July 2009


Additions to the Environmental Compliance Portfolio

During June 2009, 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


June 2009 additions to the Air Quality Compliance module included:

  • Nine new regulatory analysis articles were added, along with supporting Federal Register documents.
  • Four new case summaries were added, along with the associated court decisions.


HOT TOPICS include:

  • Changes Ahead for NSR Rules—On May 16, 2008 (73 FR 28321), EPA finalized regulations to implement the new source review (NSR) program for PM 2.5 (particulate matter with an aerodynamic diameter =2.5 microns). In the May 16, 2008 final rule, EPA revised the NSR regulations to address how states should implement NSR requirements for sources of PM-2.5 and PM-2.5 precursors. The final rule addresses PM-2.5 major source thresholds, significant emission rates, offset ratios for PM-2.5, interpollutant trading for offsets, and the applicability of NSR to PM-2.5 precursors. On June 1, 2009 (74 FR 26098–26099), the agency announced that it has granted a petition for reconsideration of the May 16, 2008 rulemaking. In addition, the June 1, 2009 final rule stays the effectiveness of a “grandfathering” provision in the federal PSD regulations. See Reconsideration Granted for PM-2.5 New Source Review Implementation Rule.
  • Emission Standards Proposed for Paint and Coating Manufacturers—On June 1, 2009 (74 FR 26142–26159), EPA proposed emission standards for the paint and allied products manufacturing source category. The proposed rule would apply to facilities that are area sources of hazardous air pollutants (HAPs), and manufacture paints, inks, adhesives, stains, varnishes, shellacs, putties, sealers, caulks, and other coatings. Affected facilities would be required to use emission control equipment to limit particulate matter emissions, and to implement work practices to limit emissions of volatile HAPs. The proposed generally available control technology (GACT) standards are expected to apply to more than 2,000 facilities in the United States. See Area Source Standards Proposed for Paint and Coating Manufacturers.

Hazardous Waste Compliance Materials and Tools


June 2009 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.


HOT TOPICS include:

  • EPCRA Section 313 Form A Eligibility Tightened—Under EPCRA Section 313, facilities that manufacture, process, or otherwise use certain toxic chemicals in excess of specified threshold quantities must annually report environmental releases of the chemicals. Subject facilities must file a separate toxics release inventory (TRI) reporting form (Form R) or a certification statement (Form A) for each listed chemical. On December 22, 2006 (71 FR 76932), EPA expanded the Form A applicability. However, in response to provisions in the Omnibus Appropriations Act of 2009, EPA issued a final rule on April 27, 2009 (74 FR 19001–19006) that reverts the Form A eligibility criteria to what was in effect prior to the 2006 rule. The final rule, which affects 40 CFR Part 372, is effective April 27, 2009. As a result, the more stringent Form A applicability criteria apply to TRI reports beginning with the 2008 reporting year, which are due July 1, 2009. See EPA Tightens Form A Eligibility for EPCRA Section 313 Reporting.
  • Federal Exemption Not Applicable to Hanford Mixed Waste—On March 10, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling that a federal hazardous waste exemption does not apply to transuranic mixed (TRUM) waste held at the Hanford Nuclear Reservation in Washington State (Washington v. Chu, No. 06-35227 [9th Cir. Mar. 10, 2009]). The U.S. Department of Energy (DOE) had argued that amendments made in 1996 to the Waste Isolation Pilot Plant (WIPP) Act of 1992 exempted TRUM waste from RCRA storage requirements and land disposal restrictions, if the waste had been designated by DOE for disposal at WIPP, regardless of where it is located in the United States. The appeals court disagreed, finding that “. . . Congress has clearly required that the designation exemption be applied only to wastes at WIPP.” As a result, the Hanford TRUM waste is subject to storage and land disposal prohibitions under Washington’s state law, which acts in lieu of the federal RCRA regulations. See Appeals Court Affirms Federal Exemption Does Not Apply to Mixed Waste in Washington State.

