Environmental Compliance Update – May 2011

Additions to the Environmental Compliance Portfolio

During April 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

April 2011 additions to the Air Quality Compliance module included:

—Air Quality Regulation Changes Smart Chart, and
—Federal Greenhouse Gas Reporting Smart Chart.

  • Volume 21, Issue 3 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 >.

To access the practice tools, go to Environmental Compliance > Practice Tools > Environmental Compliance.

HOT TOPICS include:

  • New Emission Standards for Boilers and IncineratorsOn March 21, 2011, EPA finalized several rules that regulate emissions from boilers and incinerators. Specifically, the final rules regulate emissions from: 1) industrial, commercial, and institutional boilers and process heaters located at major source facilities (76 FR 15608–15702); 2) industrial, commercial, and institutional boilers at area source facilities (76 FR 15554–15606); 3) commercial and industrial solid waste incineration (CISWI) units (76 FR 15704–15790); and 4) sewage sludge incinerators (76 FR 15372–15454). Collectively, the new emission standards are expected to apply to more than 200,000 emission sources. EPA has also completed a final rule identifying which nonhazardous secondary materials are considered solid waste when burned (76 FR 15456–15551; March 21, 2011). Determining whether a material is a solid waste when burned affects whether a given combustion unit is regulated as, for example, an industrial boiler, or as a CISWI unit. The agency has also announced that it intends to reconsider certain aspects of the standards for boilers and process heaters, and those for CISWI units (76 FR 15266–15267). See EPA Issues Final Emission Standards for Industrial Boilers and Incinerators.

Hazardous Waste Compliance Materials and Tools

April 2011 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.
  • A new practice tool, Identifying RCRA Hazardous Wastes, was added. This practice tool guides users through a series of questions to help determine whether a given waste is regulated as a RCRA hazardous waste.

To access the practice tool, go to Environmental Compliance > Practice Tools > Environmental Compliance.

HOT TOPICS include:

  • Rule Identifies Materials Regulated as Solid Wastes When Burned—On March 21, 2011 (76 FR 15456–15551), EPA issued a final rule that identifies which nonhazardous secondary materials are, or are not, solid wastes when burned in combustion units. The RCRA Subtitle D definition will determine whether a combustion unit is required to meet the CAA Section 129 emission standards for solid waste incinerators; or the CAA Section 112 emission standards for commercial, industrial, and institutional boilers. In the rule, the agency indicates that it is articulating a narrow definition, and not making solid waste determinations that cover other possible secondary material end uses. The RCRA rule has been promulgated in the new 40 CFR Part 241—Solid Wastes Used as Fuels or Ingredients in Combustion Units. In addition, EPA issued three related rules on March 21, 2011 that establish CAA emission standards for boilers and incinerators. See Final Rule Identifies Nonhazardous Materials That Are RCRA Solid Wastes When Combusted.

Wastewater and Water Quality Compliance Materials and Tools

April 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.
  • One court decision was added.

HOT TOPICS include:

  • New Monitoring Requirements Proposed for Water Supply System Operators—On March 3, 2011 (76 FR 11713–11737), EPA proposed to require that certain public drinking water systems monitor 28 chemical contaminants and two viruses. SDWA Section 1445(a)(2) requires that, once every five years, EPA must issue a new list of not more than 30 unregulated contaminants to be monitored by public water systems. Under the proposed rule, all large community water systems and non-transient non-community water systems serving more than 10,000 people would be required to conduct monitoring. Monitoring would also be done at a representative sample of community water systems and non-transient, non-community water systems serving 10,000 or fewer people. EPA estimates that the proposed rule would require 4,200 large public water systems (i.e., systems serving more than 10,000 people) to conduct monitoring for the 28 chemical contaminants and two viruses. In addition, monitoring would be conducted for chemical contaminants at 800 small public water systems. See EPA Proposes Monitoring Requirements for 30 Unregulated Contaminants.

Business and the Environment

The April 2011 issue of the Business and the Environment newsletter included 13 stories on sustainable development and three stories on recent climate change developments.

HOT TOPICS include:

  • Evaluating Corporate Sustainability Ratings—The strategic think tank and consultancy SustainAbility has released an evaluation of 21 sustainability ratings groups, and found that most fall short on transparency and lack sufficient quality controls. The evaluation criteria for the report focused on four categories: governance and transparency, quality of inputs, research process, and outputs. Their research also found that, while the ratings systems can be too general in their stated goals, their criteria and scoring metrics can also be too complicated for the task at hand. See Report Sheds Light on Eco Raters.

