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June 2011
During May 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 May 2011
Air Quality Compliance Materials and Tools
Acid Rain
Acid Rain Program Emission Testing Requirements Revised
In a March 28, 2011 final rule (76 FR 17288–17325), EPA revised the acid rain program protocol gas verification program and the minimum competency requirements for emission testing bodies. In addition, the agency has proposed to amend other sections of the acid rain program continuous monitoring regulations by: 1) adding and clarifying certain recordkeeping and reporting requirements, 2) removing certain requirements associated with a class-approved alternative monitoring system, 3) disallowing the use of a particular quality assurance option in EPA Method 7E, 4) adding two incorporations by reference that were inadvertently omitted, and 5) clarifying the language and applicability of certain provisions. The final rule also removes the provisions pertaining to mercury monitoring and reporting, and adds two new definitions.
NSPS/Emission Guidelines
Emission Standards for Hospital, Medical, and Infectious Waste Incinerators Revised
On April 4, 2011 (76 FR 18407–18415), EPA revised the new source performance standards (NSPS) and emission guidelines for hospital, medical, and infectious waste incinerators (HMIWI). The final rule corrects inadvertent drafting errors in the nitrogen oxides (NOx) and sulfur dioxide (SO2) emission limits in the NSPS for large HMIWI. In addition, the final rule clarifies that compliance with the emission guidelines must be expeditious if a compliance extension is granted, and corrects the inadvertent omission of delegation of authority provisions in the emission guidelines. The final rule also makes a number of other clarifications and corrections to the NSPS and emission guidelines for HMIWI.
PSD/NSR Permitting
NSR Provisions Addressing Fugitive Emissions Stayed Indefinitely
In a December 19, 2008 (73 FR 77882) final rule, EPA revised its policy on how fugitive emissions are counted toward emissions associated with physical or operational changes (i.e., modifications). Under the December 19, 2008 final rule, fugitive emissions are counted only for emission units or sources in the source categories listed in the definition of “major stationary source” in the NSR regulations. On March 30, 2011 (76 FR 17548–17556), EPA extended indefinitely the stay of the December 19, 2008 rulemaking, and restored the PSD and NSR regulations back to the regulatory text that existed prior to the December 19, 2008 rulemaking.
State Implementation Plans
EPA Proposes CAA Section 126 Finding Applicable to a Single Source
On April 7, 2011 (76 FR 19662–19681), EPA proposed to make a finding that sulfur dioxide (SO2) emissions from a coal-fired power plant in Pennsylvania interfere with attainment or maintenance with national ambient air quality standards (NAAQS) in New Jersey. In the action, the agency has proposed to grant a CAA Section 126 petition from New Jersey, and find that emissions from the Portland Generating Station in Pennsylvania significantly contribute to nonattainment or interfere with maintenance of the one-hour SO2 NAAQS in New Jersey. EPA has also proposed to allow the continued operation of the plant, and to establish source-specific emission limits and a compliance schedule to bring emissions from the plant into compliance with the CAA prohibition on emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS.
EPA Common Control Determination Not a “Final Agency Action” Eligible for Judicial Review
In a February 2, 2011 decision, the U.S. Court of Appeals for the Third Circuit ruled that an EPA determination that two facilities were under common control for the purposes of Title V permitting was not subject to judicial review because it was not a “final agency action” (Ocean County Landfill Corp. v. EPA Region II, No. 09-2937 [3rd Cir. Feb. 2, 2011]). At issue in the case was an EPA determination that a municipal solid waste landfill and adjacent gas-to-energy facility are under common control for the purposes of CAA Title V permitting. In the decision, the court concluded that EPA’s letter finding that the two facilities were under common control was not a final action reviewable by the court, but was merely the culmination of one part of the permitting process.
Court Remands EPA Approval of South Coast Ozone SIP
In a February 2, 2011 decision, the U.S. Court of Appeals for the Ninth Circuit granted a petition for review, and remanded EPA’s partial approval of revisions to California’s state implementation plan (SIP) (Association of Irritated Residents v. EPA, No. 09-71383 [9th Cir. Feb. 2, 2011]). At issue in the case were SIP provisions that are part of the ozone attainment plan for the South Coast Air Basin. In the decision, the court concluded that, instead of approving California’s 2003 SIP revision, the agency should have required the state to submit a revised attainment plan.
Hazardous Waste Compliance Materials and Tools
Directories
2011 Directory of U.S. Commercial Recycling Facilities
The 2011 Directory of U.S. Commercial Recycling Facilities provides a list of facilities by state, an index to the facilities by company name, and an index to the facilities by the type of material recycled. The facilities can handle one or more of a variety of recyclable materials, including: aqueous solutions/wastes, batteries, characteristic hazardous wastes, chemicals, commercial chemical/off-specification products, computers/cathode ray tubes (CRTs)/electronics, dry cleaning solvent, electric arc furnace dust (K061 wastes), explosives, fuels, inorganic wastes, lamps/ballasts/bulbs, lead wastes, liquid hazardous wastes, listed hazardous wastes, mercury wastes, metals/metal wastes/toxicity characteristic leaching procedure (TCLP) toxic metals/scrap metal, organic wastes, other wastes, paint wastes, polychlorinated biphenyls (PCBs), pesticides, photochemical wastes, reactives, refrigerants, sludges/solids, soil, solder dross, solvents/spent solvents, spent activated carbon, spent sorbents, still bottom wastes, used oil/waste oil/oily wastes, waste acids/waste caustics, and wastewaters.
