Environmental Compliance Update – November 2010

Additions to the Environmental Compliance Portfolio

In October 2010, two new software tools known as Smart Charts were added to IntelliConnect under Practice Tools > Environmental Compliance:

  • Air Quality Regulation Changes Smart Chart—This Smart Chart identifies changes made to federal air quality regulations in 40 CFR Parts 50 through 99. This Smart Chart allows users to select the regulations that apply, and the time period of interest. This Smart Chart can be used to identify changes to applicable requirements in Title V operating permits, and track changes to specific regulations. The Smart Chart results provide hyperlinks to available analysis articles that explain the rulemaking actions and the applicable Federal Register documents. The Save Chart and Export Chart features allow users to further customize results when updating permit requirements and identifying potential compliance issues.
  • Federal Greenhouse Gas Reporting Smart Chart—This Smart Chart allows users to filter and sort the 40 CFR Part 98 greenhouse gas reporting regulations to meet their specific requirements. Additionally, the Smart Chart allocates regulatory requirements by compliance option and by regulatory task (i.e., calculations, monitoring, reporting, recordkeeping). This Smart Chart allows users to 1) conduct side-by-side comparisons of compliance options; 2) integrate the general provision requirements with industry-specific requirements; 3) integrate the combustion source options and other applicable requirements with industry-specific requirements; and 4) build customized compliance plans for specific pieces of equipment, process lines, or entire facilities. The Save Chart and Export Chart features allow further customization.

In addition, during October 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

October 2010 additions to the Air Quality Compliance module included:

  • Seven new regulatory analysis articles were added, along with supporting Federal Register documents.
  • One new case summary was added.
  • The three indexes in Air Quality Indexes and Finding Aids were updated to reflect articles, cases, and guidance documents added through September 2010. In total, index additions included:

—164 entries added to the keyword index,
—86 entries added to the citation index, and
—62 entries added to the industry index.

  • Volume 20, Issue 6 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:

  • New Emission Standards for Cement PlantsOn September 9, 2010 (75 FR 54970–55066), EPA issued revised maximum achievable control technology (MACT) standards and new source performance standards (NSPS) for portland cement plants. The revised MACT standards set emission limits for mercury, total hydrocarbons, and particulate matter that apply to kilns that are located at either major or area sources of hazardous air pollutants (HAPs). The revised MACT standard also sets a hydrochloric acid (HCl) emission limit applicable to kilns at major sources. The revised NSPS set emission limits for nitrogen oxides (NOx), sulfur dioxide (SO2), and particulate matter that are applicable to all cement kilns constructed or reconstructed after June 16, 2008. It is expected that 181 portland cement kilns at 100 facilities will be operating in 2013. Of those, 158 will be subject to the revised MACT standards. The remaining kilns are subject to regulations applicable to kilns that burn hazardous waste. About seven kilns will be subject to the revised NSPS in 2013. See Revised MACT Standards and NSPS Issued for Portland Cement Plants.

Hazardous Waste Compliance Materials and Tools

October 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.

HOT TOPICS include:

  • Disposal of Unused Pharmaceuticals—On September 8, 2010 (75 FR 54627), EPA requested public comment on its draft guidance for managing unused pharmaceuticals at health care facilities. The goal of the draft guidance document, titled Draft Guidance Document: Best Management Practices for Unused Pharmaceuticals at Health Care Facilities, is to reduce the amount of unused pharmaceuticals that are discharged to water bodies through improved management practices. EPA developed its best management practices for unused pharmaceuticals based on site visits to 12 health care facilities, and consultation with more than 700 health care professionals, government entities, health care industry associations, and unused pharmaceutical management companies. EPA also reviewed disposal data from 20 hospitals and long-term care facilities, literature data, reports, and state recommendations. See Draft Guidance Issued on Best Management Practices for Unused Pharmaceuticals.

Wastewater and Water Quality Compliance Materials and Tools

October 2010 additions to the Wastewater and Water Quality Compliance module included:

  • One new regulatory analysis article was added, along with the supporting Federal Register document.
  • Two court decisions were added.
  • The three indexes in Wastewater and Water Quality Indexes and Finding Aids were updated to reflect articles, cases, and guidance documents added through September 2010. In total, index additions included:

—77 entries added to the keyword index,
—25 entries added to the citation index, and
—12 entries added to the industry index.