 

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 April 2011

Air Quality Compliance Materials and Tools

Analysis of Major Hazardous Waste Issues

NESHAP/MACT

EPA Issues Final Emission Standards for Industrial Boilers and Incinerators
On March 21, 2011, EPA finalized several rules that regulate emissions from boilers and incinerators. Specifically, the final rules regulate emissions from: 1) industrial, commercial, and institutional boilers and process heaters located at major source facilities (76 FR 15608–15702); 2) industrial, commercial, and institutional boilers at area source facilities (76 FR 15554–15606); 3) commercial and industrial solid waste incineration (CISWI) units (76 FR 15704–15790); and 4) sewage sludge incinerators (76 FR 15372–15454). Collectively, the new emission standards are expected to apply to more than 200,000 emission sources. EPA has also completed a final rule identifying which nonhazardous secondary materials are considered solid waste when burned (76 FR 15456–15551; March 21, 2011). Determining whether a material is a solid waste when burned affects whether a given combustion unit is regulated as, for example, an industrial boiler, or as a CISWI unit. The agency has also announced that it intends to reconsider certain aspects of the standards for boilers and process heaters, and those for CISWI units (76 FR 15266–15267).

Air Quality Regulatory Analysis Articles

NESHAP/MACT

MACT for Stationary Spark Ignition Reciprocating Internal Combustion Engines Clarified
In a March 9, 2011 direct final rule (76 FR 12863–12873), EPA revised the maximum achievable control technology (MACT) standards for stationary spark ignition reciprocating internal combustion engines (RICE) to clarify the compliance requirements associated with parameter monitoring systems. EPA has determined that certain portions of the operation and maintenance requirements for continuous parameter monitoring systems (CPMS) are unclear. Affected sources have also asked for guidance regarding the requirement to conduct a temperature measurement calibration check. The direct final rule addresses these issues, and makes other clarifications and corrections to the MACT standards for stationary spark ignition RICE.

Title V Permitting Requirement Stayed for Certain Chemical Manufacturing Area Sources
On March 14, 2011 (76 FR 13514–13515), EPA stayed indefinitely the CAA Title V permitting requirement for certain chemical manufacturing process units located at area sources. Area sources are facilities with the potential to emit <10 tons per year (tpy) of any single hazardous air pollutant (HAP), and <25 tpy of any combination of HAPs. Under the emission standards for chemical manufacturing area sources in 40 CFR Part 63, Subpart VVVVVV, any major source that installed a control device on a chemical manufacturing process unit after November 15, 1990 and, as a result, became an area source, is required to obtain a Title V operating permit. All other area sources regulated under the emission standards are exempt from Title V permitting. The March 14, 2011 rulemaking stays indefinitely the Title V permitting requirement for affected sources that became area sources by installing control equipment.

Proposed Rule Would Require Elimination of Mercury Emissions From Chlor-Alkali Plants
On March 14, 2011 (76 FR 13852–13878), EPA proposed to revise the maximum achievable control technology (MACT) standards for mercury cell chlor-alkali plants such that mercury emissions would be prohibited. As a second option, the agency has proposed to require emission control measures that were originally proposed on June 11, 2008 (73 FR 33258). Option 2 would require improvements in work practices to reduce fugitive mercury emissions, and would result in near zero mercury emissions, while still allowing mercury cell facilities to continue to operate. The proposed rule would also revise the MACT standards for mercury cell chlor-alkali plants to eliminate provisions that provide an exemption from emission standards during periods of start-up, shutdown, and malfunction.

PSD/NSR Permitting

EPA Proposes to Defer Permitting Requirements for CO2 Emissions From Bioenergy/Biogenic Sources
On March 21, 2011 (76 FR 15249–15266), EPA proposed to defer prevention of significant deterioration (PSD) and CAA Title V permitting requirements for carbon dioxide (CO2) emissions from bioenergy and other biogenic stationary emission sources. Under the proposed rule, CO2 emissions from bioenergy and other biogenic sources would not be considered when determining whether a stationary source meets PSD and Title V applicability thresholds, including those for applying best available control technology (BACT). The emissions covered under the deferral would include CO2 derived from the combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material. In addition, PSD and Title V permitting would be deferred for CO2 emissions from the combustion of biogas collected from the biological decomposition of waste in landfills, wastewater treatment, or manure management processes. The deferral would apply only to CO2 emissions, and would not affect the consideration of non-greenhouse gas pollutants or other greenhouse gases in PSD and Title V permitting.

