October 2009
Additions to the Environmental Compliance Portfolio
During September 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
September 2009 additions to the Air Quality Compliance module included:
- Six new regulatory analysis articles were added, along with supporting Federal Register documents.
- Five new case summaries were added, along
with the associated court decisions.
HOT TOPICS include:
- MACT Compliance During Start-up, Shutdown, and Malfunction Events—In an April 20, 2006 final rule (71 FR 20446), EPA greatly diminished the regulatory significance of the start-up, shutdown, and malfunction plans (SSMPs) required under 40 CFR Part 63 maximum achievable control technology (MACT) standards. The final rule revised the MACT general provisions (Part 63, Subpart A), numerous Part 63 MACT standards, and the Part 65 consolidated federal air rule such that facilities were no longer required to follow their written SSMP during periods of start-up, shutdown, or malfunction. In a December 19, 2008 decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated the April 20, 2006 rulemaking (Sierra Club v. EPA, 551 F.3d 1019 [D.C. Cir. 2008]). On August 26, 2009 (74 FR 43124), EPA announced the availability of a letter in which the agency addressed concerns that have been raised regarding the impact of the court’s decision. According to the agency, the court’s decision immediately affects only those MACT standards that incorporate by reference the MACT general provision exemption for periods of start-up, shutdown, and malfunction, and contain no other regulatory text exempting or excusing compliance during start-up, shutdown, and malfunction events. See New Guidance Issued on MACT Compliance During Start-up, Shutdown, and Malfunction Events.
- State Cannot Be Sued for Not Enforcing Standard—In a July 29, 2009 decision, the U.S. District Court for the Southern District of Ohio ruled that the citizen suit provisions in CAA Section 304 do not allow suits against a state agency for failure to enforce emission standards (Sierra Club v. Korleski, No. 2:08-cv-865 [S.D. Ohio July 29, 2009]). According to the court, only the U.S. EPA can be sued under Section 304 for failure to enforce an emission standard. A state agency can only be sued under the CAA citizen suit provisions if the agency is itself an emission source that violates an emission standard. The federal district court acknowledged that other courts have interpreted the CAA provision at issue as allowing suits against state and local governments for failure to enforce a state implementation plan (SIP). Nonetheless, the court concluded that a citizen suit is authorized against the state only as a polluter. According to the court, the statute does not authorize a suit against the state as a regulator who fails to enforce the Act. See District Court Finds State Cannot Be Sued Under CAA Section 304 for Failure to Enforce a Standard.
Hazardous Waste Compliance Materials and Tools
September 2009 additions to the Hazardous Waste Compliance module included:
- Five new regulatory analysis articles were added, along with supporting Federal Register documents.
- Volume 27, Issue 5 of the Hazardous Waste Consultant was added. A printable/downloadable version of this issue is available to Internet subscribers at Explanations, Treatises & Guidebooks > Environmental Compliance > Hazardous Waste Compliance > Hazardous Waste Regulatory Analysis Articles > Hazardous Waste Consultant Archive >.
HOT TOPICS include:
- First Ever CERCLA Public Health Emergency Declared—On June 17, 2009, EPA issued the first public health emergency under CERCLA. The public health emergency applies to the Libby Asbestos Site, which includes the towns of Libby and Troy in Lincoln County, Montana, and an inactive vermiculite mine located seven miles northeast of Libby. The agency issued the public health emergency pursuant to CERCLA Section 104(a)(4) based on its assessment that, despite ongoing cleanup activities, there continues to be a significant ongoing threat to public health from exposure to asbestos in the area. See First CERCLA Public Health Emergency Issued for Libby Asbestos Site.
Wastewater and Water Quality Compliance Materials and Tools
September 2009 additions to the Wastewater and Water Quality Compliance module included:
- Three new regulatory analysis articles
were added, along with supporting Federal Register documents.