Wastewater and Water Quality Compliance Materials and Tools


June 2009 additions to the Wastewater and Water Quality Compliance module included:

  • One new regulatory analysis article was added, along with supporting Federal Register documents.
  • Two new cases were added.
  • Eight EPA guidance documents were added. The new guidance documents provide direction to public water systems and others required to comply with EPA’s groundwater rule. The new guidance documents are available at Environmental Compliance > Wastewater and Water Quality Compliance Materials and Tools > Water Quality Guidance Document Collection >.


HOT TOPICS include:

  • New SPCC Compliance Date—On June 19, 2009 (74 FR 29136–29142), EPA established November 10, 2010 as the date by which facilities must prepare or amend and implement their spill prevention, control, and countermeasures (SPCC) plans to implement changes made to the SPCC requirements in 2002, 2006, and 2008. The final rule also sets November 10, 2010 as the date by which farms must prepare or amend and implement their SPCC plans. The compliance dates for farms had been delayed indefinitely pending revisions to the SPCC requirements that specifically address farms. See New Compliance Date Set for Revised SPCC Requirements.
  • Supreme Court Upholds EPA and Corps of Engineers Decision That Mine Slurry is Fill Material—On June 22, 2009, the U.S. Supreme Court ruled that discharge of mine slurry is fill material, and is subject to Corps of Engineers CWA Section 404 permitting, rather than permitting by EPA as an industrial discharge. In the decision, the court upheld the federal agencies’ interpretation that mine slurry discharge should be permitted as fill material, and thus subject to a fill permit issued by the Corps of Engineers. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07-984 (U.S. June 22, 2009).

Business and the Environment


The June 2009 issue of the Business and the Environment newsletter included eight stories on sustainable development, and seven stories on recent climate change developments.


HOT TOPICS include:

  • Medical Device Waste Reduction—According to a report in the April 2009 issue of DOTmed Business News, hospitals in the United States produce approximately 6,600 tons of waste per day. While some of this waste is biohazardous, as much as 80–85% is non-hazardous solid waste like paper, cardboard, food, metal, glass, and plastics, or consists of waste streams like certain medical disposables that can be rendered non-hazardous. New regulations and purchaser preferences will soon change the waste disposal methods of hospitals, and ultimately the design decisions of medical device manufacturers. Regulations for waste reduction and minimization or elimination of hazardous substances have been in place in the European Union for several years for everything but medical devices; medical devices will likely be included in these requirements in the next few years. See Disposable Medical Devices — Painting a Greener Picture.

Go to http://hr.cch.com/environmental/ for more information on the Environmental Compliance Portfolio.


Additions to the Environmental Compliance Portfolio in June 2009

  • Air Quality Compliance Materials and Tools
  • A ir Quality Regulatory Analysis Articles

Acid Rain

Revisions to Acid Rain Program Regulations Detached From CAIR Rulemakings
In an interim final rule and a direct final rule issued December 15, 2008 (73 FR 75959 and 73 FR 75954, respectively), EPA reaffirmed changes to the agency’s acid rain program regulations that had been included in rulemakings implementing the clean air interstate rule (CAIR) and the federal implementation plan (FIP) for the CAIR. Because the CAIR and the related FIP had been vacated by the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit Court), the status of the regulatory changes made to the acid rain program was in doubt. On December 23, 2008, the DC Circuit Court revised its previous decision, and remanded the CAIR without vacating the CAIR regulations (North Carolina v. EPA, No. 05-1244 [D.C. Cir. Dec. 23, 2008]). On June 12, 2009 (74 FR 27940–27944), EPA issued a final rule that once again reaffirms the revisions to the acid rain program regulations. The final rule makes it clear that the agency is reaffirming the revisions to the acid rain program on their own merits, regardless of the eventual fate of the CAIR.

NESHAP/MACT

Area Source Standards Proposed for Paint and Coating Manufacturers
On June 1, 2009 (74 FR 26142–26159), EPA proposed emission standards for the paint and allied products manufacturing source category. The proposed rule would apply to facilities that are area sources of hazardous air pollutants (HAPs), and manufacture paints, inks, adhesives, stains, varnishes, shellacs, putties, sealers, caulks, and other coatings. Affected facilities would be required to use emission control equipment to limit particulate matter emissions, and to implement work practices to limit emissions of volatile HAPs. The proposed generally available control technology (GACT) standards are expected to apply to more than 2,000 facilities in the United States.

