11, 2009 (74 FR 40074) rulemaking allowing a state to claim RFP credit toward the eight-hour ozone NAAQS for emission reductions that occur outside of a nonattainment area.

EPA Issues Revised Ambient Air Quality Monitoring Requirements for Lead
On December 27, 2010 (75 FR 81126–81138), EPA revised the ambient air quality monitoring requirements for lead to require state and local monitoring agencies to locate monitors near industrial sources that emit 0.50 tons per year (tpy) or more of lead, rather than 1.0 tpy, as is currently required. In addition, monitoring for lead is required for at least one year in the vicinity of 15 airports specified in the final rule. The airport monitoring is intended to provide data on the impact of lead emissions from general aviation airports, and whether the threshold level at which monitoring is required near airports should also be lowered to 0.50 tpy. EPA estimates that the new requirements will require state and local monitoring agencies to operate 111 new, source-oriented lead monitoring sites.

Other Issues

Changes to Renewable Fuel Program Regulations Issued
On December 21, 2010 (75 FR 79964–79978), EPA finalized corrections to the agency’s renewable fuel standard regulations. In a May 10, 2010 direct final rule (75 FR 26026), the agency made a number of corrections, clarifications, and modifications to the renewable fuel program regulations. On June 30, 2010 (75 FR 37733), EPA withdrew selected changes included in the May 10, 2010 rulemaking due to the receipt of adverse comments. The December 21, 2010 final rule addresses the comments received, and takes final action on the provisions that had been withdrawn.

EPA Defers Reporting of Inputs to Greenhouse Gas Emission Calculations
On December 27, 2010 (75 FR 81338–81347), EPA deferred until August 31, 2011 the reporting deadline for data elements that are inputs to emission calculations used by direct emitters of greenhouse gases. The interim final rule will provide time for the agency to consider comments on a related December 27, 2010 proposed rule (75 FR 81350–81363). The proposed rule would defer reporting of inputs to emission equations used by direct emitters until March 31, 2014. The interim final rule and proposed rule to defer reporting inputs to emission equations have been issued in response to comments stating that the release of such information could be damaging to businesses. Note that maintaining records of the inputs used in emission calculations is still required, even though reporting of those inputs has been deferred.

Animal Feeding Operations Asked to Submit Emission and Process Data
On January 31, 2005 (70 FR 4958), EPA announced a voluntary consent agreement for animal feeding operations (AFOs). The air compliance agreement was designed to gather information on air emissions across the AFO industry. Under the agreement, AFOs received limited conditional covenants not to sue and liability releases from the agency. In exchange, participating AFOs agreed to pay a civil penalty and share in the funding of the national air emission monitoring study for AFOs. On January 19, 2011 (76 FR 3060–3062), EPA solicited additional emission and process data that are pertinent to the development of emission estimating methodologies for AFOs. The January 19, 2011 notice specifically requests emission and process data for broiler, egg-layer, swine, dairy, beef, and turkey AFOs.

Reviews of Court Decisions and Consent Decrees

Conformity Determination Not Required for Natural Gas Eventually Supplied By Pipeline Project
In a September 9, 2010 ruling, the U.S. Court of Appeals for the Ninth Circuit ruled that a full CAA conformity determination was not required for the eventual burning of natural gas supplied by a pipeline project (South Coast Air Quality Management District v. Federal Energy Regulatory Commission, No. 08-72265, 9th Cir. Sept. 9, 2010). In the case, the South Coast Air Quality Management District argued that the Federal Energy Regulatory Commission (FERC) should have included in its environmental impact statement (EIS) an assessment, as well as plans for mitigation, of the emissions resulting from burning the natural gas that would eventually be supplied by a pipeline project. The FERC EIS only addressed the effects of the construction and operation of the pipeline itself, not the product eventually delivered. The Ninth Circuit Court concluded that the FERC’s EIS was correct, and did not need to include an assessment of the impacts of eventually burning the natural gas supplied by the pipeline.