HOT TOPICS include:
- New Effluent Standards for Airport Deicing Operations Proposed—On August 28, 2009 (74 FR 44676–44718), EPA proposed effluent limitation guidelines and new source performance standards (NSPS) for discharges from airport deicing operations. The proposed rule would establish national standards for wastewater discharges associated with the deicing of aircraft and airfield pavement at primary commercial airports. Primary commercial airports are those that have more than 10,000 passenger boardings each year. Primary airports are further subdivided into large hub, medium hub, small hub, and non-hub classifications. EPA estimates that 218 primary airports will be regulated under the proposed rule. Under the August 28, 2009 proposed rule, affected airports would be required to: 1) collect at least a specified proportion (either 20% or 60%) of available aircraft deicing fluid after it is sprayed on aircraft; 2) meet a specified numeric effluent limit for aircraft deicing fluid wastewater collected and discharged on site; and 3) certify that it uses airfield pavement deicers that do not contain urea. In addition, affected facilities would be required to meet specified monitoring, recordkeeping, and reporting requirements. See Effluent Limitation Guidelines and NSPS Proposed for Airport Deicing Operations.
Business and the Environment
The September 2009 issue of the Business and the Environment newsletter
included nine stories on sustainable development and five stories on recent
climate change developments.
HOT TOPICS include:
- Climate Change Impacting the United States—According
to a new report from the U.S. Global Change Research Program, man-made
climate change is already impacting the United States, and its effects
will get much worse in the coming century. Climate-related changes already
observed include higher air and water temperatures; fewer frost days;
more and heavier downpours; sea level rise; reduced snow cover, glaciers,
permafrost, and sea ice; more ice-free days on lakes and rivers; longer
growing seasons; and more water vapor in the air. Some changes have
outpaced previous assessments. See Climate Change Is Here.
Go to http://hr.cch.com/environmental/ for more information on the Environmental Compliance Portfolio.
Analysis added to the Environmental Compliance Portfolio
in September 2009
Air Quality Compliance Materials and Tools
Air Quality Regulatory Analysis Articles
NESHAP/MACT
Area Source Standards Proposed for
the Chemical Preparations Industry
On August 5, 2009 (74 FR 39013–39031), EPA proposed national emission
standards for the chemical preparations source category. The proposed
generally available control technology (GACT) standards would apply to
facilities that are area sources and produce chemical preparations by
mixing, milling, blending, and/or extruding chemical compounds containing
target hazardous air pollutants (HAPs). The proposed rule would require
all process vent streams from mixing, blending, milling, and extruding
equipment to be routed to a control device that achieves a 95% particulate
matter control efficiency when the equipment is processing materials containing
chromium, manganese, nickel, or lead. Continuous monitoring of control
device operating parameters would be required in order to demonstrate
that the emission control equipment meets the control efficiency standard.
New Guidance Issued on MACT Compliance
During Start-up, Shutdown, and Malfunction Events
In an April 20, 2006 final rule (71 FR 20446), EPA greatly diminished
the regulatory significance of the start-up, shutdown, and malfunction
plans (SSMPs) required under 40 CFR Part 63 maximum achievable control
technology (MACT) standards. The final rule revised the MACT general provisions
(Part 63, Subpart A), numerous Part 63 MACT standards, and the Part 65
consolidated federal air rule such that facilities were no longer required
to follow their written SSMP during periods of start-up, shutdown, or
malfunction. In a December 19, 2008 decision, the U.S. Court of Appeals
for the District of Columbia Circuit vacated the April 20, 2006 rulemaking
(Sierra Club v. EPA, 551 F.3d 1019 [D.C. Cir. 2008]). On August 26, 2009
(74 FR 43124), EPA announced the availability of a letter in which the
agency addressed concerns that have been raised regarding the impact of
the court’s decision. According to the agency, the court’s
decision immediately affects only those MACT standards that incorporate
by reference the MACT general provision exemption for periods of start-up,
shutdown, and malfunction, and contain no other regulatory text exempting
or excusing compliance during start-up, shutdown, and malfunction events.
NSPS/Emission Guidelines
Proposed Rule Would Revise Stack Gas
Velocity Test Method
On August 25, 2009 (74 FR 42819–42831), EPA proposed to revise the
agency’s test method for determining stack gas velocity taking into
account velocity decay near stack or duct walls. The proposed revisions
to EPA Method 2H, “Determination of Stack Gas Velocity Taking Into
Account Velocity Decay Near the Stack Wall,” address flow measurement
locations for stacks or ducts that have circular or rectangular cross
sections. In addition, the proposed changes would increase the accuracy
of the method and simplify its application.