Stratospheric Ozone Protection

New ODS Substitute Approved for Use in Motor Vehicle Air Conditioning Systems
In a March 29, 2011 final rule (76 FR 17488–17520), EPA approved an additional ozone-depleting substance (ODS) substitute for use in new passenger car and light-duty truck air conditioning systems. In the final rule, EPA has found hydrofluoroolefin (HFO)-1234yf acceptable, subject to use conditions, as a substitute for chlorofluorocarbon (CFC)-12 in motor vehicle air conditioning systems for new passenger cars and light-duty trucks. HFO-1234yf is a non-ozone-depleting gas, so it does not contribute to stratospheric ozone depletion. Under the final rule, use of HFO-1234yf is subject to use conditions to address the flammability concerns associated with its use.
Other Issues

Deadline for Reporting 2010 Greenhouse Gas Emissions Extended Until September 30, 2011
On March 18, 2011 (76 FR 14812–14818), EPA extended the deadline for reporting greenhouse gas emission data for calendar year 2010 to September 30, 2011. The previous deadline was March 31, 2011. Under the greenhouse gas reporting rule, certain industrial facilities and greenhouse gas suppliers are required to annually report emission information and other data, including information necessary to characterize, quantify, and verify the reported emissions. Extending the deadline for reporting 2010 data provides the agency additional time to refine and test the data reporting system, and provides reporting entities time to become familiar with the electronic reporting tool. The reporting deadline extension does not affect what data must be reported, or the March 31 reporting deadline for future years.

EPA Completes Urban Air Toxics Emission Standards
On March 21, 2011 (76 FR 15308), EPA announced that it had completed emission standards to assure that area sources accounting for 90% of the aggregate emissions of 30 urban hazardous air pollutants (HAPs) are subject to regulation. Under CAA Sections 112(c)(3) and 112(k)(3), the agency is required to promulgate emission standards regulating the emissions of at least 90% of 30 urban HAPs. The agency has also announced that emission standards have been completed to regulate no less than 90% of the aggregate emissions of seven HAPs specified in CAA Section 112(c)(6). The seven HAPs specified in Section 112(c)(6) are: alkylated lead compounds; polycyclic organic matter; hexachlorobenzene; mercury; polychlorinated biphenyls (PCBs); 2,3,7,8-tetrachlorodibenzofuran; and 2,3,7,8-tetrachlorodibenzo-p-dioxin.

Reviews of Court Decisions and Consent Decrees

Environmental Appeals Board Upholds PSD Permit for Hayward, California Power Plant
In a November 18, 2010 decision, EPA’s Environmental Appeals Board (EAB) upheld the final prevention of significant deterioration (PSD) permit for a 600-MW natural gas-fired, combined-cycle power plant in Hayward, California (In re: Russell City Energy Center, LLC, PSD Appeal No. 10-01). The EAB received five separate petitions for review of the final permit issued to Russell City Energy Company, LLC (RCEC) by the Bay Area Air Quality Management District (BAAQMD) on February 3, 2010. Although the petitions for review raised a number of challenges, the EAB determined that the petitioners had not demonstrated that the agency erred in issuing the permit.

Court Dismisses Citizen Suit Seeking to Require Enforcement of PSD Permitting Requirements
On January 24, 2011, the U.S. District Court for the Northern District of California dismissed a citizen suit seeking injunctive relief and civil penalties against the Bay Area Air Quality Management District (BAAQMD) for alleged failures to implement federal prevention of significant deterioration (PSD) regulations (United States v. Pacific Gas & Electric, No. 09-4503 [N.D. Cal. Jan. 24, 2011]). In the case, it was argued that CAA citizen suit provisions allow the local agency to be held liable for its alleged failure to implement specific provisions of the federal PSD requirements. However, the court determined that, because the BAAQMD performs PSD permitting functions through a delegation agreement with EPA, the CAA citizen suit provisions do not allow the local agency to be held liable for failure to implement and enforce federal regulations.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

Air Emissions

Final Rule Identifies Nonhazardous Materials That Are RCRA Solid Wastes When Combusted
On March 21, 2011 (76 FR 15456–15551), EPA issued a final rule that identifies which nonhazardous secondary materials are, or are not, solid wastes when burned in combustion units. The RCRA Subtitle D definition will determine whether a combustion unit is required to meet the CAA Section 129 emission standards for solid waste incinerators; or the CAA Section 112 emission standards for commercial, industrial, and institutional boilers. In the rule, the agency indicates that it is articulating a narrow definition, and is not making solid waste determinations that cover other possible secondary material end uses. The RCRA rule has been promulgated in the new 40 CFR Part 241—Solid Wastes Used as Fuels or Ingredients in Combustion Units. In addition, EPA issued three related rules on March 21, 2011 that establish CAA emission standards for boilers and incinerators.