HOT TOPICS include:

  • New Wastewater Sampling Methods—On September 23, 2010 (75 FR 58024–58076), EPA proposed revisions to wastewater sampling and analysis procedures intended to provide the regulated community and laboratories with increased flexibility. The proposed rule would permit the use of new EPA methods and methods published by voluntary consensus standard bodies, such as ASTM International and the Standard Methods Committee, as well as updated versions of currently approved methods. In addition, the proposed rule would add certain methods reviewed under the agency’s alternate test procedures program. See Revisions Proposed to Wastewater Sampling and Analysis Procedures.

Business and the Environment

The October 2010 issue of the Business and the Environment newsletter included 13 stories on sustainable development and four stories on recent climate change developments.

HOT TOPICS include:

  • Sustainability in Corporate Activities—Environmental “accountability” has evolved in the nearly one-half century since the publication of Rachel Carson’s eye-opening book, Silent Spring, in 1962. One topic that is gaining momentum is sustainability, which takes into account how all aspects of a company’s business practices can affect the global environment. Each year, a greater number of companies are publishing sustainability reports to showcase their sustainability efforts in a transparent manner. However, a survey of nearly 2,000 business executives representing a wide range of industries and regions that was conducted by the international consulting firm McKinsey & Company earlier this year noted that, while many executives think sustainability is important to a number of corporate activities, not that many companies are actively managing sustainability, and not all companies pursue sustainability with equal zeal. See The McKinsey Global Survey.

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 October 2010

Air Quality Compliance Materials and Tools

Air Quality Regulatory Analysis Articles

NESHAP/MACT

New Emission Standards Issued for Stationary Spark Ignition Internal Combustion Engines
On August 20, 2010 (75 FR 51570–51608), EPA finalized national emission standards for two categories of existing stationary spark ignition reciprocating internal combustion engines (RICE): 1) engines that are located at area sources of hazardous air pollutants (HAPs), and 2) engines located at major HAP sources that have a site rating ≤500 HP. The agency estimates that about 330,000 existing stationary engines will be subject to the final rule. When fully implemented in 2013, the final rule is expected to reduce HAP emissions from stationary RICE by 6,000 tons per year (tpy). In addition, the final rule is expected to reduce carbon monoxide (CO) emissions by 109,000 tpy, nitrogen oxides (NOx) emissions by 96,000 tpy, and volatile organic compound (VOC) emissions by 31,000 tpy

Revised MACT Standards and NSPS Issued for Portland Cement Plants
On September 9, 2010 (75 FR 54970–55066), EPA issued revised maximum achievable control technology (MACT) standards and new source performance standards (NSPS) for portland cement plants. The revised MACT standards set emission limits for mercury, total hydrocarbons, and particulate matter that apply to kilns that are located at either major or area sources of hazardous air pollutants (HAPs). The revised MACT standard also sets a hydrochloric acid (HCl) emission limit applicable to kilns at major sources. The revised NSPS set emission limits for nitrogen oxides (NOx), sulfur dioxide (SO2), and particulate matter that are applicable to all cement kilns constructed or reconstructed after June 16, 2008. It is expected that 181 portland cement kilns at 100 facilities will be operating in 2013. Of those, 158 will be subject to the revised MACT standards. The remaining kilns are subject to regulations applicable to kilns that burn hazardous waste. About seven kilns will be subject to the revised NSPS in 2013.

NSPS/Emission Guidelines

Final Rule Requires That Source Test Audit Samples Be Obtained From Accredited Providers
On September 13, 2010 (75 FR 55636–55657), EPA revised 40 CFR Parts 51, 60, 61, and 63 to require that stationary sources obtain audit samples from accredited providers, rather than EPA supplying audit samples, as is currently the practice. During a compliance test, the audit samples are analyzed alongside samples collected in the field to evaluate the quality of the data. Historically, EPA has provided audit samples to regulatory agencies free of charge. Under the September 13, 2010 final rule, accredited private companies will prepare and sell audit samples for use in assessing the quality of stationary source test data. The stationary source, rather than the permitting agency or compliance authority, has the burden of obtaining audit samples.

Other Issues

Greenhouse Gas Reporting Rule Revised to Require Additional Information
On September 22, 2010 (75 FR 57669–57686), EPA revised the greenhouse gas reporting rule in 40 CFR Part 98 to require affected entities to include additional information in their annual reports. Specifically, the final rule requires affected entities to provide 1) information concerning their ownership; 2) North American industry classification system (NAICS) code(s); and 3) an indication of whether or not any of the reported emissions are from a cogeneration unit. The new reporting requirements apply to all entities required to report under Part 98, and must be included in reports for 2010. Reports covering 2010 are due March 31, 2011.