Emission Standards Proposed for New
Large Compression-Ignition Marine Engines
On August 28, 2009 (74 FR 44442–44595), EPA proposed more stringent
emission standards for large marine diesel engines used for propulsion
on oceangoing vessels. The proposed standards would apply to new marine
diesel engines installed on U.S. vessels with per cylinder displacement
=30 liters (Category 3 marine diesel engines), and are equivalent to the
nitrogen oxides (NOx) limits recently adopted in the amendments to Annex
VI to the International Convention for the Prevention of Pollution from
Ships (MARPOL Annex VI). The near-term standards for newly built engines
would apply beginning in 2011. Long-term standards would apply to newly
built engines beginning in 2016, and are based on the use of high-efficiency
after-treatment technology.
State Implementation Plans
Obtaining RFP Credits for Emission
Reductions Outside Ozone Nonattainment Areas
On August 11, 2009 (74 FR 40074–40083), EPA took final action to
revise a portion of the agency’s Phase 2 implementation rule for
the eight-hour ozone national ambient air quality standard (NAAQS). Specifically,
the final rule addresses a portion of the Phase 2 implementation rule
that allowed emission reductions from outside the nonattainment area to
be credited toward reasonable further progress (RFP) for the eight-hour
standard. When an area has been designated nonattainment, one requirement
that accompanies such a designation is that the state provide an attainment
plan that demonstrates reasonable progress toward meeting the NAAQS. If
a state claims RFP credit toward the eight-hour ozone NAAQS for emission
reductions that occur outside a nonattainment area, EPA expects the state’s
RFP demonstration to take into account not only emission reductions, but
also all other emission changes in the area being included in the RFP
demonstration.
EPA to Issue Federal Plans Implementing
BART at Two Power Plants
On August 28, 2009 (74 FR 44313–44334), EPA issued an advanced notice
of proposed rulemaking (ANPR) providing anticipated visibility improvement
and cost effectiveness associated with different levels of emission controls
that could represent best available retrofit technology (BART) at two
power plants located in the southwestern United States: the Four Corners
Power Plant and Navajo Generating Station, both located on the Navajo
Nation. Through the ANPR, the agency intends to collect additional information
that may be considered in modeling the degree of anticipated visibility
improvement in federal Class I areas near the two power plants. For both
power plants, the August 28, 2009 ANPR provides summary data related to:
1) emission control costs and cost effectiveness, 2) the degree of visibility
associated with various control scenarios, 3) energy and non-air quality
impacts, 4) existing controls at each facility, and 5) the remaining useful
life of each facility. After reviewing the information received in response
to the ANPR, EPA intends to propose federal implementation plans (FIPs)
addressing BART requirements for the power plants.
Reviews of Court Decisions and Consent Decrees
NOx SIP Call Not a Substitute for Area-Specific
RACT Requirement
In a July 10, 2009 decision, the U.S. Court of Appeals for the District
of Columbia Circuit ruled that participation in a regional cap-and-trade
program does not fulfill the CAA mandate that reasonably available control
technology (RACT) be required for sources located in an ozone nonattainment
area (Natural Resources Defense Council v. EPA, No. 06-1045 [D.C. Cir.
July 10, 2009]). In an April 30, 2004 rulemaking (69 FR 23951), EPA determined
that a source’s participation in the agency’s region-wide
cap-and-trade program for nitrogen oxides (NOx) was equivalent or better
than installing RACT. However, because participation in the region-wide
cap-and-trade program would not necessarily mean that emission reductions
will occur within the specific nonattainment area where the source is
located, the court held that a source’s participation in the regional
cap-and-trade program could not be substituted for the area-specific statutory
mandate.
State Enforcement Action Constitutes
Diligent Prosecution and Preempts a CAA Citizen Suit
In a July 23, 2009 decision, the U.S. District Court for the District
of Delaware ruled that an enforcement action by the Delaware Department
of Natural Resources and Environmental Control (DNREC) constituted “diligent
prosecution,” thus preempting the CAA citizen suit (Citizens for
Clean Power v. Indian River Power, No. 09-125-SLR [D. Del. July 23, 2009]).
In the decision, the federal district court concluded that a government
agency can choose to settle with a violator, even though some citizens
might prefer more stringent terms than the government finds appropriate
in a particular case.
