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September 2011
During August 2011, over 100 pages of analysis and other materials were added to the Environmental Compliance Portfolio under the following topics:
Air Quality Compliance
—Air Quality Regulation Changes Smart Chart, and
—Federal Greenhouse Gas Reporting Smart Chart.
To access the practice tools, go to Practice Tools > Environmental Compliance.
Hazardous Waste Compliance
—Identifying RCRA Hazardous Wastes.
To access the practice tool, go to Practice Tools > Environmental Compliance.
Wastewater and Water Quality Compliance
Business and the Environment
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 2011
Air Quality Compliance Materials and Tools
NESHAP/MACT
EPA Withdraws Residual Risk and Technology Reviews for Petroleum Refinery MACT
On July 18, 2011 (76 FR 42052–42055), EPA withdrew its prior rulemaking addressing residual risk and technology reviews for the petroleum refinery maximum achievable control technology (MACT) standards in 40 CFR Part 63, Subpart CC. The residual risk and technology reviews were included in a final rule signed by the EPA Administrator on January 16, 2009, and addressed MACT for petroleum refinery heat exchange systems and residual risk for all sources subject to the Subpart CC petroleum refinery MACT. The January 16, 2009 signed rule was subsequently withdrawn from the Office of the Federal Register, and was never published, although it had been made available on EPA’s Web site. The agency has determined that the residual risk and technology review portions of the final rule signed on January 16, 2009 may not accurately reflect the risk posed by the petroleum refinery source category. Accordingly, the residual risk and technology reviews that were included in the January 16, 2009 rulemaking have been withdrawn.
NSPS/Emission Guidelines
NSPS for Large Stationary Diesel Engines Revised
On June 28, 2011 (76 FR 37954–37978), EPA revised the new source performance standards (NSPS) for large stationary compression ignition engines. Specifically, the final rule establishes more stringent emission standards for new stationary compression-ignition engines with a displacement of 10 liters or more per cylinder and less than 30 liters per cylinder. In addition, the final rule revises the standards for stationary compression-ignition engines with a displacement of 30 liters or more per cylinder to align those standards more closely with emission standards for similar size nonroad diesel engines used in marine applications. The final rule also revises the NSPS for spark-ignition internal combustion engines to mirror certain revisions in the NSPS for compression-ignition engines, and to correct minor errors.
PSD/NSR Permitting
Minor New Source Review Program Issued for Sources in Indian Country
In a July 1, 2011 final rule (76 FR 38748–38808), EPA established a new source review (NSR) program for emission sources located in Indian country. The NSR regulations for sources in Indian country include two distinct programs. The first program applies to minor stationary sources and minor modifications at major stationary sources. The second program applies to new major sources and major modifications to existing major sources located in areas of Indian country that have been designated nonattainment for national ambient air quality standards (NAAQS). The final rule fills a regulatory gap that currently exists for sources located in Indian country. Until now, there was no permitting mechanism in most of Indian country for new or modified minor sources, minor modifications at major sources, or new major stationary sources or major modifications at existing major stationary sources of regulated NSR pollutants in nonattainment areas.
Stratospheric Ozone Protection
EPA Proposes to Extend Laboratory Use ODS Exemption Until December 31, 2014
On July 15, 2011 (76 FR 41747–41751), EPA proposed to extend the laboratory and analytical use exemption for the production and import of Class I ozone-depleting substances (ODS) through December 31, 2014. The production and import of Class I ODS is generally prohibited under the Montreal Protocol on Substances that Deplete the Ozone Layer. The current laboratory use exemption will expire December 31, 2011.
Other Issues
EPA Interpretations of NSPS, NESHAP, and MACT Requirements
EPA frequently receives questions from industry, state agencies, and other affected parties concerning how 40 CFR Part 60 new source performance standards (NSPS), Part 61 national emission standards for hazardous air pollutants (NESHAP), and Part 63 maximum achievable control technology (MACT) standards apply to specific situations. The agency memoranda responding to these questions are generally termed applicability determinations, alternative monitoring decisions, or regulatory interpretations. The memoranda issued by the agency can provide valuable insight into how EPA interprets and applies these regulations. The summaries in this article are presented in a question-and-answer format, and have primarily been prepared from EPA’s abstracts for the memos.
