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November 2011
During October 2011, over 100 pages of analysis and other materials were added to the Environmental Compliance Portfolio under the following topics:
Air Quality Compliance
—141 entries added to the keyword index,
—60 entries added to the citation index, and
—39 entries added to the industry index.
—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
—40 entries added to the keyword index,
—12 entries added to the citation index, and
—5 entries added to the industry index.
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 October 2011
Air Quality Compliance
NAAQS
EPA Retains Current Carbon Monoxide Ambient Air Quality Standards
In an August 31, 2011 final rule (76 FR 54294–54343), EPA has decided to retain the current national ambient air quality standards (NAAQS) for carbon monoxide (CO). The current CO NAAQS were promulgated on April 30, 1971, and are set at 9 ppm with an eight-hour averaging time, and at 35 ppm with a one-hour averaging time, neither to be exceeded more than once per year. The agency has also decided not to establish a secondary NAAQS for CO. Primary standards are aimed at protecting public health. Secondary NAAQS are intended to protect non-health attributes, including public welfare, economic interests, vegetation, visibility, and other factors. According to the agency, no secondary standards are necessary to protect public welfare from ambient CO exposures.
NESHAP/MACT
Revisions to Area Source Standards for Plating and Polishing Operations Re-issued
In a June 20, 2011 direct final rule (76 FR 35744), EPA revised the national emission standards for area source plating and polishing operations to clarify that the emission standards do not apply to bench-scale activities. In addition, the agency made several technical corrections and clarifications to the area source plating and polishing standards. In a September 19, 2011 final rule (76 FR 57913–57923), EPA withdrew the June 20, 2011 rulemaking and re-issued the revisions to the emission standards for area source plating and polishing operations. The final rule also responds to the adverse comment leading to the withdrawal of the previous rulemaking.
NSPS/Emission Guidelines
New Emission Standards Proposed for Oil and Natural Gas Industry
On August 23, 2011 (76 FR 52738–52843), EPA proposed new emission standards for the oil and natural gas industry. The proposed rule would update the new source performance standards (NSPS) applicable to volatile organic compound (VOC) and sulfur dioxide (SO2) emissions from natural gas processing plants, and establish NSPS for oil and natural gas industry sources that are not currently regulated under the existing NSPS. The proposed rule would also revise the maximum achievable control technology (MACT) standards for the oil and natural gas industry to reflect the agency’s residual risk and technology review. The proposed NSPS would apply to more than 25,000 wells that are fractured or re-fractured each year, as well as to storage tanks and other pieces of equipment.
State Implementation Plans
EPA Issues Replacement for Clean Air Interstate Rule
On August 8, 2011 (76 FR 48208–48483), EPA issued the replacement for the agency’s 2005 clean air interstate rule (CAIR), referred to as the Transport Rule. The Transport Rule requires sulfur dioxide (SO2) and nitrogen oxides (NOx) emission reductions from power plants in 27 states. The required emission reductions, expressed as state emission budgets, are intended to address each state’s contribution to nonattainment with national ambient air quality standards (NAAQS) in downwind states. Under the final rule, 23 states are required to reduce annual NOx and SO2 emissions, and 20 states are required to reduce ozone season NOx emissions. To implement the emission reductions, the final rule establishes four emission trading programs: one program for annual NOx, one program for ozone season NOx, and two trading programs for SO2. The emission trading programs allow affected electric generating units (EGUs) within each program to trade with other sources within the respective program.
Phase-in Period for New Motor Vehicle Emission Model Extended One Year
On October 13, 2011 (76 FR 63554–63561), EPA extended the grace period before requiring the use of the Motor Vehicle Emissions Simulator (MOVES2010a) for regional conformity analyses for transportation conformity outside of California. MOVES2010a represents EPA’s most up-to-date assessment of on-road mobile source emissions, and replaces the agency’s previous emission model for on-road mobile sources, MOBILE6.2. The model can be used to estimate exhaust and evaporative emissions, as well as brake and tire wear emissions, from all types of on-road vehicles. In addition, the model can be used to estimate the benefits from a range of mobile source control strategies, for more general analyses of national or local emission trends, and for policy evaluation. EPA previously approved MOVES for use in state implementation plan (SIP) submissions, and for certain transportation conformity analyses in states other than California. In California, a different model (EMFAC2007) is approved for use in SIP submissions and transportation conformity analyses.