CERCLA

OIG Issues FY 2010 Superfund Report
Under the Superfund Amendments and Reauthorization Act of 1986, EPA’s Office of Inspector General (OIG) is required to annually audit the Superfund program and report to Congress on the audit results. The results of the fiscal year (FY) 2010 audit were reported to Congress in February 2011 in a report titled Annual Superfund Report to Congress for Fiscal Year 2010 (EPA-350-R-11-001). The report, which summarizes the OIG’s FY 2010 Superfund-related reports, focuses on the hazardous substance Superfund Trust Fund, remedial action decision making, response claims, performance reviews, and investigative activity.

Reviews of Court Decisions and Consent Decrees

Appeals Court Finds EPA Properly Added Utah Magnesium Plant to the NPL
In a January 14, 2011 decision, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of EPA’s listing of a site on the National Priorities List (NPL). In US Magnesium, LLC v. EPA (No. 09-1269 [D.C. Cir., Jan. 14, 2011]), the court ruled that EPA had properly added a Utah magnesium plant to the NPL, despite objections from the facility’s owners.

Owner Could Be Liable Under RCRA for Refusing to Let Prior Owner Remediate Site
In a January 21, 2011 decision, the U.S. District Court for the Central District of Illinois ruled that the current owner of a site with pre-existing contamination could face RCRA liability for not permitting a previous owner access to perform cleanup activities (Carlson v. Ameren Corp., No. 10-01230 [C.D. Ill. Jan. 21, 2011]). The district court found that the current owner could be “contributing” to the hazardous condition of the property by obstructing remediation. Accordingly, the court referred the RCRA citizen suit to the magistrate judge for further proceedings.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Issues

 

Water Quality

EPA Proposes Monitoring Requirements for 30 Unregulated Contaminants
On March 3, 2011 (76 FR 11713–11737), EPA proposed to require that certain public drinking water systems monitor 28 chemical contaminants and two viruses. SDWA Section 1445(a)(2) requires that, once every five years, EPA must issue a new list of not more than 30 unregulated contaminants to be monitored by public water systems. Under the proposed rule, all large community water systems and non-transient non-community water systems serving more than 10,000 people would be required to conduct monitoring. Monitoring would also be done at a representative sample of community water systems and non-transient, non-community water systems serving 10,000 or fewer people. EPA estimates that the proposed rule would require 4,200 large public water systems (i.e., systems serving more than 10,000 people) to conduct monitoring for the 28 chemical contaminants and two viruses. In addition, monitoring would be conducted for chemical contaminants at 800 small public water systems.

Wastewater

Milk and Milk Products Exempted From SPCC Requirements
On April 18, 2011 (76 FR 21652–21660), EPA exempted all milk and milk product containers, and associated piping and appurtenances, from the agency’s spill prevention, control, and countermeasures (SPCC) regulations. Milk typically contains a percentage of animal fat, and containers of milk and milk products could be considered subject to SPCC requirements for animal fats and vegetable oils. Vessels used in the milk pasteurizing process could be considered oil-filled manufacturing equipment, and are subject to the general provisions of the SPCC regulations. The final rule exempts all milk and milk product containers, and associated piping and appurtenances, from SPCC requirements. Milk products include dairy foods like cheese, cream, yogurt, and ice cream.

Court Decisions

The following court decision was added in April 2011:

  • Board of Mississippi Levee Commissioners v. EPA, No. 4:09CV81 (N.D. Miss. Mar. 28, 2011)—District court rules that EPA’s veto of Section 404 permit for Yazoo Backwater Project is not barred by CWA Section 404(r).

 

News

Business and the Environment

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

Focus Report

  • Report Sheds Light on Eco Raters

Perspectives

  • Palm Oil Giant Agrees to Protect Forests

Corporate Reporting

  • Institutional Investors Push for Increased Corporate Sustainability Reporting
  • GRI Launches Focal Point USA

Corporate Initiatives

  • New Vehicle Standards
  • Sun Isn’t Shining on US Solar Companies
  • Mountain Resorts Proclaim Environmental Stewardship
  • Forest Loss Slows as Asian Nations Plant Trees
  • Car Rental Companies Go Solar and Electric

Product Stewardship and Takeback

  • Solar Panel Recycling
  • Recycled Motor Oil Debuts
  • An Easier Way to Recycle Consumer Electronics?

ISO Update

  • Green Seal’s GS-46 Standard

Climate Change Update

  • Amazon Drought Emitted More CO2 Than the United States
  • Contrails, a Surprising Cause of Warming
  • World Food Prices Hit Record High