Renewable Fuel Standards for 2012 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. On July 1, 2011 (76 FR 38844–38890), 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 2012. In addition, the agency proposed a projected cellulosic biofuel volume for 2012, and an applicable volume of biomass-based diesel that would apply in 2013.
Permitting Requirements Deferred for CO2 Emissions From Bioenergy/Biogenic Sources
On July 20, 2011 (76 FR 43490–43508), EPA deferred for three years prevention of significant deterioration (PSD) and CAA Title V permitting requirements for carbon dioxide (CO2) emissions from bioenergy and other biogenic stationary emission sources. Under the final rule, CO2 emissions from bioenergy and other biogenic sources are not considered when determining whether a stationary source meets PSD and Title V applicability thresholds, including those for applying best available control technology (BACT). The emissions covered under the deferral include CO2 derived from the combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material. In addition, PSD and Title V permitting have been deferred for CO2 emissions from the combustion of biogas collected from the biological decomposition of waste in landfills, wastewater treatment, or manure management processes. The deferral applies until July 21, 2014, and covers only CO2 emissions. The deferral does not affect the consideration of non-greenhouse gas pollutants or other greenhouse gases in PSD and Title V permitting.
Court Upholds EPA Approval of Baseline Motor Vehicle Emission Budgets
In a March 30, 2011 decision, the U.S. Court of Appeals for the Ninth Circuit upheld EPA’s approval of South Coast Air Basin baseline motor vehicle emission budgets for use in transportation conformity determinations (Natural Resources Defense Council v. EPA, No. 08-72288 [9th Cir. Mar. 30, 2011]). In the case, it was argued that EPA should not have approved the emission budgets as meeting reasonable further progress requirements because the agency had disapproved California’s plan for attaining the national ambient air quality standards (NAAQS). In the decision, the court found that EPA’s interpretation of statutory requirements was reasonable, and that the agency could indeed approve the emission budgets in question as meeting reasonable further progress requirements independently of disapproving the state’s attainment plan.
Court Dismisses Challenge to California Motor Vehicle Greenhouse Gas Emission Standards
In an April 29, 2011 decision, the U.S. Court of Appeals for the District of Columbia Circuit dismissed a petition seeking to overturn California’s greenhouse gas emission standards for motor vehicles (Chamber of Commerce v. EPA, No. 09-1237 [D.C. Cir. Apr. 29, 2011]). In the case, the U.S. Chamber of Commerce and the National Automobile Dealers Association sought judicial review of an EPA rulemaking that granted a waiver from CAA preemption requirements for California’s motor vehicle emission standards. Under CAA Section 209, California can establish its own motor vehicle emission standards, provided certain criteria are met. In the April 29, 2011 decision, the court found that the future harms that the plaintiffs argued they would incur were subjective, and that federal motor vehicle emission standards taking effect in model year 2012 rendered the plaintiffs’ claims regarding model years 2012–2016 moot.
Supreme Court Dismisses Suit Alleging Greenhouse Gas Emissions Are a Nuisance
On June 20, 2011, the U.S. Supreme Court ruled that the CAA preempts a common law nuisance suit seeking to limit greenhouse gas emissions from power plants (American Electric Power v. Connecticut, No. 10-174 [U.S. June 20, 2011]). In the case, it was argued that emissions from power plants substantially and unreasonably interfered with public rights, in violation of the federal common law of interstate nuisance. The plaintiffs sought a decree setting a cap on carbon dioxide (CO2) emissions for each defendant that would be further reduced annually. In the decision, the Supreme Court held: “The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil fuel-fired power plants.” According to the court, Congress has delegated to EPA the decision of whether and how to regulate CO2 emissions from power plants. That delegation displaces federal common law.
California Air District Rules Regulating Stationary Diesel Engines Not
Preempted By Federal Law
In a May 27, 2011 decision, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s decision finding that California air district regulations setting emission standards for stationary diesel engines are not preempted by federal law (Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control District, No. 09-16790, 9th Cir. May 27, 2011). The appeals court concluded that two of the air district’s rules were not emission standards, meaning they are not preempted by the CAA. The third rule was not preempted because it does not apply to nonroad engines as defined in the CAA.
Netting Under the NSR Reform Rules—Part 3: When “Actual” Does Not Mean “Actual”
In this article, Gary McCutchen, Gary Saini, and Colin Campbell return to the topic of netting under the new source review (NSR) reform rule. As they explain, a netting analysis remains one of the most complex parts of prevention of significant deterioration (PSD) permitting. The most recent EPA guidance on netting has only complicated the netting analysis calculations and increased uncertainty, and presents significant challenges for sources.