EPA Proposes to Exclude Two Compounds From VOC Definition
On October 17, 2011 (76 FR 64059–64065), EPA proposed to revise the regulatory definition of volatile organic compound (VOC) to exclude two compounds. Specifically, the proposed rule would add 2,3,3,3-tetrafluoropropene (also known as HFO-1234yf) and trans-1,3,3,3-tetrafluoropropene (also known as HFO-1234ze) to the list of compounds excluded from the definition of VOC. Excluding HFO-1234yf and HFO-1234ze from the definition of VOC would mean that the chemicals would no longer be subject to federal VOC regulations. In addition, facilities could no longer count emissions of HFO-1234yf and HFO-1234ze toward emission netting, offsetting, or trading with reactive VOCs. Additionally, states could no longer include the two chemicals in VOC emission inventories for demonstrating reasonable further progress, or take credit for controlling HFO-1234yf and HFO 1234ze emissions in their ozone attainment strategies.
Stratospheric Ozone Protection
Allowance System for HCFCs Adjusted to Reflect Court Decision
In an August 5, 2011 interim final rule (76 FR 47451–47469), EPA adjusted the allowance system for controlling U.S. production and consumption of hydrochlorofluorocarbons (HCFCs) to reflect a recent court decision vacating a portion of the agency’s regulations. In an August 27, 2010 decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated a portion of the changes made in 2009 to the HCFC allowance system (Arkema Inc. v. EPA, 618 F.3d 1 [DC Cir. 2010]). The August 5, 2011 interim final rule establishes HCFC-22 and HCFC-142b baseline allowances for 2011 that reflect past inter-pollutant baseline transfers. In addition, the interim final rule makes revisions to consumption allowances for HCFC-22 and HCFC-142b so as to be consistent with the new baselines.
Methyl Bromide Critical Use Allowances for 2011 Issued
In a September 30, 2011 final rule (76 FR 60736–60748), EPA established limits on the amount of methyl bromide that can be produced or imported in 2011, and amounts of the chemical that can be sold from existing stocks of methyl bromide in 2011. The final rule also specifies the uses of methyl bromide that qualify as critical uses in 2011. For 2011, the final rule allows up to 1.5 million kg of methyl bromide to be produced or imported. In addition, up to 555,200 kg of the chemical can be sold from existing stocks. The level of production or import of methyl bromide is equivalent to 5.9% of the United States’ 1991 baseline. The level of methyl bromide that can be sold from existing stocks represents 2.2% of the baseline.
Additional ODS Substitutes Approved Under EPA’s SNAP Program
In an October 4, 2011 acceptability determination (76 FR 61269–61278), EPA expanded the list of acceptable 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. In the October 4, 2011 rulemaking, EPA has announced its approval of acceptable substitutes for ODS in the refrigeration and air conditioning, solvent cleaning, and fire suppression sectors. All of the ODS substitutes have been approved for the designated uses without restrictions.
Other Issues
Reporting of Inputs to Greenhouse Gas Emission Calculations Deferred Until 2013/2015
The greenhouse gas reporting rule requires suppliers of fossil fuels and industrial gases, engine manufacturers, and industrial facilities that emit >25,000 metric tons of carbon dioxide equivalent (CO2e) per year to submit annual emission reports. The greenhouse gas reporting rule is expected to apply to about 10,000 facilities, and cover 85% of total U.S. greenhouse gas emissions. On August 25, 2011 (76 FR 53057–53071), EPA deferred the reporting deadline for data elements that are inputs to emission calculations used by direct emitters of greenhouse gases. The new deadline for reporting some data elements is March 31, 2013, while the deadline for reporting others is March 31, 2015. Only reporting of the data elements identified in the final rule has been deferred. Maintaining records of the inputs used in emission calculations is still required.
Revisions Proposed to Greenhouse Gas Reporting Requirements for Two Source Categories
On September 9, 2011 (76 FR 56010–56051), EPA proposed revisions to the greenhouse gas reporting requirements for electronics manufacturing, and for petroleum and natural gas systems. The proposed rule would revise reporting provisions for fluorinated heat transfer fluids to reflect the agency’s intent to cover all fluorocarbons that can enter the atmosphere (except ozone-depleting substances regulated under the stratospheric ozone protection regulations in 40 CFR Part 82) under the reporting requirements for electronics manufacturing. The proposed rule would also make technical corrections and clarifications to the reporting requirements for petroleum and natural gas systems to ensure that reporting requirements are implemented as intended. In addition, the proposed rule announces that the agency has granted reconsideration of numerous issues in the reporting requirements for petroleum and natural gas systems. The proposed rule also requests comment on the issues being reconsidered.
