|
|
October 2011
During September 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.
To access the guidance documents, go to Environmental Compliance > Air Quality Compliance > EPA Guidance on New Source Review.
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 September 2011
Air Quality Compliance
NAAQS
EPA Proposes to Add New Secondary NAAQS for NO2 and SO2
On August 1, 2011 (76 FR 46084–46147), EPA proposed to add secondary air quality standards for nitrogen dioxide (NO2) and sulfur dioxide (SO2) that would be identical to the one-hour NO2 and SO2 primary national ambient air quality standards (NAAQS). The proposed one-hour NO2 secondary standard would be set at a level of 100 ppb, and the proposed one-hour SO2 secondary NAAQS would be set at a level of 75 ppb. In addition, the agency has proposed to retain the current secondary NAAQS for NO2 and SO2 so as to provide vegetation protection from the direct effects of exposure to nitrogen oxides and sulfur oxides. The agency has also proposed to undertake a field pilot program, rather than establish a new multi-pollutant secondary NAAQS to protect against deposition effects. The field pilot program would allow the agency to gather and analyze additional data regarding the degree of protectiveness that a new multi-pollutant approach, defined in terms of an aquatic acidification index, might provide.
Other Issues
Corrections and Clarifications Proposed to Greenhouse Gas Reporting Rule
On August 4, 2011 (76 FR 47392–47421), EPA proposed to revise specific provisions of the greenhouse gas reporting rule to correct technical and editorial errors, clarify compliance obligations, correct data reporting elements, and make other corrections and amendments. The agency indicates that the proposed changes primarily provide additional clarifications regarding existing regulatory requirements, do not change the type of information that must be collected, and do not materially affect how emissions are calculated. The proposed rule would also extend the reporting deadline for source categories first required to collect data in 2011 from March 31, 2012 to September 28, 2012. The revisions to the greenhouse gas reporting rule that are included in the proposed rule would apply to reports covering 2011.
Appeals Court Denies Petition Arguing EPA’s Medical Waste Incinerator Standards Are Flawed
In a June 24, 2011 decision, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit Court) denied a petition for review that argued EPA’s approach to setting new emission standards for medical waste incinerators was flawed (Medical Waste Institute and Energy Recovery Council v. EPA, No. 09-1297 [D.C. Cir. June 24, 2011]). Although the court recognized that EPA had delayed finalizing the regulations for a period of ten years between the time the DC Circuit Court remanded the original regulations and the time the revised regulations were issued, the court found that the length of the delay did not impact the ultimate validity of the final regulations. The court found that the agency’s decision to use new emission data when setting the emission standards was a reasonable response to the court’s remand of the original regulations.
EPA’s Interpretation of CAA Requirements to Regulate Aircraft Engine Emissions Incorrect
In a July 5, 2011 decision, the U.S. District Court for the District of Columbia determined that EPA’s interpretation of the CAA Section 231(a)(2)(A) requirements to regulate emissions from aircraft engines was incorrect (Center for Biological Diversity v. EPA, No. 10-00985 [D.D.C. July 5, 2011]). In the case, EPA argued that evaluating whether greenhouse gas emissions from aircraft engines endanger public health or the environment was discretionary. According to the court, CAA Section 231(a)(2)(A) imposes a mandatory requirement that the agency make a determination as to whether or not greenhouse gas emissions from aircraft engines endanger public health or welfare and, if so, then to regulate such emissions.
Hazardous Waste Compliance
Guidance, Reports, Policy, Programs
Brownfields Program—EPA Reports on Recent Progress, Grant Recipients, and Tax Incentive
EPA defines a “brownfield” as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” The agency estimates that there are more than 450,000 brownfield sites in the United States. To promote the cleanup and reuse of these sites, EPA established its Brownfields Program in 1995. Recently, EPA reported on the accomplishments of its Brownfields Program; issued a guide, and updated its answers to frequently asked questions (FAQs), on the Brownfields Tax Incentive; and announced the recipients of Brownfields Assessment, Revolving Loan Fund, and Cleanup grants; and Environmental Workforce Development and Job Training grants.