NSPS/Emission Guidelines

Additional Corrections Made to Part 60 Instrumental Test Methods
On May 22, 2008 (73 FR 29691), EPA issued a set of corrections to the agency’s continuous instrumental test methods. The final rule corrected errors that were introduced into EPA Methods 3A, 6C, 7E, and 20 when the agency revised a number of instrumental test methods on May 15, 2006 (71 FR 28082). EPA Methods 3A, 6C, 7E, and 20 are instrumental test methods for determining oxygen and carbon dioxide, sulfur dioxide, nitrogen oxides, and diluent emissions from stationary sources. On May 29, 2009 (74 FR 25666–25669), EPA issued a final rule making additional corrections to Methods 3A and 7E.

EPA Supplements Proposed Revisions to NSPS for Coal Processing Plants
On April 28, 2008 (73 FR 22901), EPA proposed revised standards for new coal preparation plants. The proposed rule would establish new emission limits and monitoring requirements for affected facilities constructed, reconstructed, or modified after April 28, 2008. On May 27, 2009 (74 FR 25304–25327), EPA supplemented the April 28, 2008 proposed rule. The supplemental proposal would revise the particulate matter emission and opacity limits for thermal dryers, pneumatic coal-cleaning equipment, and coal handling equipment that were included in the April 28, 2008 proposed rule. In addition, applicability of the thermal dryer emission standards would be expanded so that the standards apply to both direct contact and indirect contact thermal dryers, and to all pneumatic coal-cleaning equipment.

PSD/NSR Permitting

Effective Date of Rulemaking Addressing Aggregation in NSR Permitting Delayed Until May 18, 2010
On January 15, 2009 (74 FR 2376), EPA finalized an interpretation of how to address aggregation under existing new source review (NSR) regulations. The term “aggregation” describes the process of grouping together multiple physical changes or changes in method of operation into one project for the purposes of NSR applicability. The final rule established a rebuttable presumption that a physical or operational change that has operated three years or more is not substantially related to subsequent changes. In a May 14, 2009 final rule (74 FR 22693–22696), the agency delayed the effective date of the rulemaking on aggregation in NSR permitting until May 18, 2010.

Reconsideration Granted for PM-2.5 New Source Review Implementation Rule
On May 16, 2008 (73 FR 28321), EPA finalized regulations to implement the new source review (NSR) program for PM-2.5 (particulate matter with an aerodynamic diameter =2.5 microns). In the May 16, 2008 final rule, EPA revised the NSR regulations to address how states should implement NSR requirements for sources of PM-2.5 and PM 2.5 precursors. The final rule addresses PM-2.5 major source thresholds, significant emission rates, offset ratios for PM-2.5, interpollutant trading for offsets, and the applicability of NSR to PM-2.5 precursors. On June 1, 2009 (74 FR 26098–26099), EPA announced that it has granted a petition for reconsideration of the May 16, 2008 rulemaking. In addition, the June 1, 2009 final rule stays the effectiveness of a “grandfathering” provision in the federal PSD regulations.

State Implementation Plans

Revisions to Transportation Conformity Requirements Proposed
On May 15, 2009 (74 FR 23024–23043), EPA proposed revisions to the agency’s transportation conformity requirements to update those requirements in light of the new national ambient air quality standards (NAAQS) for particulate matter that were issued in 2006. Transportation conformity is required under CAA Section 176(c) 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 the NAAQS.

Final Rule Sets Schedule for Flagging Ozone Ambient Air Quality Monitoring Data Due to Exceptional Events
In a May 19, 2009 final rule (74 FR 23307–23313), EPA revised the agency’s regulations concerning flagging ambient air quality monitoring data associated with exceptional events. The final rule provides a new schedule for flagging exceptional event data and submitting documentation for ozone data that may be used to make area designations under the 2008 ozone national ambient air quality standards (NAAQS). The revised schedule adjusts data submittal deadlines to accommodate the deadline by which states must submit their attainment/nonattainment designation recommendations, and the date by which EPA must designate areas of the country as either attainment or nonattainment with the 2008 ozone NAAQS.

