Environmental Compliance Update – October 2010

Additions to the Environmental Compliance Portfolio

During September 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

September 2010 additions to the Air Quality Compliance module included:

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

HOT TOPICS include:

  • New Cap-and-Trade Programs ProposedOn August 2, 2010 (75 FR 45210–45465), EPA proposed a replacement for the agency’s 2005 clean air interstate rule (CAIR). The CAIR established a regional cap-and-trade program across the eastern United States for sulfur dioxide (SO2) and nitrogen oxides (NOx), and was designed to reduce emissions of pollutants contributing to the formation of particulate matter and ozone. The proposed replacement for the CAIR, referred to as the Transport Rule, would require SO2 and NOx emission reductions from power plants in 31 states and the District of Columbia. To implement the emission reductions, the proposed rule would establish four emission trading programs: two trading programs for SO2, one program for annual NOx, and one program for ozone season NOx. The emission trading programs would allow affected sources within each program to trade with other sources within the respective program. EPA estimates that the annual direct cost to the power sector of complying with the proposed rule is $2.8 billion in 2014. The projected benefits of the proposed rule range from $120–$290 billion per year. The benefits associated with the proposed rule include avoidance of 14,000–36,000 premature deaths, 21,000 cases of acute bronchitis, 23,000 nonfatal heart attacks, and 26,000 hospital and emergency room visits. See Replacement for Clean Air Interstate Rule Proposed.

Hazardous Waste Compliance Materials and Tools

September 2010 additions to the Hazardous Waste Compliance module included:

  • One new regulatory analysis article was added, along with supporting Federal Register documents.
  • Two new case summaries were added, along with the associated court decisions.
  • Volume 28, Issue 5 of the Hazardous Waste Consultant was added. A printable/downloadable version of this issue is available to Internet subscribers at Environmental Compliance > Hazardous Waste Compliance > Hazardous Waste Regulatory Analysis Articles > Hazardous Waste Consultant Archive >.

HOT TOPICS include:

  • New EPCRA Reporting Guidance—In a July 13, 2010 notice (75 FR 39852–39859), EPA provided new guidance for, and interpretations of, Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements. Specifically, the notice provides guidance on various reporting options that states and local agencies may choose in implementing EPCRA Sections 311 and 312. The guidance addresses the following issues:1) use of underground storage tank (UST) forms to fulfill the requirements for Tier I information under EPCRA Section 312; 2) partnership programs for joint access to information, and streamlined submission of EPCRA Sections 311 and 312 reporting; 3) electronic submittal and certification for EPCRA Section 312 reporting; 4) incorporation of previous submissions into EPCRA Section 312 reporting; 5) electronic access to facility material safety data sheet databases; and 6) EPCRA Section 312 reporting to fulfill reporting requirements under Section 311. The notice also provides some new and revised interpretations to help facilities comply with the EPCRA Sections 304, 311, and 312 reporting requirements. These interpretations relate to EPCRA emergency release notification requirements and the hazardous chemical exemption for solids under EPCRA Section 311(e)(2). See EPA Issues Guidance and Interpretations for EPCRA Reporting Requirements.

Wastewater and Water Quality Compliance Materials and Tools

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

  • One court decision was added.
  • Six new guidance documents were added.

HOT TOPICS include:

  • Permits Required for Runoff From Logging Roads—In an August 17, 2010 decision, the U.S. Court of Appeals for the Ninth Circuit held that storm water runoff from logging roads that is collected by, and then discharged from, a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. See Northwest Environmental Defense Center v. Brown.

Business and the Environment

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

HOT TOPICS include:

  • Local, Sustainable Food—Mention Yale University, and a vision of a prestigious campus, studded with old ivy-covered buildings, comes to mind. But not far away is something new that is quickly gaining the limelight in its own right—the Yale Farm and the Yale Sustainable Food Project. As the Project’s mission describes, “. . . food offers us the opportunity to engage with the world around us. By gathering people around shared food, shared work, and shared inquiry, the Yale Sustainable Food Project fosters a culture that draws meaning and pleasure from the connections among people, land, and food.” The Sustainable Food Project encompasses management of an organic farm on campus, collaboration with a sustainable dining program at Yale, and operation of diverse programs that support exploration and academic inquiry related to food and agriculture. See The Yale Sustainable Food Project.