Local Rule Limiting Train Emissions Is Pre-Empted By Federal Law
In a September 15, 2010 decision, the U.S. Court of Appeals for the Ninth Circuit upheld a district court ruling that local regulations limiting emissions from idling trains in California are preempted by federal law (Association of American Railroads v. South Coast Air Quality Management District, No. 07-55804 [9th Cir. Sept. 15, 2010]). Federal law preempts local regulations, unless the local regulations do not unreasonably burden railroad activity. As the local rules in question only applied to railroad activity, the Ninth Circuit Court concluded that the local regulations were preempted, and therefore affirmed the district court ruling.

MACT Determination Required for Construction of Texas Power Plant, in Spite of Delisting Rule Gap
In a November 23, 2010 decision, the U.S. Court of Appeals for the Fifth Circuit reversed a district court determination, and ruled that a case-by-case maximum achievable control technology (MACT) determination was required for a Texas power plant (Sierra Club v. Sandy Creek Energy L.P., No. 09-51079 [5th Cir. Nov. 23, 2010]). The Texas permitting agency had approved the construction of the power plant modification without requiring a case-by-case MACT analysis because, at the time of approval, EPA had issued a regulation that specifically excluded power plants from the MACT source category list. After the state agency’s decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA’s action that had removed coal-fired power plants from the MACT source category list. Therefore, the Fifth Circuit Court found that a case-by-case MACT determination was required, in spite of the gap in applicability, and remanded the case to the district court for further proceedings.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

Air Emissions

Animal Feeding Operations Asked to Submit Emission and Process Data
On January 31, 2005 (70 FR 4958), EPA announced a voluntary consent agreement for animal feeding operations (AFOs). The air compliance agreement was designed to gather information on air emissions across the AFO industry. Under the agreement, AFOs received limited conditional covenants not to sue and liability releases from the agency. In exchange, participating AFOs agreed to pay a civil penalty and share in the funding of the national air emission monitoring study for AFOs. On January 19, 2011 (76 FR 3060–3062), EPA solicited additional emission and process data that are pertinent to the development of emission estimating methodologies for AFOs. The January 19, 2011 notice specifically requests emission and process data for broiler, egg-layer, swine, dairy, beef, and turkey AFOs.

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

Facilities Requested to Submit TRI Reports Online
Under EPCRA Section 313, regulated 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 January 14, 2011 (76 FR 2677–2679), EPA “strongly recommends” that facilities submit their TRI data using the Toxics Release Inventory-Made Easy Web application (TRI-MEweb). The agency is making the request because it believes the use of TRI-MEweb will 1) expedite the processing of TRI reports, 2) improve data accuracy, and 3) reduce the amount of time it takes EPA to process and make the data available to the public.

Enforcement

EPA Issues Its Enforcement and Compliance Results for Fiscal Year 2010
On December 2, 2010, EPA released data on its enforcement and compliance assurance results for fiscal year (FY) 2010. As a result of the agency’s actions during FY 2010, companies will be required to: 1) treat, minimize, or properly dispose 11.8 billion pounds of hazardous waste, the largest amount of hazardous waste reductions achieved since the agency began collecting these data in FY 2008; 2) invest an estimated $12.1 billion in actions and equipment to reduce and protect the environment (injunctive relief), and in projects that benefit the environment and public health (supplemental environmental projects [SEPs]), the largest amount ever assessed; and 3) reduce pollution by an estimated 1.5 billion pounds per year, the third highest amount since the agency began measuring pollutant reductions from enforcement cases. In addition, EPA initiated 346 new environmental crime cases in FY 2010, the second largest number of new criminal case initiations in five years. During FY 2010, the agency also charged more than 289 defendants with environmental crimes, the largest number of defendants charged in five years.

