Environmental Compliance Update – September 2010

Additions to the Environmental Compliance Portfolio

During August 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

August 2010 additions to the Air Quality Compliance module included:

  • Ten new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Four new case summaries were added, along with the associated court decisions.
  • Volume 20, Issue 5 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 Sulfur Dioxide Air Quality StandardOn June 22, 2010 (75 FR 35520–35603), EPA issued a new primary NAAQS for sulfur oxides by establishing a new one-hour sulfur dioxide (SO2) standard of 75 ppb. The new one-hour SO2 standard is based on the three-year average of the annual 99th percentile of one-hour daily maximum concentrations. The June 22, 2010 final rule also revokes both the existing 24-hour and annual SO2 standards, although the existing standards will continue to apply until one year after initial area designations are made for the new standard. The agency estimates that the new one-hour SO2 NAAQS will yield health benefits valued at between $13 billion and $33 billion. The expected benefits include reduced hospital admissions, emergency room visits, work days lost, and cases of aggravated asthma and chronic bronchitis.  See EPA Issues New Primary Ambient Air Quality Standard for Sulfur Dioxide.

Hazardous Waste Compliance Materials and Tools

August 2010 additions to the Hazardous Waste Compliance module included:

  • Three 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:

  • Regulation of Coal Combustion Residuals—On June 21, 2010 (75 FR 35128–35264), EPA proposed RCRA regulations for coal combustion residuals (CCRs) generated from the combustion of coal at electric utilities and independent power producers. CCRs contain contaminants (e.g., arsenic, cadmium, mercury) that are associated with cancer and various other serious health effects. Based on its risk assessment and damage cases, EPA has concluded that, without proper protections, these contaminants can leach into groundwater and migrate to drinking water sources, posing significant public health concerns. The proposed rule is designed to ensure the safe disposal and management of coal ash from coal-fired power plants that is disposed in surface impoundments and landfills. This is the first time national rules have been proposed specifically to manage coal ash disposal. See EPA Proposes Two Options for RCRA Regulation of Coal Combustion Residuals.

Wastewater and Water Quality Compliance Materials and Tools

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

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

HOT TOPICS include:

  • New Total Coliform Rule Proposed—The total coliform rule was issued on June 29, 1989 (54 FR 27544), and regulates microbial contaminants in public water systems. Under the total coliform rule, public water systems are required to meet maximum contaminant levels (MCLs) for total coliforms, as determined through monthly monitoring. The frequency and timing of monitoring required under the total coliform rule is based on the population served by the public water system. On July 14, 2010 (75 FR 40926–41016), EPA proposed to revise the 1989 total coliform rule. The proposed rule would establish a maximum contaminant level goal (MCLG) and MCL of zero for E. coli, and eliminate the current MCLG and MCL for total coliform. E. coli is a more specific indicator of fecal contamination and potential harmful pathogens than total coliform. EPA indicates that the July 14, 2010 proposed rule would impact approximately 154,000 public water systems serving approximately 307 million people. See EPA Proposes Revised Total Coliform Rule.

Business and the Environment

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

HOT TOPICS include:

  • EPA’s Energy Star Program—The criteria EPA sets forth for how products are labeled with the “Energy Star” tag are pretty straightforward, as described on the Energy Star Web site, where “product energy consumption and performance can be measured and verified with testing” to lend an air of credibility and assurance for the consumer. However, according to a recent US Government Accountability Office (GAO) report, while a number of American consumers, businesses, and federal agencies rely on the Energy Star program to identify products that decrease greenhouse gas emissions and lower energy costs, there are concerns that the Energy Star program is vulnerable to fraud and abuse. See Is There a Flaw in the Energy Star Program?

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 August 2010

Air Quality Compliance Materials and Tools

Analysis of Major Air Quality Issues

NAAQS

EPA Issues New Primary Ambient Air Quality Standard for Sulfur Dioxide
On June 22, 2010 (75 FR 35520–35603), EPA issued a new primary NAAQS for sulfur oxides by establishing a new one-hour sulfur dioxide (SO2) standard of 75 ppb. The new one-hour SO2 standard is based on the three-year average of the annual 99th percentile of one-hour daily maximum concentrations. The June 22, 2010 final rule also revokes both the existing 24-hour and annual SO2 standards, although the existing standards will continue to apply until one year after initial area designations are made for the new standard. The agency estimates that the new one-hour SO2 NAAQS will yield health benefits valued at between $13 billion and $33 billion. The expected benefits include reduced hospital admissions, emergency room visits, work days lost, and cases of aggravated asthma and chronic bronchitis.