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 September 2010

Air Quality Compliance Materials and Tools

Analysis of Major Air Quality Issues

State Implementation Plans

Replacement for Clean Air Interstate Rule Proposed
On August 2, 2010 (75 FR 45210–45465), EPA proposed a replacement for the agency’s 2005 clean air interstate rule (CAIR). The CAIR established a regional cap-and-trade program across the eastern United States for sulfur dioxide (SO2) and nitrogen oxides (NOx), and was designed to reduce emissions of pollutants contributing to the formation of particulate matter and ozone. The proposed replacement for the CAIR, referred to as the Transport Rule, would require SO2 and NOx emission reductions from power plants in 31 states and the District of Columbia. To implement the emission reductions, the proposed rule would establish four emission trading programs: two trading programs for SO2, one program for annual NOx, and one program for ozone season NOx. The emission trading programs would allow affected sources within each program to trade with other sources within the respective program. EPA estimates that the annual direct cost to the power sector of complying with the proposed rule is $2.8 billion in 2014. The projected benefits of the proposed rule range from $120–$290 billion per year. The benefits associated with the proposed rule include avoidance of 14,000–36,000 premature deaths, 21,000 cases of acute bronchitis, 23,000 nonfatal heart attacks, and 26,000 hospital and emergency room visits.

Air Quality Regulatory Analysis Articles

State Implementation Plans

Proposed Rule Would Revise Transportation Conformity Regulations to Accommodate New NAAQS
On August 13, 2010 (75 FR 49435–49447), EPA proposed to revise the agency’s transportation conformity regulations to accommodate future new or revised national ambient air quality standards (NAAQS). The proposed rule is expected to reduce the need to amend the transportation conformity regulations in the future for the sole purpose of referencing new or revised NAAQS. In addition to making revisions to accommodate new or revised NAAQS, the proposed rule would also make revisions addressing EPA’s clean data policy, the baseline year to be used in interim emission tests, and transportation conformity requirements for secondary NAAQS.

Other Issues

Additional Revisions to Greenhouse Gas Reporting Rule Proposed
On August 11, 2010 (75 FR 48744–48814), EPA proposed additional revisions to the greenhouse gas reporting rule in 40 CFR Part 98. The proposed amendments are intended to clarify certain provisions, correct technical and editorial errors, and address questions and issues that have arisen since the rule was promulgated. While the proposed revisions are extensive, entities submitting greenhouse gas reports in 2011 (covering calendar year 2010) would be required to calculate and summit emission data according to the revised requirements. The agency indicates that the proposed revisions primarily provide additional clarifications or flexibility regarding the existing regulatory requirements, and generally do not affect the type of information that must be collected or how emissions are calculated.

Petitions to Reconsider Greenhouse Gas Endangerment and Cause or Contribute Findings Denied
In an August 13, 2010 final rule (75 FR 49556–49594), EPA announced its decision to deny petitions to reconsider the agency’s greenhouse gas endangerment and cause or contribute findings. In a December 15, 2009 final rule (74 FR 66496), the agency found that greenhouse gases present in the atmosphere may reasonably be anticipated to endanger public health and welfare. In the December 15, 2009 final rule, EPA determined that the mix of six key greenhouse gases meets the definition of “air pollution” within the meaning of CAA Section 202(a). In the August 13, 2010 final rule, EPA indicates that none of the information provided in the petitions for reconsideration change the agency’s confidence in the scientific conclusions that underlie its endangerment and cause or contribute findings.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

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

EPA Issues Guidance and Interpretations for EPCRA Reporting Requirements
In a July 13, 2010 notice (75 FR 39852–39859), EPA provided new guidance for, and interpretations of, Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements. Specifically, the notice provides guidance on various reporting options that states and local agencies may choose in implementing EPCRA Sections 311 and 312. The guidance addresses the following issues: 1) use of underground storage tank (UST) forms to fulfill the requirements for Tier I information under EPCRA Section 312; 2) partnership programs for joint access to information, and streamlined submission of EPCRA Sections 311 and 312 reporting; 3) electronic submittal and certification for EPCRA Section 312 reporting; 4) incorporation of previous submissions into EPCRA Section 312 reporting; 5) electronic access to facility material safety data sheet databases; and 6) EPCRA Section 312 reporting to fulfill reporting requirements under Section 311. The notice also provides some new and revised interpretations to help facilities comply with the EPCRA Sections 304, 311, and 312 reporting requirements. These interpretations relate to EPCRA emergency release notification requirements and the hazardous chemical exemption for solids under EPCRA Section 311(e)(2).