Exclusions/Exemptions

EPA Proposes Denying Petition for Reconsideration of 2008 Gasification Exclusion Rule
On January 2, 2008 (73 FR 57), EPA issued a final rule that expanded the RCRA conditional exclusion from the definition of solid waste for oil-bearing hazardous secondary materials generated by the petroleum refining industry. The expanded exclusion applies to these materials when they are processed in a gasification system at a petroleum refinery to produce synthesis gas. The exclusion applies if 1) the process meets the definition for “gasification,” and 2) the materials are not placed on the land or speculatively accumulated prior to gasification. On April 1, 2008, EPA received a RCRA Section 7004(a) petition from the Sierra Club and the Louisiana Environmental Action Network requesting reconsideration of the January 2, 2008 final rule. EPA announced that it had denied the petition on November 21, 2008 (73 FR 70598), but failed to comply with the notice and comment regulatory requirements of 40 CFR §260.20. Therefore, on January 28, 2011 (76 FR 5107–5110), EPA provided notice of, and solicited public comment on, the agency’s tentative determination to deny the petition.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Issues

 

Wastewater

EPA Vetoes Corps of Engineers Permit for Mountaintop Coal Mining Operation
On January 19, 2011 (76 FR 3126–3128), EPA announced its final determination that discharge of dredged or fill material associated with the construction and operation of the Spruce No. 1 Mine in Logan County, West Virginia would result in unacceptable adverse effects on wildlife. The agency’s determination prohibits the use of Pigeonroost Branch, Oldhouse Branch, and certain tributaries to those waters to receive dredged and/or fill material in connection with the construction or operation of the Spruce No. 1 Surface Mine. The Spruce No. 1 Mine is one of the largest mountaintop mining projects ever authorized in Appalachia, and includes six valley fills. EPA has only rarely used its CWA Section 404(c) authority to veto designation of areas to receive dredged and/or fill material. In fact, the agency has used its Section 404(c) veto authority only 12 times since 1972, and only one other time in the last 20 years. The agency has never before used its veto authority for a project that is already permitted.

Water Quality

Underground Injection Control Requirements Issued for Geologic Sequestration of CO2
On December 10, 2010 (75 FR 77230–77303), EPA issued requirements under the Safe Drinking Water Act (SDWA) for the underground injection of carbon dioxide (CO2) for the purposes of geologic sequestration. Geologic sequestration of CO2 is one option being developed to reduce CO2 emissions and help mitigate climate change. The final rule establishes a new Class VI category of underground injection well. The final rule also sets minimum technical criteria for geologic site characterization, fluid movement, area of review and corrective action, well construction, operation, mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure.

Court Decisions

The following court decisions were added in February 2011:

  • Friends of the Earth v. Galston Copper Recycling Corp., No. 06-1714 (4th Cir. Jan. 5, 2011)—Fourth Circuit Court reverses penalties imposed for violations that were not addressed in plaintiff’s notice of intent to sue, and reverses penalties for violations that occurred before the complaint was filed.

 

  • National Mining Association v. Jackson, No. 10-1120 (D.D.C. Jan. 14, 2011)—District court rules that EPA’s enhanced coordination process and detailed guidance for Clean Water Act permitting of coal mines may be challenged as “final” agency actions because they alter prior permitting processes.
  • Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, No. 09-2239 (4th Cir. Jan. 25, 2011)—Appeals court remands Corps of Engineers’ decision that wetlands at issue have a “significant nexus” to navigable waters.

 

News

Business and the Environment

The February 2011 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:

Focus Report

  • Environmental Risk Proposals Push Forward

Perspectives

  • Palm Oil Controversy

Corporate Reporting

  • Smaller Companies Lag in Greenhouse Gas Reporting
  • Reporting By Malaysian Companies Improves

Corporate Initiatives

  • Fuel, Shape Define Innovative Tanker
  • Woodstoves Get an Upgrade Courtesy of Printer
  • Conferences Worth Noting
  • Company Aims to Reduce Solar Cost By 40%

Product Stewardship and Takeback

  • Nanoparticles Build Up in Food Chain
  • “Paper or Plastic” No Longer a Choice for Italian Shoppers

ISO Update

  • ISO 26000, Part 2

Climate Change Update

  • US EPA Proposes New Greenhouse Gas Regulations
  • Shipshape: Evaluating Vessels on Carbon Emissions?
  • CO2 Emissions Dip in 2009, Rise In 2010
  • Global Food Prices Hit Record High
  • Record Breaking Temperatures Continue