Air Quality Regulatory Analysis Articles

Acid Rain

Revisions to Acid Rain Program Emission Testing Requirements Proposed
On June 11, 2010 (75 FR 33392–33420), EPA proposed to revise the agency’s acid rain program protocol gas verification program and the minimum competency requirements for emission testing bodies. In addition, the agency has proposed to amend a number of other sections of the acid rain program continuous monitoring regulations. The proposed rule would also remove the provisions pertaining to mercury monitoring and reporting.

NESHAP/MACT

Revisions Made to GACT Standards for Area Source Animal Feed Manufacturing Facilities
In a July 20, 2010 direct final rule (75 FR 41991–41994), EPA made three revisions to the generally available control technology (GACT) standards for area source animal feed manufacturing facilities. Specifically, the direct final rule: 1) revises the date by which new sources are required to submit a notification of compliance status, 2) corrects the information that needs to be included in compliance status reports for small facilities that are not required to install cyclones on their pelleting operations, and 3) adds regulatory text specifying under what circumstances annual compliance certification reports must be submitted. The GACT standards apply to area source prepared feed manufacturers (except for dog and cat food manufacturers) who add chromium compounds or manganese compounds to their product. EPA estimates that around 1,800 area source prepared feed manufacturing facilities are regulated under the GACT standards.

NSPS/Emission Guidelines

Revisions Proposed to NSPS for Stationary Internal Combustion Engines
On June 8, 2010 (75 FR 32612–32634), EPA proposed revisions to the NSPS for stationary compression ignition and spark ignition internal combustion engines. The proposed rule would revise the emission limits for nitrogen oxides (NOx) and particulate matter applicable to large stationary diesel engines, specifically compression ignition engines with a displacement of 10–30 liters per cylinder. The proposed emission limits are the same as those applicable to similar size nonroad diesel engines used in marine applications. The proposed rule would also revise the emission standards for stationary compression ignition engines with a displacement of 30 liters per cylinder or more to align those standards with requirements for similar mobile source marine engines.

Stratospheric Ozone Protection

Additional ODS Substitutes Approved Under EPA’s SNAP Program
In a June 16, 2010 acceptability determination (75 FR 34017–34040), EPA approved additional substitutes for ozone-depleting substances (ODS) under the agency’s significant new alternatives policy (SNAP) program. CAA Section 612(c) requires that EPA publish a list of acceptable substitutes for ODS, and substitutes found to be unacceptable for specific uses. EPA maintains lists of acceptable and unacceptable substitutes under its SNAP program. In the June 16, 2010 rulemaking, EPA has announced its approval of acceptable substitutes for ODS in the following sectors: refrigeration and air conditioning, foam blowing, aerosols, and sterilants.

Other Issues

Corrections and Clarifications Proposed to Greenhouse Gas Reporting Rule
On June 15, 2010 (75 FR 33950–33982), EPA proposed to amend specific provisions of the mandatory greenhouse gas reporting rule to correct technical and editorial errors that have been identified since the regulations were issued in October 2009. In addition, the proposed rule would clarify or revise certain provisions that have been the subject of questions from reporting entities. Entities required to report for calendar year 2010 will be expected to calculate emissions and submit data according to the amended regulations.

Proposed Rule Would Guide Public Release of Reported Greenhouse Gas Emission Data
On July 7, 2010 (75 FR 39094–39132), EPA proposed to establish the confidentiality status of data reported under the mandatory greenhouse gas reporting rule. Under the proposed rule, emission data and most data used to calculate emissions would not be considered confidential business information. In the proposed rule, the agency indicates that data that are not considered confidential business information will be made available to the public on the Internet. For data elements considered confidential business information, additional action (i.e., case-by-case justification) would not be required to allow the agency to withhold the data from public disclosure.