District Court Finds State Cannot Be
Sued Under CAA Section 304 for Failure to Enforce a Standard
In a July 29, 2009 decision, the U.S. District Court for the Southern
District of Ohio ruled that the citizen suit provisions in CAA Section
304 do not allow suits against a state agency for failure to enforce emission
standards (Sierra Club v. Korleski, No. 2:08-cv-865 [S.D. Ohio July 29,
2009]). According to the court, only the U.S. EPA can be sued under Section
304 for failure to enforce an emission standard. A state agency can only
be sued under the CAA citizen suit provisions if the agency is itself
an emission source that violates an emission standard. The federal district
court acknowledged that other courts have interpreted the CAA provision
at issue as allowing suits against state and local governments for failure
to enforce a state implementation plan (SIP). Nonetheless, the court concluded
that a citizen suit is authorized against the state only as a polluter.
According to the court, the statute does not authorize a suit against
the state as a regulator who fails to enforce the Act.
EPA Announces Largest Audit Policy
Settlement
Under a proposed consent decree lodged with the U.S. District Court for
the District of Delaware, INVISTA S.á r.l. will pay a $1.7 million
civil penalty and spend up to $500 million to correct self-reported environmental
violations (United States v. INVISTA S.à r.l., Civil Action Number
1:09-cv-00244 [D. Del. lodged Apr. 13, 2009]). INVISTA had discovered
the violations during self audits at facilities in seven states that the
company had acquired in April 2004. The company reported the violations
to EPA in accordance with the agency’s audit policy, which is designed,
in part, to encourage the owners of newly acquired facilities to make
“clean starts.” The settlement is the largest to date under
EPA’s audit policy.
EPA’s Nonattainment Designations
for Fine Particulate Matter Upheld
In a July 7, 2009 decision, the U.S. Court of Appeals for the District
of Columbia Circuit upheld EPA’s nonattainment designations for
fine particulate matter for all but one of 225 nonattainment areas (Catawba
County v. EPA, No. 05-1064 [D.C. Cir. July 7, 2009]). In the case, several
states, counties, and industrial entities challenged EPA’s promulgation
of area designations for PM-2.5 (particulate matter with an aerodynamic
diameter =2.5 microns). The petitioners challenged the procedure used
to make the nonattainment designations, EPA’s authority to adopt
and implement the methodology followed, and the methodology itself. They
also requested that the court vacate certain area designations as arbitrary
and capricious. With the exception of one area (Rockland County, New York),
the court denied these requests, finding that EPA’s decisions were
reasonable, and should be afforded considerable deference.
Hazardous Waste Compliance Materials and Tools
Analysis of Major Hazardous Waste Compliance Issues
Emergency Planning and Community Right-to-Know Act (EPCRA)
TRI Update—Preliminary 2008 Data
Released and FAQs Updated
In August 2009, EPA released early data gleaned from the 2008 national
toxics release inventory (TRI) data. Facilities were required to submit
the data by July 1, 2009, and the agency estimates that the early data
release contains 94% of the submitted data. This is the first time TRI
data have been provided so early in the TRI processing cycle and, while
noting that the data sets are preliminary, the agency believes that some
entities may wish to review and analyze the data. EPA also provides an
extensive database of frequently asked questions (FAQs) regarding TRI
requirements.
Hazardous Waste Regulatory Analysis Articles
CERCLA
Groundwater Restoration Policies Under
CERCLA
EPA has issued a memorandum that discusses the agency’s key policies
for groundwater restoration under CERCLA. The purpose of the memorandum
is to provide a compilation of some key existing EPA groundwater policies
to help EPA regions make groundwater restoration decisions pursuant to
CERCLA and the National Oil and Hazardous Substances Pollution Contingency
Plan. The agency also hopes that providing this information will improve
the transparency and understanding of EPA’s cleanup decisions related
to groundwater.
First CERCLA Public Health Emergency
Issued for Libby Asbestos Site
On June 17, 2009, EPA issued the first public health emergency under CERCLA.
The public health emergency applies to the Libby Asbestos Site, which
includes the towns of Libby and Troy in Lincoln County, Montana, and an
inactive vermiculite mine located seven miles northeast of Libby. The
agency issued the public health emergency pursuant to CERCLA Section 104(a)(4)
based on its assessment that, despite ongoing cleanup activities, there
continues to be a significant ongoing threat to public health from exposure
to asbestos in the area.
Recovery Act Funds Will Accelerate
Superfund Cleanups
The American Recovery and Reinvestment Act of 2009, in part, provides
an appropriation of $600 million for Superfund remedial activities. EPA
will use the stimulus funds to accelerate ongoing cleanup activities,
or initiate new construction projects, at 51 Superfund sites across the
United States. The Recovery Act funds designated for Superfund sites will
be used to provide immediate short- and longer-term health, environmental,
and economic benefits at both new start and ongoing remedial projects.