Other
Revisions to Lead Renovation, Repair, and Painting Rule Finalized
Lead-based paint was banned for residential use in the United States in 1978. However, it is estimated that more than 38 million homes in the United States still contain some lead-based paint. EPA has set a goal of eliminating childhood lead poisoning as a major public health concern by 2010. As part of this effort, on April 22, 2008 (73 FR 21692), the agency finalized Toxic Substances Control Act (TSCA) requirements that are designed to reduce lead exposure caused by renovation, repair, and painting activities in target housing and child-occupied facilities. On August 5, 2011 (76 FR 47918–47946), EPA finalized clarifying revisions to the lead renovation, repair, and painting rule. The final rule, which is effective October 4, 2011, affects the TSCA regulations in 40 CFR Part 745.
Federal Claims Court Denies Alleged Takings Claim
In a May 25, 2011 opinion, the U.S. Court of Federal Claims denied an alleged taking claim filed under the Fifth Amendment (Placer Mining Co., Inc. v. United States, No. 01-27 [Fed. Cl. May 25, 2011]). Placer Mining Co., Inc. claimed that a unilateral administrative order (UAO) issued by EPA amounted to a taking of its property because it required unlimited access to the property, and sought compensation for the alleged taking of its property. Although EPA channeled a creek and built a bridge on the property, the court concluded that issues of fact exist in the case, making the issues not amendable to summary judgment. The court directed the parties to confer and propose a schedule for further proceedings.
Court Grants Limited Intervention, but Denies Addition to Consent Decree
In a May 11, 2011 order, the U.S. District Court for the Eastern District of California granted a request from the City of Modesto, California to intervene in a proposed consent decree (United States v. Stephen C. Lyon, No. CV F 07-0491 LJO MJS [E.D. Cal. May 11, 2011]). However, the court denied the City’s request to add a provision to the consent decree that the City believes is necessary to protect its interests. EPA and the defendants did not oppose the City’s intervention, but did oppose the City’s proposed change to the consent decree.
Appeals Court Rules Railroads Are Not Liable for Contamination That Migrated Through Their Site
In a June 28, 2011 decision, the U.S. Court of Appeals for the Ninth Circuit found that two railroad companies were not liable for petroleum contamination at an industrial site near railroad tracks (Redevelopment Agency of the City of Stockton v. BNSF Railway Co., Nos. 09-16585, 09-16739, and 09-17640 [9th Cir. June 28, 2011]). The contamination migrated onto the property through an underground french drain that the BNSF Railway Company and Union Pacific Railroad Company had installed to remove water from the roadbed. The Redevelopment Agency for the City of Stockton (Agency) argued that the railroads were liable under the common law of nuisance and California’s Polanco Redevelopment Act, but the appeals court disagreed.
DOE’s Plans to Abandon Development of Yucca Mountain Not Ripe for Judicial Review
Three state and local governments and three individual citizens petitioned the U.S. Court of Appeals for the District of Columbia Circuit for review of two “determinations” made by the U.S. Department of Energy (DOE). The petitioners requested review of 1) DOE’s attempt to withdraw the application for a license to construct a permanent nuclear waste repository at Yucca Mountain, Nevada; and 2) DOE’s decision to abandon further development of the Yucca Mountain site. On July 1, 2011, the appeals court ruled that the two petitions were not ripe for judicial determination and not justiciable by that court, and dismissed the petitions for lack of jurisdiction (In re: Aiken County, No. 10-1050 [D.C. Cir. July 1, 2011]).
Wastewater and Water Quality Compliance
Water Quality
EPA Regional Offices to Issue Permits for CO2 Geologic Sequestration Wells
In a September 15, 2011 final rule (76 FR 56982–56983), EPA announced that the agency will directly implement the underground injection control program for carbon dioxide (CO2) geologic sequestration wells. Geologic sequestration of CO2 is one option being developed to reduce CO2 emissions and help mitigate climate change. The agency issued requirements under the Safe Drinking Water Act (SDWA) for the underground injection of CO2 for the purposes of geologic sequestration on December 10, 2010 (75 FR 77230). In that rulemaking, the agency established a new Class VI category of underground injection well. The rulemaking also set minimum technical criteria for geologic site characterization, fluid movement, area of review and corrective action, well construction, operation, mechanical integrity testing, monitoring, well plugging, post-injection site care, and site closure. Direct federal implementation of the requirements for Class VI injection wells will remain in effect until such time as the agency approves a state’s application for primacy. As of September 6, 2011, EPA has not received or approved any complete state primacy applications.
Court Decisions
The following court decision was added in September 2011:
News
Business and the Environment Newsletter
The September 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