Reviews of Court Decisions and Consent Decrees

EPA’s Pattern and Practice of Administering CERCLA Section 106 Does Not Violate Due Process
In a June 29, 2010 decision, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a district court decision that General Electric Company (GE) had failed to show that EPA’s “pattern and practice” of administering CERCLA Section 106 violated constitutional due process (General Electric Company v. EPA, No. 09-5092 [D.C. Cir. June 29, 2010]). GE had claimed that a rational potentially responsible party (PRP) had no choice but to comply with an EPA unilateral administrative order (UAO), even though CERCLA offers PRPs choices after a UAO is issued. The appeals court acknowledged that the financial consequences of UAOs can be “substantial,” and a greater process under CERCLA “. . . might be desirable.” However, the court concluded that this concern did not “. . . implicate the constitutionality of CERCLA or of the policies and practices by which EPA implements it.”

U.S. Supreme Court Rules North Carolina Not Liable After Withdrawal From Interstate Compact
In a June 1, 2010 decision, the U.S. Supreme Court rejected a request by members of the Southeast Interstate Low-Level Radioactive Waste Management Compact (Compact) to hold North Carolina liable for more than $80 million in damages and sanctions for withdrawing from the Compact (Alabama v. North Carolina, No. 132 [U.S. June 1, 2010]). The Court concluded that the terms of the Compact did not authorize monetary sanctions against North Carolina. Further, the Court determined that it is not bound by the conclusion made by the Commission that administers the Compact that North Carolina breached its obligations under the Compact.

Wastewater and Water Quality Compliance Materials and Tools

Court Decisions

The following court decision was added in September 2010:

  • Northwest Environmental Defense Center v. Brown, No. 07-35266 (9th Cir. Aug. 17, 2010)—In an August 17, 2010 decision, the U.S. Court of Appeals for the Ninth Circuit held that storm water runoff from logging roads that is collected by, and then discharged from, a system of ditches, culverts, and channels is a point source discharge for which an National Pollutant Discharge Elimination System (NPDES) permit is required.

Wastewater Guidance Document Collection

The following guidance documents were added in September 2010:

  • Oversight of SIUs Discharging to POTWs without Approved Pretreatment Programs—This memorandum summarizes EPA and state responsibilities and options when acting as control authorities over significant industrial users (SIUs) discharging to publicly owned treatment works (POTWs) without approved pretreatment programs.

  • Applicability of Effluent Guidelines and Categorical Pretreatment Standards to Biodiesel Manufacturing—This memorandum to Water Division Directors summarizes the current Clean Water Act regulatory requirements, with regard to effluent limitations guidelines, new source performance standards, pretreatment standards, and/or NPDES storm water permitting, for the manufacturing process wastewater discharge from biodiesel industry.
  • Applicability of 2008 MSGP to Gravel Pits Associated with Road and Bridge Construction and Maintenance—This memorandum clarifies the applicability of the recently issued 2008 Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) to gravel pits that supply material to road and bridge construction and maintenance projects. EPA issued the notice of availability of the 2008 MSGP for Regions 1, 2, 3, 5, 9, and 10 in the Federal Register on September 29, 2008 and February 29, 2009.

  • MS4 Permit Improvement Guide—The primary purpose of the MS4 Permit Improvement Guide is to help NPDES permit writers strengthen municipal separate storm sewer system (MS4) storm water permits. The objective of the Guide is to facilitate the creation of MS4 permits that are clear, consistent with applicable regulations, and enforceable. The Guide contains examples of permit conditions and supporting rationale that could be used in fact sheets that accompany NPDES permits.
  • Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order—This guidance provides clarification of EPA’s roles and expectations, in coordinating with other federal agencies, to assure more consistent, effective, and timely compliance of Appalachian surface coal mining operations with the Clean Water Act, National Environmental Policy Act, and Environmental Justice Executive Order 12898.

  • Implementation Guidance on CAFO Regulations – CAFOs That Discharge or Are Proposing to Discharge—This document provides guidance for owners and operators of concentrated animal feeding operations (CAFOs) and NPDES permitting authorities for evaluating whether a CAFO discharges or proposes to discharge.

News

Business and the Environment

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

Focus Report

  • The Yale Sustainable Food Project

Perspectives

  • Energy Star Comes to Stay at Hampton Inn

Corporate Reporting

  • International Integrated Reporting Committee Forms

Corporate Initiatives

  • Tracking Sustainability
  • Choosing the Right Greenhouse Gas Accounting Tool

Product Stewardship and Takeback

  • Sustainable, Compostable, Even Edible, Packaging
  • Principles of Responsible Product Stewardship

ISO Update

  • ISO E 14064 Part 2, Conclusion

Climate Change Update

  • Record Breaking Temperatures
  • Heat Waves Could Become Commonplace
  • Fading Coal