Other

Recent State and Local Agency Guidance
Under the CAA, state and local agencies are responsible to implement and enforce many programs designed to improve air quality. This article provides a synopsis of more than 100 guidance documents made available by agencies between January 2008 and April 2009 in the following 12 states: 1) Alabama, 2) Alaska, 3) Arizona, 4) Arkansas, 5) California, 6) Colorado, 7) Connecticut, 8) Florida, 9) Georgia, 10) Idaho, 11) Indiana, and 12) Iowa. The descriptions of recent state and local agency guidance include the document title, a brief summary of the document, and the agency that issued the document. Each summary also includes a hyperlink to the document.
Reviews of Court Decisions and Consent Decrees

EAB Remands PSD Permit for Cogeneration Unit at University of Northern Michigan
In a February 18, 2009 decision, EPA’s Environmental Appeals Board (EAB) remanded a prevention of significant deterioration (PSD) permit authorizing the construction of a new circulating fluidized bed boiler (In re: Northern Michigan University Ripley Heating Plant, PSD Appeal No. 08-02). In the decision, the EAB found that the agency that issued the permit had not adequately explained its choice of best available control technology (BACT) for sulfur dioxide control. In addition, the Board remanded the permit for the agency to analyze whether carbon dioxide and nitrous oxide (both greenhouse gases) emissions from the boiler should be subject to BACT limits.

Sixth Circuit Court Upholds Agency Discretion in Not Objecting to Title V Permit
In a February 26, 2009 decision, the U.S. Court of Appeals for the Sixth Circuit upheld EPA’s decision not to object to the CAA Title V permit for a Kentucky power plant (Sierra Club v. EPA, No. 07-4485 [6th Cir. Feb. 26, 2009]). In the case, the federal appeals court agreed with EPA’s reasoning that a notice of violation and the subsequent filing of a civil enforcement action are relevant factors in assessing a petitioner’s efforts to demonstrate permit noncompliance, but do not necessarily make the showing by themselves.

Court Upholds Federal Implementation Plan for Four Corners Power Plant
In an April 14, 2009 decision, the U.S. Court of Appeals for the Tenth Circuit upheld the federal implementation plan (FIP) for the Four Corners Power Plant located in northwest New Mexico (Arizona Public Service Co. v. EPA, No. 07-9546 [10th Cir. April 14, 2009]). The FIP for the Four Corners Plant is codified at 40 CFR §49.23. In the case, it was argued that EPA should have conducted additional modeling and air quality analysis to justify the plan. In addition, Arizona Public Service argued that the opacity limit included in the plan was unjustified. The court concluded that EPA was not required to conduct additional air quality analyses in promulgating the plan, and that the agency did not act arbitrarily or capriciously in establishing the opacity limit.

Meeting Consent Decree Obligations Proves Difficult for Aluminum Manufacturer
In a February 18, 2009 decision, the U.S. District Court for the Northern District of Indiana denied an aluminum manufacturer’s request to modify a consent decree that the company had only recently entered into (United States v. Jupiter Aluminum Corp., No. 2:07-CV-262 [N.D. Ind. Feb. 18, 2009]). On October 10, 2007, a consent decree was entered with the court establishing compliance requirements for operating the two melting furnaces at Jupiter Aluminum Corporation’s Hammond, Indiana facility. By February 5, 2008, the regulatory agencies involved calculated that the company owed $4,231,000 in stipulated penalties. In the February 18, 2009 decision, the federal district court denied the company’s request to modify the consent decree and reduce the penalty amount. While the company may have underestimated the consequences of the consent decree, the court did not find that reason enough to justify modification of the agreement.

Hazardous Waste Compliance Materials and Tools

Hazardous Waste Regulatory Analysis Articles

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

EPA Tightens Form A Eligibility for EPCRA Section 313 Reporting
Under EPCRA Section 313, facilities that manufacture, process, or otherwise use certain toxic chemicals in excess of specified threshold quantities must annually report environmental releases of the chemicals. Subject facilities must file a separate toxics release inventory (TRI) reporting form (Form R) or a certification statement (Form A) for each listed chemical. On December 22, 2006 (71 FR 76932), EPA expanded the Form A applicability. However, in response to provisions in the Omnibus Appropriations Act of 2009, EPA issued a final rule on April 27, 2009 (74 FR 19001–19006) that reverts the Form A eligibility criteria to what was in effect prior to the 2006 rule. The final rule, which affects 40 CFR Part 372, is effective April 27, 2009. As a result, the more stringent Form A applicability criteria apply to TRI reports beginning with the 2008 reporting year, which are due July 1, 2009.