Greenhouse Gas Reporting Requirements Issued for Four Additional Source Categories
On July 12, 2010 (75 FR 39736–39777), EPA issued regulations to require monitoring and reporting of greenhouse gas emissions from magnesium production, underground coal mines, industrial wastewater treatment, and industrial waste landfills. Owners/operators of facilities covered under the new requirements are required to begin recordkeeping on January 1, 2011, and submit their first annual report by March 31, 2012. EPA has also decided not to issue separate greenhouse gas reporting requirements for ethanol production, food processing, and coal suppliers. Emissions associated with ethanol production, food processing, and coal suppliers will generally be reported under other source categories, or are already accounted for in other reporting requirements.

Renewable Fuel Standards for 2011 Proposed
Under CAA Section 211(o), which was added by the Energy Independence and Security Act of 2007, EPA is required to annually determine a renewable fuel standard, which is applicable to refiners, importers, and certain blenders of gasoline. The renewable fuel program mandates the use of 36 billion gallons of renewable fuel by 2022. On July 20, 2010 (75 FR 42238–42268), EPA proposed volume standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and renewable fuels applicable to all gasoline and diesel produced or imported in 2011. In addition, the proposed rule would revise the agency’s renewable fuel standard regulations to create a temporary and limited means for certain renewable fuel producers to generate delayed renewable identification numbers. The proposed rule would also establish criteria for foreign countries to adopt an aggregate approach for the renewable biomass provisions.

Confidentiality Determinations Proposed for Additional Greenhouse Gas Reporting Data
On July 7, 2010 (75 FR 39094), EPA proposed to establish the confidentiality status of data reported under the mandatory greenhouse gas reporting rule. Under the proposed rule, emission data and most data used to calculate emissions would not be considered confidential business information. On July 27, 2010 (75 FR 43889–43892), EPA supplemented the July 7, 2010 proposed rule to address the confidentiality status of new or revised greenhouse gas reporting data elements. Specifically, the July 27, 2010 proposed rule addresses data elements that would be added or revised as a result of a proposed rule published August 11, 2010 (75 FR 48744).

Reviews of Court Decisions and Consent Decrees

Appeals Court Rejects Challenges to New Lead NAAQS
In 1978 (43 FR 46246), EPA established primary and secondary NAAQS for lead at a level of 1.5 µg/m3, averaged over a calendar quarter. On November 12, 2008 (73 FR 66964), EPA lowered the primary and secondary lead NAAQS to 0.15 µg/m3, as a three-month rolling average, evaluated over a three-year period. On May 14, 2010, the U.S. Court of Appeals for the District of Columbia Circuit rejected challenges to the new lead NAAQS (Coalition of Battery Recyclers Ass’n v. EPA, No. 09-1011). Although the petitioners in the case claimed that EPA’s action was arbitrary and capricious in numerous ways, the federal appeals court accepted EPA’s rationale that a lower standard was necessary, based on intelligence quotient (IQ) deficits in children that are associated with higher levels of lead exposure.

Steel Manufacturing Facility to Pay $1.6 Million Fine and Shut Down to Settle Alleged CAA Violations
Under the terms of a proposed consent decree lodged May 17, 2010 in the U.S. District Court for the Western District of Pennsylvania, the Allegheny Ludlum Corporation will pay a $1.6 million civil penalty and cease operating the company’s Natrona, Pennsylvania facility (United States v. Allegheny Ludlum Corp., Civil Action No. 10-0673) to settle alleged CAA and Pennsylvania state implementation plan violations The alleged violations concerned excessive fugitive visible emissions from the Natrona facility.

Ohio Power Plant to Shut Down in Response to Alleged CAA Violations
Under a proposed consent decree lodged May 18, 2010 in the U.S. District Court for the Southern District of Ohio, American Municipal Power (AMP) will permanently shut down and retire all four units at the company’s R.H. Gorsuch Generating Station in Washington County, Ohio (United States v. American Municipal Power, Civil Action No. 2:10-cv-438). In addition, AMP will pay a civil penalty of $850,000, and will spend $15 million on energy efficiency projects. The alleged violations involved modifications to the plant that did not meet prevention of significant deterioration (PSD) permit and nonattainment new source review (NSR) requirements, and did not comply with the new source performance standards (NSPS) program and the Ohio state implementation plan. The facility changes at issue in the case included a boiler repair and life extension program conducted between 1981 and 1986, and an improvement and uprate program conducted between 1988 and 1991.