Hazardous Waste Compliance Materials and Tools
Emergency Planning and Community Right-to-Know Act (EPCRA)
Determining Whether a Facility’s NAICS Code Is a TRI-Covered Industry
Under EPCRA Section 313, certain facilities that manufacture, process, or otherwise use certain toxic chemicals in excess of specified threshold quantities must annually report environmental releases of the chemicals. The data must be provided annually on a toxics release inventory (TRI) reporting form (e.g., Form R). EPCRA originally required TRI reporting using four-digit standard industrial classification (SIC) codes. However, beginning with the TRI reporting forms for the 2006 reporting year, facilities had to report the applicable North American industry classification system (NAICS) code. Recently, EPA established a Web site at http://www.epa.gov/tri/lawsandregs/naic/ncodes.htm that is designed to help companies determine whether their facility’s NAICS code is a TRI-covered industry.
Guidance, Reports, Policy, Programs
Final Guidance Issued for Ethanol and Biodiesel USTs
On July 5, 2011 (76 FR 39095–39101), EPA issued final guidance for underground storage tanks (USTs) that are used to store gasoline blended with more than 10% ethanol, or diesel blended with more than 20% biodiesel. The guidance explains how owners and operators of these USTs (collectively referred to as “UST owners”) can demonstrate compliance with the federal compatibility requirement for their UST systems. EPA notes that the guidance does not impose any legally binding requirements, and does not modify, or substitute for, regulations or statutory provisions that are legally binding. The guidance applies to USTs that are regulated under 40 CFR Part 280.
RCRA Programs
EPA Withdraws Transfer of LDR Treatability Variance for Selenium-Bearing Waste
In a direct final rule issued on April 6, 2011 (76 FR 18921), EPA transferred a land disposal restrictions (LDR) treatability variance from Chemical Waste Management, Inc. (Kettleman Hills, California) to U.S. Ecology Nevada (Beatty, Nevada). The variance applied to selenium-bearing waste generated by the Owens Brockway Container Glass Company (Vernon, California). However, on May 24, 2011 (76 FR 30027), EPA announced that it was withdrawing the direct final rule in response to adverse comments. The withdrawal affects 40 CFR Part 268.
District Court Finds Failure to Report Suspicions of Dumping Could Make Former Owner Liable
In a March 14, 2011 decision, the U.S. District Court for the Western District of New York ruled that the former owner of a company that had leased contaminated property may be liable under the New York Navigation Law for failing to report suspected past dumping, or for failing to take action to remediate the contamination (Emerson Enterprises LLC v. Kenneth Crosby NY LLC, No. 03-CV-6530 CJS [W.D.N.Y. Mar. 14, 2011]). Even though there was no evidence that dumping occurred while he owned the property, and the owner told employees not to dump waste, the court found the owner may still be liable. However, the past owner was found not liable under CERCLA, RCRA, and the New York Environmental Conservation Law.
Appeals Court Finds State Enforcement Action No Bar to RCRA Citizen Suit
In a May 3, 2011 decision, the U.S. Court of Appeals for the Seventh Circuit ruled that a RCRA citizen suit may proceed, even though a state agency filed enforcement actions, including state court lawsuits, against the same alleged violators before and after the citizen suit was filed (Adkins v. VIM Recycling Inc., No. 10-2237 [7th Cir. May 3, 2011]). The current case examined when a citizen suit is precluded by a government enforcement suit, and how RCRA interacts with the abstention doctrines stated in Colorado River Water Conservation Dist. v. United States (424 U.S. 800 [1976]) and Burford v. Sun Oil (319 U.S. 314 [1943]). The appeals court concluded that the district court abused its discretion in abstaining based on the U.S. Supreme Court’s decisions in Colorado River and Burford. Accordingly, the Seventh Circuit reversed the district court’s decision, and remanded the case to allow the plaintiffs to pursue their citizen suit.
Wastewater and Water Quality Compliance Materials and Tools
Court Decisions
The following court decisions were added in August 2011:
News
Business and the Environment
The August 2011 issue of Business and the Environment newsletter included the following articles on sustainable development and climate change:
Focus Report
Perspectives
Corporate Reporting
Corporate Initiatives
Product Stewardship and Takeback
ISO Update
Climate Change Update