Lifecycle Greenhouse Gas Emission Impact Analysis Completed for Canola Oil Biodiesel
The Energy Independence and Security Act of 2007 establishes four separate categories of renewable fuels, each with a separate volume mandate and specific lifecycle greenhouse gas emission threshold. The categories are cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuel. On September 28, 2010 (75 FR 59622–59634), EPA issued a final determination that canola oil biodiesel meets the biomass-based diesel and advanced biofuel greenhouse gas reduction thresholds of 50%, as compared to the baseline petroleum fuel it will replace (petroleum diesel). The final rule also includes a new regulatory provision establishing a temporary means for producers or importers of canola oil biodiesel to generate renewable identification numbers for qualifying biofuel produced or imported between July 1, 2010 and September 28, 2010.


PSD/NSR Permitting

Proposed Changes to Ozone NAAQS Implementation Rules Address NSR Anti-Backsliding Provisions
On August 24, 2010 (75 FR 51960–51968), EPA proposed to clarify when states are required to retain nonattainment new source review (NSR) regulations related to the one-hour ozone national ambient air quality standards (NAAQS). Under the proposed rule, areas that were designated nonattainment for the one-hour ozone NAAQS, and have subsequently been designated nonattainment for the 1997 eight-hour ozone NAAQS, must retain in their state implementation plan (SIP) the nonattainment NSR provisions related to the one-hour ozone standard. For areas that are designated attainment for the eight-hour ozone NAAQS, the state can request that the nonattainment NSR provisions related to its designation status under the one-hour ozone standard be removed from the SIP.

FIP Proposed to Allow Issuance of PSD Permits to Greenhouse Gas Emission Sources
On September 2, 2010 (75 FR 53892–53907), EPA proposed to find that the state implementation plans (SIPs) for 13 states are inadequate because they do not apply prevention of significant deterioration (PSD) permitting requirements to greenhouse gas emission sources. A federal implementation plan (FIP) has also been proposed that would allow EPA, rather than the state, to issue PSD permits for greenhouse gas emission sources (75 FR 53883–53892) in the 13 states. Without the FIP, on or after January 2, 2011, greenhouse gas emission sources located in the 13 states that need to obtain a PSD permit for construction or modification will be unable to do so. Under CAA PSD requirements, construction of a major source or a major modification to a major source cannot commence without a permit.

Reviews of Court Decisions and Consent Decrees

Proposed Consent Decree Sets Schedule for Residual Risk Standards
CAA Section 112(f)(2) directs EPA to determine, for each maximum achievable control technology (MACT) source category, whether the MACT standards protect public health with an ample margin of safety. If, after implementation, the MACT standards are not adequately protective of public health, the agency is to issue new standards to address the residual risk. Under the provisions of CAA Section 112(d)(6), the agency is required to periodically review and, if necessary, revise MACT standards to reflect new emission control techniques or practices. On July 14, 2010 (75 FR 40827–40828), EPA announced a proposed consent decree to settle a lawsuit filed in the U.S. District Court for the Northern District of California alleging that the agency had failed to meet statutory obligations under CAA Sections 112(f)(2) and 112(d)(6) (Sierra Club v. Jackson, No. 09-cv-00152 [N.D. Cal.]). The proposed consent decree establishes a schedule by which EPA must take actions relative to its review and revision of MACT standards for 28 source categories.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

Guidance, Reports, Policy, Programs

Draft Guidance Issued on Best Management Practices for Unused Pharmaceuticals
On September 8, 2010 (75 FR 54627), EPA requested public comment on its draft guidance for managing unused pharmaceuticals at health care facilities. The goal of the draft guidance document, titled Draft Guidance Document: Best Management Practices for Unused Pharmaceuticals at Health Care Facilities, is to reduce the amount of unused pharmaceuticals that are discharged to water bodies through improved management practices. EPA developed its best management practices for unused pharmaceuticals based on site visits to 12 health care facilities, and consultation with more than 700 health care professionals, government entities, health care industry associations, and unused pharmaceutical management companies. EPA also reviewed disposal data from 20 hospitals and long-term care facilities, literature data, reports, and state recommendations.

Brownfield Program Produces Environmental and Economic Benefits
EPA believes that cleaning up and reinvesting in brownfield sites protects the environment, reduces blight, and eases development pressures for greenspaces and working lands. Accordingly, in 1995, the agency established its Brownfields Program to work with states, communities, and other stakeholders to prevent, assess, clean up, and sustainably reuse brownfields. Recently, EPA announced the recipients of Brownfields Program supplemental grants for fiscal year (FY) 2010, and reported on the environmental and economic benefits of the program.