Appeals Court Reverses Ruling That Power Plant Emissions Constitute a Public Nuisance
In a July 26, 2010 decision, the U.S. Court of Appeals for the Fourth Circuit reversed a district court ruling that power plant emissions constitute a public nuisance (North Carolina v. Tennessee Valley Authority, No. 09-1623). In the decision, the federal appeals court overturned a ruling that held emissions from power plants operated by the Tennessee Valley Authority (TVA) constitute a public nuisance in North Carolina. The district court ruling imposed specific emission caps, and required that specified emission control technologies be installed by 2013. In the decision, the court stated: “. . .[I]t is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance.”

Hazardous Waste Compliance Materials and Tools

Analysis of Major Hazardous Waste Issues

Guidance, Reports, Policy, Programs

New EPA Memos Provide Agency Interpretations of RCRA Requirements
EPA frequently receives questions from industry, state agencies, and other affected parties about the complex RCRA regulations and how they apply to specific situations. In response, EPA personnel issue written regulatory interpretations, usually in the form of short letters or memoranda, which explain EPA’s position on a variety of RCRA-related issues. These memos can be invaluable in determining how the agency interprets complex aspects of the regulations. While these documents do not necessarily reflect “official” EPA policy, they do provide some basis for resolving issues related to hazardous waste determinations and permitting. The documents can also be valuable when state and federal regulatory staff interpret the regulations differently.

Hazardous Waste Regulatory Analysis Articles

Hazardous Waste Listings

EPA Proposes Two Options for RCRA Regulation of Coal Combustion Residuals
On June 21, 2010 (75 FR 35128–35264), EPA proposed RCRA regulations for coal combustion residuals (CCRs) generated from the combustion of coal at electric utilities and independent power producers. CCRs contain contaminants (e.g., arsenic, cadmium, mercury) that are associated with cancer and various other serious health effects. Based on its risk assessment and damage cases, EPA has concluded that, without proper protections, these contaminants can leach into groundwater and migrate to drinking water sources, posing significant public health concerns. The proposed rule is designed to ensure the safe disposal and management of coal ash from coal-fired power plants that is disposed in surface impoundments and landfills. This is the first time national rules have been proposed specifically to manage coal ash disposal.


National Priorities List

Update on the National Priorities List
CERCLA requires that EPA maintain the National Priorities List (NPL) to identify sites with known or threatened hazardous substance releases that warrant remedial action. As of July 13, 2010, there were 1,277 final sites on the NPL, another 61 sites had been proposed for listing, 343 entire sites and portions of another 52 sites had been deleted from the NPL, and construction had been completed at 1,084 sites. Between October 1, 2009 and June 30, 2010, EPA issued 7 final rules that modified the NPL by adding 13 sites to the general Superfund section of the NPL, and deleting 3 entire sites and portions of 1 site from the NPL. The agency also proposed adding eight new sites to the general Superfund section of the NPL. During this time period, the agency also added two general Superfund sites and two federal facilities sites to the NPL construction completion list.

Reviews of Court Decisions and Consent Decrees

Non-Settling PRPs May Intervene in Consent Decree Proceedings
In a June 2, 2010 decision, the U.S. Court of Appeals for the Ninth Circuit ruled that potentially responsible parties (PRPs) who are not settling with the government in a Superfund case may intervene in a consent decree approval proceeding (U.S. v. Aerojet General Corp., No. 08-55996). A consent decree provides immunity to settling PRPs from future CERCLA Section 113(f) contribution claims. Joining the Eighth and Tenth Circuits, the Ninth Circuit Court found that non-settling PRPs have a “significantly protectable interest” under CERCLA to ensure that a consent decree is a fair and reasonable allocation of costs and liability. Therefore, PRPs will be able to weigh in on the fairness of a consent decree that may impact their Section 113(f) contribution rights.

Government Owes $142 Million in Damages for Failing to Store Spent Nuclear Fuel
In an opinion issued June 3, 2010, the U.S. Court of Federal Claims determined that the Southern California Edison Company (SCE) was entitled to $142,394,294 in damages from the federal government (Southern California Edison Co. v. United States, Docket No. 04-0109C). The damages are to compensate SCE for the federal government’s failure to discharge its contractual obligation under a June 10, 1983 standard contract. In the contract between the U.S. Department of Energy (DOE) and SCE, DOE had agreed to begin the acceptance and permanent storage of spent nuclear fuel (SNF) and high-level waste (HLW) by January 31, 1998. When DOE did not meet the deadline, nuclear utilities across the United States had to find storage alternatives for their SNF and HLW in order to continue operating.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Compliance Issues

Wastewater

EPA Proposes Compliance Date Extension for SPCC Requirements
On August 3, 2010 (75 FR 45572–45579), EPA proposed to extend the date by which certain facilities must prepare or amend their spill prevention, control, and countermeasures (SPCC) plans and implement those plans. Under the proposed rule, certain owners/operators would be allowed until November 10, 2011 to prepare or amend and implement SPCC plans to reflect regulatory changes. The proposed compliance date extension would not apply to drilling, production, or workover facilities that are completely offshore, or that have both onshore and offshore components.