Greenhouse Gas Emission Standards Issued for Medium- and Heavy-Duty Vehicles
On September 15, 2011 (76 FR 57106–57513), EPA and the National Highway Traffic Safety Administration (NHTSA) issued greenhouse gas emission and fuel economy standards for on-road heavy-duty vehicles. The carbon dioxide (CO2) emission standards and fuel consumption standards are tailored to each of three regulatory categories of heavy-duty vehicles: 1) combination tractors, 2) heavy-duty pickup trucks and vans, and 3) vocational vehicles. The greenhouse gas emission standards apply beginning with the 2014 model year. The fuel economy standards are voluntary for model years 2014 and 2015, and become mandatory beginning with model year 2016 for most regulatory categories. EPA and the NHTSA estimate that the combined standards will reduce CO2 emissions by about 270 million metric tons, and save about 530 million barrels of oil over the life of vehicles built for the 2014–2018 model years.
Greenhouse Gas Reporting Requirements for Electronics Manufacturers Revised
On September 27, 2011 (76 FR 59542–59551), EPA revised the greenhouse gas reporting requirements for electronics manufacturers to allow larger semiconductor manufacturers to use default emission factors for reporting years 2011, 2012, and 2013. The final rule also extends two deadlines related to the use of best available monitoring methods. First, the final rule extends the date by which owners/operators can use best available monitoring methods to estimate 2011 emissions from September 30, 2011 to December 31, 2011. Second, the final rule extends the date by which an owner/operator may submit a request to extend the use of best available monitoring methods beyond December 31, 2011 from September 30, 2011 to October 17, 2011.
Greenhouse Gas Reporting Requirements for Petroleum and Natural Gas Systems Revised
On September 27, 2011 (76 FR 59533–59541), EPA revised the greenhouse gas reporting requirements for petroleum and natural gas systems to extend the time period during which affected facilities may use best available monitoring methods during 2011, instead of EPA-specified methods, without submitting a request for approval. In addition, the final rule expands the types of emission sources for which owners/operators are not required to submit a request to EPA for permission to use best available monitoring methods in 2011. The final rule also extends the deadline by which requests to use best available monitoring methods beyond 2011 must be submitted to EPA.
DC Circuit Court Vacates EPA Guidance on CAA Section 185 Fees
In a July 1, 2011 decision, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit Court) vacated EPA guidance on imposing CAA Section 185 fees (Natural Resources Defense Council v. EPA, No. 10-1056 [D.C. Cir. July 1, 2011]). The agency guidance at issue would have allowed states to submit an alternative plan for EPA approval, rather than collect CAA Section 185 fees. In addition, under the agency’s guidance, the fee requirements would no longer apply once an area attained the eight-hour ozone national ambient air quality standards (NAAQS). In the decision, the DC Circuit Court concluded that the guidance document qualified as a legislative rule and, as such, should have undergone formal notice and comment rulemaking. In addition, the court held that one alternative to imposing CAA Section 185 fees provided in the guidance document, the so-called attainment alternative, violated statutory requirements.
Appeals Court Rejects Challenge to PSD Permit for Wyoming Coal-Fired Power Plant
In a May 31, 2011 decision, the U.S. Court of Appeals for the Tenth Circuit dismissed a suit alleging that a prevention of significant deterioration (PSD) permit for a coal-fired power plant was invalid because construction was not commenced within the required time frame (Sierra Club v. Two Elks Generation Partners, Limited Partnership, No. 10-8032 [10th Cir. May 31, 2011]). In the decision, the appeals court noted that Sierra Club’s decision not to intervene earlier in the legal process and use the procedures established by state law did not mean those procedures were inadequate. The court found that the issues raised in the suit had been adequately addressed by the state, and the suit represented an attempt to second guess the state’s judgment.
NSR Reform Compliance: When Does a Violation Occur Using the Baseline to Projected Actual Emissions Test?
In this article, Gary McCutchen, Gary Saini, and Colin Campbell discuss a recent summary judgment that has implications for both EPA enforcement and the agency’s interpretation of the implementation of the new source review (NSR) Reform Rule. At issue in the case was whether a prevention of significant deterioration (PSD) permit was required prior to undertaking maintenance projects at a power plant. As has occurred in the past, the courts appear to be playing a major role in shaping the interpretation of the NSR regulations.