Hazardous Waste Listings

EPA Revises Proposal to Regulate the Disposal of Coal Combustion Residuals
EPA proposed RCRA regulations for coal combustion residuals generated from the combustion of coal at electric utilities and independent power producers on June 21, 2010 (75 FR 35128). On August 20, 2010 (75 FR 51434–51436), the agency: 1) issued corrections to the proposed rule, 2) announced the availability of new documents relevant to the rule, 3) announced that additional public meetings and a Webinar would be held, and 4) extended the public comment period on the rule.

Other

TSCA Petition to Ban Lead Bullets and Shot Denied, But Ban on Lead Fishing Sinkers Being Considered
On September 24, 2010 (75 FR 58377–58378), EPA announced that it has denied a petition requesting that the agency prohibit the manufacture, processing, and distribution in commerce of lead bullets and shot. Several environmental groups submitted the August 3, 2010 petition under Section 21 of the Toxic Substances Control Act (TSCA). The agency’s decision is based on its determination that it does not have the authority to regulate lead bullets and shot under TSCA. However, EPA is still considering the petitioners’ request to ban lead fishing sinkers.

Reviews of Court Decisions and Consent Decrees

RCRA Underground Storage Tank Indemnification Bar Not Applicable to Private Actions
In a July 8, 2010 decision, the U.S. District Court for the District of Puerto Rico ruled that a RCRA provision barring the transfer of underground storage tank liability by indemnification agreement does not apply to actions by private sector litigants (Sanchez v. Esso Standard Oil de Puerto Rico Inc., No. 08-2151 [D.P.R. July 8, 2010]). The district court concluded that the RCRA provision only prevents the transfer of liability in the context of a government enforcement action. Therefore, the court did not dismiss a counterclaim for indemnification filed by Esso Standard Oil de Puerto Rico Inc. against a gasoline station owner.

Owner of Property When Cleanup Costs Are Incurred Is Liable Under CERCLA
In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit ruled on July 22, 2010 that the owner of a property when cleanup costs are incurred is the “current owner” for purposes of determining CERCLA liability (California Department of Toxic Substances Control v. Hearthside Residential Corporation, No. 09-55389 [9th Cir. July 22, 2010]). The case presented the question of whether “owner and operator” status under CERCLA is determined when cleanup costs are incurred, or at the time that a recovery lawsuit seeking reimbursement is filed.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Issues

Wastewater

Revisions Proposed to Wastewater Sampling and Analysis Procedures
On September 23, 2010 (75 FR 58024–58076), EPA proposed revisions to wastewater sampling and analysis procedures intended to provide the regulated community and laboratories with increased flexibility. The proposed rule would permit the use of new EPA methods and methods published by voluntary consensus standard bodies, such as ASTM International and the Standard Methods Committee, as well as updated versions of currently approved methods. In addition, the proposed rule would add certain methods reviewed under the agency’s alternate test procedures program.

Court Decisions

The following court decisions were added in October 2010:

  • United States v. Donovan, No. 96-484 (D. Del. Sept. 10, 2010)—U.S. District Court upholds Magistrate Judge’s determination that wetlands are subject to Clean Water Act (CWA) jurisdiction under the Supreme Court’s ruling in Rapanos v. U.S., 547 U.S. 715 (2006).
  • Sackett v. EPA, No. 08-35854 (9th Cir. Sept. 17, 2010)—Federal appeals court rules that EPA administrative compliance orders are not subject to judicial review until after the agency has started an enforcement action in federal court.

News

Business and the Environment

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

Focus Report

  • The McKinsey Global Survey

Perspectives

  • Surveys Find Dissimilar Corporate Sustainability Perspectives

Corporate Reporting

  • Investors Want Sustainability Reporting Added to Listing Rules
  • Singapore Issues Reporting Guidelines
  • Ceres-ACCA Sustainability Reporting Awards — Call for Submissions

Corporate Initiatives

  • Green Aviation Takes Off
  • More Than One-Third of Species Face Extinction
  • GreenBiz Innovation Forum 2010
  • The 10 Million Solar Roofs Act of 2010
  • Responsible Investing in a Changing Financial Landscape

Product Stewardship and Takeback

  • EPA Requests Comments Regarding Unused Pharmaceuticals Guidance
  • CCS Technology Project Slated

ISO Update

  • ISO 14064 Part 3

Climate Change Update

  • Oceans Have Warmed Significantly
  • Rapid Decline in Phytoplankton Stuns Scientists
  • EPA Drops Climate Leaders Program
  • Record Heat and Drought in Russia Mean Soaring Wheat Prices