Guidance, Reports, Policy, Programs

National Environmental Performance Track Program Terminated
EPA implemented the National Environmental Performance Track program in 2000. The program was designed to recognize and encourage companies that exceed minimum regulatory requirements and take voluntary steps to reduce and prevent pollution. On May 14, 2009 (74 FR 22741–22742), EPA announced that it is terminating the Performance Track program immediately. The agency discussed its decision, the close-out process for the program, and plans for the future in two memoranda issued in March 2009. In May 2009, EPA issued the final progress report for the Performance Track program.


Reviews of Court Decisions and Consent Decrees

Appeals Court Affirms Federal Exemption Does Not Apply to Mixed Waste in Washington State
On March 10, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling that a federal hazardous waste exemption does not apply to transuranic mixed (TRUM) waste held at the Hanford Nuclear Reservation in Washington State (Washington v. Chu, No. 06-35227 [9th Cir. Mar. 10, 2009]). The U.S. Department of Energy (DOE) had argued that amendments made in 1996 to the Waste Isolation Pilot Plant (WIPP) Act of 1992 exempted TRUM waste from RCRA storage requirements and land disposal restrictions, if the waste had been designated by DOE for disposal at WIPP, regardless of where it is located in the United States. The appeals court disagreed, finding that “. . . Congress has clearly required that the designation exemption be applied only to wastes at WIPP.” As a result, the Hanford TRUM waste is subject to storage and land disposal prohibitions under Washington’s state law, which acts in lieu of the federal RCRA regulations.

Sovereign Immunity Prevents State Law Environmental Trespass Claim
In a March 5, 2009 decision, the U.S. District Court for the Western District of Washington granted the U.S. Maritime Administration’s motion for dismissal of a state law trespass claim because the agency had not waived sovereign immunity (Iron Partners LLC v. Maritime Admin., No. C08-5217 [W.D. Wash, March 5, 2009]). In the case, a company attempted to hold the U.S. Maritime Administration liable for trespass under Washington state law for hazardous substances and debris found on its property that had apparently been buried there during, and after, World War II.

Wastewater and Water Quality Compliance Materials and Tools

Analysis of Major Wastewater and Water Quality Issues

Wastewater

New Compliance Date Set for Revised SPCC Requirements
On June 19, 2009 (74 FR 29136–29142), EPA established November 10, 2010 as the date by which facilities must prepare or amend and implement their spill prevention, control, and countermeasures (SPCC) plans to implement changes made to the SPCC requirements in 2002, 2006, and 2008. The final rule also sets November 10, 2010 as the date by which farms must prepare or amend and implement their SPCC plans. The compliance dates for farms had been delayed indefinitely pending revisions to the SPCC requirements that specifically address farms.

Business and the Environment

The June 2009 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:

Focus Report

  • Disposable Medical Devices — Painting a Greener Picture

Perspectives

  • Plastiki to Set Sail This Summer

Corporate Reporting

  • TRI Reporting Requirements Reinstated
  • Report Flunks Largest Indian Companies

Corporate Initiatives

  • Biofuels Get Boost From Obama Administration
  • Comprehensive Energy Legislation Moves Forward
  • New US Vehicles to Meet California MPG Standards
  • Conference News

Product Stewardship and Takeback

  • Europe Phases Out Energy-Wasting Lighting
  • Pallets Go Green

ISO 14000 Update

  • ISO 26000 — Guidance on Social Responsibility

Climate Change Update

  • The Invention and Transfer of Climate Change Mitigation
  • Drought Turns Rainforest Into Net Carbon Emitter
  • Climate Change Starts Drying Up Big Rivers
  • Warming Reduces Oceans’ Absorption of CO2