Hazardous Waste Compliance
Exclusions/Exemptions
EPA Proposes Revisions to RCRA Regulations for Hazardous Secondary Materials That Are Recycled
RCRA currently provides 35 exclusions from the definition of solid waste for hazardous secondary materials that are recycled. On July 22, 2011 (76 FR 44094–44154), EPA proposed numerous revisions to the RCRA definition of solid waste as it applies to hazardous secondary materials that are intended for reclamation. The regulatory changes being proposed are: 1) replacing the current exclusion at §261.4(a)(24–25) for hazardous secondary materials that are transferred from the generator to other persons for the purpose of reclamation with an alternative Subtitle C regulation for hazardous recyclable materials, 2) revising the exclusion for hazardous secondary materials that are reclaimed under the control of the generator, 3) revising the definition of legitimacy in §260.43, 4) revising the solid waste variances and non-waste determinations at §§260.30–260.34, 5) adding an exclusion for specific types of higher-value hazardous secondary materials that are sent for remanufacturing into commercial-grade products, and 6) revising other solid waste exclusions and hazardous waste exemptions for recyclable materials. The proposed revisions are designed to encourage reclamation in a way that does not increase the risk to human health and the environment from the mismanagement of hazardous secondary materials.
CERCLA
Incorrect CAS Numbers for Sodium Phosphate, Tribasic Removed From
CERCLA and CWA Lists
On September 8, 2011 (76 FR 55583–55585), EPA issued a final rule that corrects CERCLA and Clean Water Act (CWA) lists of hazardous substances. Specifically, the rule removes three Chemical Abstracts Service (CAS) registry numbers that were incorrectly associated with the hazardous chemical sodium phosphate, tribasic. The final rule affects CERCLA regulations in 40 CFR Part 302 and CWA regulations in 40 CFR Part 116. The revisions were effective September 8, 2011.
Emergency Planning and Community Right-to-Know Act (EPCRA)
EPA Proposes Changes to EPCRA Tiers I and II Reporting Forms
EPCRA establishes requirements for federal, state, and local governments and industry regarding emergency planning and preparedness, emergency release notification reporting, and community right-to-know reporting for hazardous and toxic chemicals. EPCRA is primarily intended to help local emergency response agencies better prepare for potential chemical emergencies, and to inform the public of the presence of toxic chemicals in their communities. On August 8, 2011 (76 FR 48093–48101), EPA proposed revisions to the EPCRA Section 312 Tier I and Tier II inventory reporting forms. These forms are used to notify state and local emergency planners and responders of the presence of chemicals at a facility at or above certain threshold levels.
EPA Proposes Revisions to TRI Reporting Requirements for Tribal Governments
Under EPCRA Section 313, regulated facilities that manufacture (including import), 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). Currently, the TRI regulations require facilities to submit TRI reports to EPA and the regulatory agency in the state in which the facility is geographically located. However, EPA has always intended that facilities in Indian country should submit their TRI reports to the appropriate tribal government, in lieu of the state. On September 30, 2011 (76 FR 60781–60788), the agency proposed revising the TRI regulations accordingly.
Exclusions/Exemptions
RCRA Exclusion Proposed for CO2 Streams That Are Geologically Sequestered
On August 8, 2011 (76 FR 48073–48093), EPA proposed a conditional exclusion from the RCRA definition of hazardous waste for carbon dioxide (CO2) streams that are captured from emission sources and injected into Class VI underground injection control (UIC) wells for purposes of geologic sequestration. The agency believes that the current regulation of these CO2 streams under other environmental laws provides adequate protection of human health and the environment and, therefore, additional regulation under RCRA is not necessary. Further, EPA believes that the proposed rule would reduce the uncertainty associated with the regulatory status of these CO2 streams, thereby encouraging the use of geologic sequestration.
Wastewater and Water Quality Compliance
Wastewater
SPCC Compliance Date for Farms Delayed Until May 10, 2013
In an October 18, 2011 direct final rule (76 FR 64245–64248), EPA extended until May 10, 2013 the date by which owners/operators of farms must prepare or amend, and implement their spill prevention, control, and countermeasures (SPCC) plans. The direct final rule provides owners/operators of farms with an additional 18 months to come into compliance with federal SPCC requirements. EPA indicates that the extension is necessary because recent floods and other events have impacted the ability of farm owners/operators to comply with the SPCC regulations. The direct final rule does not provide an extension for any other entities covered by the SPCC regulations.
EPA Proposes Data Collection Effort to Identify Concentrated Animal Feeding Operations
On October 21, 2011 (76 FR 65431–65458), EPA proposed to require concentrated animal feeding operations (CAFOs) to submit identifying information to the agency. EPA estimates that there are about 20,000 CAFOs in the United States, although the agency does not have an accurate inventory. The proposed rule would provide the agency with CAFO location and contact information, information concerning the number of animals at the facility, and information on manure and waste disposal practices.
News
Business and the Environment Newsletter
The October 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