Emergency Planning and Community Right-to-Know Act (EPCRA)
EPA Proposes Revised EPCRA Section 302 Methodology for Non-Reactive Solid EHSs
EPCRA Section 302 requires EPA to promulgate a list of extremely hazardous substances (EHSs). State and local emergency response authorities must be notified when an EHS is present at a facility in excess of its threshold planning quantity (TPQ), and if a release of an EHS exceeds its reportable quantity or migrates beyond the facility boundary. On April 15, 2011 (76 FR 21299–21311), EPA proposed revising the method used to calculate the quantity of certain EHSs for purposes of determining whether the applicable TPQ is exceeded. The method would apply to EHSs that are non-reactive solids in solution form. As proposed, if a facility has a solid EHS in solution, it would be subject to the emergency planning requirements only if the amount of the solid chemical onsite, when multiplied by 0.2, equals or exceeds the lower applicable TPQ.
Reasonable Fear of Contamination Can Establish Standing for RCRA Suit
On January 3, 2011, the U.S. District Court for the Middle District of Tennessee ruled that actual contamination in a well is not required to bring a citizen lawsuit under RCRA (Natural Resources Defense Council Inc. v. County of Dickson, No. 3:08-0229 [M.D. Tenn. Jan. 3, 2011]). The County of Dickson, Tennessee argued that the Natural Resources Defense Council (NRDC) did not have standing to bring the lawsuit, as the only NRDC member identified as having standing had not suffered an “injury in fact.” However, the district court disagreed, and concluded that the defendant’s arguments on standing were “meritless.” The court also determined that “reasonable fear” that contamination will pose a threat to human health or the environment is adequate to establish standing for a RCRA citizen lawsuit.
Appeals Court Reinstates Suit, Finding No Conflict With Puerto Rico's UST Program
In a case of first impression, the U.S. Court of Appeals for the First Circuit ruled January 26, 2011 that a district court erred when it dismissed a RCRA citizen suit on the grounds that it would have interfered with Puerto Rico’s regulation of underground storage tanks (USTs) (Chico Service Station, Inc. v. Sol Puerto Rico Ltd., No. 10-1200 [1st Cir. Jan. 26, 2011]). The appeals court concluded that the district court had misplaced its reliance on the U.S. Supreme Court’s decision in Burford v. Sun Oil (319 U.S. 315 [1943]) when it decided to abstain from the current case. In Burford, the concern was to prevent federal courts from bypassing a state agency. However, the appeals court noted that it is rare for a federal court to abstain from the duty to exercise jurisdiction, particularly for citizen suits brought under RCRA. The appeals court concluded that the present case did not exhibit the exceptional circumstances that could justify abstention and, accordingly, vacated the judgment of the district court.
Wastewater and Water Quality Compliance Materials and Tools
Wastewater
NPDES Requirements Proposed for Existing Cooling Water Intake Structures
On April 20, 2011 (76 FR 22174–22288), EPA proposed new standards for cooling water intake structures to ensure that the location, design, construction, and capacity reflect the best technology available to minimize harmful impacts on fish and other aquatic life. The proposed standards apply to existing power plants and manufacturing facilities that: 1) withdraw more than 2 million gallons of water per day from waters of the United States, and 2) use at least 25% of the water they withdraw exclusively for cooling purposes. The proposed rule would set an upper limit on impingement mortality (i.e., how many fish can be killed by being pinned against intake screens or other parts of the facility). Alternatively, affected facilities could reduce the cooling water intake velocity to 0.5 feet per second or less. Existing facilities that withdraw at least 125 million gallons per day would be required to conduct studies to help determine what site-specific controls would be appropriate to help reduce entrainment mortality (i.e., the number of aquatic organisms sucked into cooling water systems). Finally, the proposed rule would require new units at an existing facility (e.g., units that add capacity at an existing power plant) to add technology that is equivalent to closed-loop cooling. EPA estimates that the proposed rule would affect approximately 1,260 existing facilities. Of these, about 670 facilities are power plants and 590 are manufacturing facilities.
Revised General Permit Proposed for Construction Industry Storm Water Discharges
On April 25, 2011 (76 FR 22882–22891), EPA proposed a revised National Pollutant Discharge Elimination System (NPDES) permit for storm water discharges from construction activities. The proposed construction general permit incorporates new requirements from the effluent limitations guidelines and new source performance standards (NSPS) for the construction and development industry. The proposed general permit would apply to construction and development projects in areas where EPA is the NPDES permitting authority. These areas include New Hampshire, Massachusetts, New Mexico, Idaho, Puerto Rico, the District of Columbia, most Indian country lands, and the Pacific Island territories. EPA is also the permitting authority for other areas or facilities that are not covered under an approved state NPDES program.
Court Decisions
The following court decisions were added in May 2011:
News
Business and the Environment
The May 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