Water Quality

EPA Proposes Revised Total Coliform Rule
The total coliform rule was issued on June 29, 1989 (54 FR 27544), and regulates microbial contaminants in public water systems. Under the total coliform rule, public water systems are required to meet maximum contaminant levels (MCLs) for total coliforms, as determined through monthly monitoring. The frequency and timing of monitoring required under the total coliform rule is based on the population served by the public water system. On July 14, 2010 (75 FR 40926–41016), EPA proposed to revise the 1989 total coliform rule. The proposed rule would establish a maximum contaminant level goal (MCLG) and MCL of zero for E. coli, and eliminate the current MCLG and MCL for total coliform. E. coli is a more specific indicator of fecal contamination and potential harmful pathogens than total coliform. EPA indicates that the July 14, 2010 proposed rule would impact approximately 154,000 public water systems serving approximately 307 million people.

Court Decisions

The following court decisions were added in August 2010:

  • Anacostia Riverkeeper, Inc. v. Jackson, No. 09-0098 (D.D.C. May 25, 2010)—In a May 25, 2010 decision, the U.S. District Court for the District of Columbia ruled that EPA is required to develop new total maximum daily loads (TMDLs) for the District of Columbia. In the decision, the court vacated the agency’s standards that were expressed in terms of annual or seasonal pollutant limits.

  • Sierra Club v. Van Antwerp, No. 07-1756 (D.D.C. June 30, 2010)—In a June 30, 2010 decision, the U.S. District Court for the District of Columbia found that a U.S. Army Corps of Engineers’ determination that practicable alternatives to impacting wetlands did not exist was arbitrary and capricious. Such determinations are required under 40 CFR §230.10(a).
  • ConocoPhillips Co. v. EPA, No. 06-60662 (5th Cir. July 23, 2010)—On July 30, 2010, the U.S. Court of Appeals for the Fifth Circuit upheld EPA regulations for cooling water intake structures at new offshore oil and gas extraction facilities. In the decision, the court also granted a voluntary remand of the regulations for existing offshore oil and gas extraction facilities.

  • In re: Circle T Feedlot, Inc., NPDES Appeal Nos. 09-02 & 09-03 (EPA June 7, 2010)—On June 7, 2010, EPA’s Environmental Appeals Board upheld the National Pollutant Discharge Elimination System (NPDES) permits issued for four concentrated animal feeding operations. In the decision, the board upheld EPA’s conclusion that it, rather than the state of Nebraska, was the appropriate permitting agency.
  • In re: San Jacinto River Authority, NPDES Appeal No. 09-09 (EPA July 16, 2010)—In a July 16, 2010 decision, EPA’s Environmental Appeals Board remanded a permit to EPA Region 6 to explain the whole effluent toxicity testing requirements in an NPDES permit issued to the San Jacinto River Authority.

News

Business and the Environment

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

Focus Report

  • Is There a Flaw in the Energy Star Program?

Perspectives

  • NESEA’s BuildingEnergy10 a Boston Fixture

Corporate Reporting

  • Seeking Ideas for Improving Tomorrow’s Corporate Reporting
  • Sustainability Software Options Analyzed

Corporate Initiatives

  • New Regulations for Corporate Governance Reviewed By Insurers
  • EPA Proposes Rule to Address Interstate Air Pollution

Product Stewardship and Takeback

  • Recycling Electronic Waste for Medical Use
  • Neither Paper Nor Plastic, But Process Change Best Choice for Bags

ISO Update

  • ISO E 14064 Part 2, Continued

Climate Change Update

  • National Academy of Sciences Urges Swift Action on Climate
  • Climate Bill “On the Ropes” Would Save Billions
  • Climate Change a Global Threat Multiplier