Emergency Planning and Community Right-to-Know Act (EPCRA)
Clarification of TRI Articles Exemption
Proposed
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. However,
EPCRA provides several exemptions from the reporting requirements. On
August 24, 2009 (74 FR 42625–42631), EPA proposed two changes to
the toxics release inventory (TRI) articles exemption. The proposed changes
would: 1) formally remove a paragraph of guidance that was included in
the TRI reporting forms and instructions from 1988–2001, which EPA
believes is being improperly applied; and 2) interpret how the articles
exemption applies to the wood treating industry, specifically to treated
wood that has completed the treatment process.
Wastewater and Water Quality
Compliance Materials and Tools
Analysis of Major Wastewater and Water Quality Compliance Issues
Wastewater
Effluent Limitation Guidelines and
NSPS Proposed for Airport Deicing Operations
On August 28, 2009 (74 FR 44676–44718), EPA proposed effluent limitation
guidelines and new source performance standards (NSPS) for discharges
from airport deicing operations. The proposed rule would establish national
standards for wastewater discharges associated with the deicing of aircraft
and airfield pavement at primary commercial airports. Primary commercial
airports are those that have more than 10,000 passenger boardings each
year. Primary airports are further subdivided into large hub, medium hub,
small hub, and non-hub classifications. EPA estimates that 218 primary
airports will be regulated under the proposed rule. Under the August 28,
2009 proposed rule, affected airports would be required to: 1) collect
at least a specified proportion (either 20% or 60%) of available aircraft
deicing fluid after it is sprayed on aircraft; 2) meet a specified numeric
effluent limit for aircraft deicing fluid wastewater collected and discharged
on site; and 3) certify that it uses airfield pavement deicers that do
not contain urea. In addition, affected facilities would be required to
meet specified monitoring, recordkeeping, and reporting requirements.
Water Quality
Additional Comment Sought on Regulating
Perchlorate
In an October 10, 2008 notice (73 FR 60262), EPA presented its preliminary
regulatory determination for perchlorate. In the notice, the agency indicated
that a national primary drinking water regulation for perchlorate would
not present a meaningful opportunity for health risk reduction for people
served by public water systems. On August 19, 2009 (74 FR 41883–41893),
EPA announced that it was seeking comments on additional approaches to
analyzing data related to the agency’s perchlorate regulatory determination.
In the August 19, 2009 notice, the agency indicates that its final decision
may be a determination to regulate.
Additional Data Available on Geologic
Sequestration of Carbon Dioxide
On August 31, 2009 (74 FR 44802–44813), EPA announced the availability
of, and requested comment on, additional data and information related
to the agency’s proposed regulations on the underground injection
of carbon dioxide (CO2) for geologic sequestration. The agency proposed
requirements under the Safe Drinking Water Act (SDWA) for the underground
injection of CO2 for the purposes of geologic sequestration on July 25,
2008 (73 FR 43492). Geologic sequestration of CO2 is one option being
developed to reduce CO2 emissions and help mitigate climate change. The
August 31, 2009 proposed rule describes preliminary field data from U.S.
Department of Energy-sponsored Regional Carbon Sequestration Partnership
projects, the results of geologic sequestration-related studies conducted
by the Lawrence Berkeley National Laboratory, and additional geologic
sequestration-related research. In addition, the proposed rule presents
an alternative being considered related to the Class VI injection depth
requirements that were included in the July 25, 2008 proposed rule.
Business and the Environment
The September 2009 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:
Focus Report
• Climate Change Is Here
Perspectives
• Sustainability & Stewardship — The Babson Way
Corporate Reporting
• Reporting “Green” and Wisely
• Reports Show Companies Lack Climate Risk Awareness
Corporate Initiatives
• Publisher Goes Green
• Warning Issued to Businesses and Investors
• The Car of the Future
• Financial Times Hosts Two Events
Product Stewardship and Takeback
• Bottles Slim Down
• “Liquid Wood” Could Ease World’s Dependence
on Plastic
ISO Update
• Environmental Claims: A Guide for Industry and Advertisers (Part
1)
Climate Change Update
• Higher Temperature Turns Carbon Sinks Into Sources
• Climate Warming Means Food Shortages, Study Warns
• PG&E Buys Dairy Farm Emission Reduction Credits