Environmental Compliance Update June 2012

Transcription

1 Environmental Compliance Update June 2012 Additions to the Environmental Compliance Portfolio During May 2012, 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, and Wastewater and Water Quality Compliance. Air Quality Compliance May 2012 additions to the Air Quality Compliance module included: Four new regulatory analysis articles were added, along with supporting Federal Register documents. The following practice tools were updated through May 31, 2012: Air Quality Regulation Changes Smart Chart, and Federal Greenhouse Gas Reporting Smart Chart. To access the practice tools, go to Practice Tools > Environmental Compliance. HOT TOPICS include: New Emission Standards Proposed for Chemical Manufacturing and Petroleum Refining Industries On March 26, 2012 (77 FR ), EPA proposed uniform standards for storage vessels and transfer racks, equipment leaks, and control devices. The proposed standards would be incorporated by reference into future revisions to new source performance standards (NSPS) and maximum achievable control technology (MACT) standards applicable to sources within the chemical manufacturing and petroleum refining industries. The proposed uniform standards are intended to increase consistency, while streamlining and coordinating recordkeeping and reporting requirements, for facilities within the chemical manufacturing and petroleum refining industries that are subject to multiple NSPS and MACT standards. EPA indicates that there are currently 148 major source facilities in the petroleum refining sector, and 450 major source facilities manufacturing synthetic organic chemicals. For the petroleum refining sector, there are two MACT standards and five NSPS that could potentially be amended to 1

2 reference the uniform standards. For the chemical manufacturing sector, there are 14 MACT standards and seven NSPS that could potentially be amended to reference the uniform standards. See Uniform Emission Standards Proposed for Chemical Manufacturing and Petroleum Refining Industries. Hazardous Waste Compliance May 2012 additions to the Hazardous Waste Compliance module included: Four new reviews of court decisions were added, along with the associated court decisions. Volume 30, Issue 3 of the Hazardous Waste Consultant was added. A printable/downloadable version of this issue is available to Internet subscribers at Environmental Compliance > Hazardous Waste Compliance > Hazardous Waste Regulatory Analysis Articles > Hazardous Waste Consultant Archive. The following practice tool was updated through May 31, 2012: Identifying RCRA Hazardous Wastes. To access the practice tool, go to Practice Tools > Environmental Compliance. HOT TOPICS include: Court Rules Private Vehicles Are Not CERCLA Facilities On February 2, 2012, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court s dismissal of a suit for declaratory relief (Emergency Services Billing Corporation, Inc. v. Allstate Insurance Company, No [7th Cir. Feb. 2, 2012]). In the case, a fire department s billing agent argued that motor vehicles operated for personal use that are involved in accidents are CERCLA facilities, and the vehicle owners are liable under CERCLA for costs associated with responding to hazardous waste releases. Both the district court and the appeals court disagreed. The appeal concerned the phrase consumer product in consumer use, as used in CERCLA, and whether personal vehicles are CERCLA facilities. In the decision, the Seventh Circuit Court found that personal vehicles are included in CERCLA s consumer product in consumer use exception to the definition of facility. See Motor Vehicles Operated for Personal Use and Involved in Accidents Are Not Facilities Under CERCLA. Wastewater and Water Quality Compliance May 2012 additions to the Wastewater and Water Quality Compliance module included: One new regulatory analysis article was added, along with supporting Federal Register documents. Two court decisions were added. HOT TOPICS include: New Drinking Water Monitoring Requirements On May 2, 2012 (77 FR ), EPA issued a final rule requiring certain public water systems to monitor 28 chemical contaminants and two viruses. Under the final rule, all large community water systems and non-transient non-community water systems 2

3 serving more than 10,000 people will be required to conduct monitoring. Monitoring will also be done at a representative sample of community water systems and non-transient non-community water systems serving 10,000 or fewer people. A community water system has at least 15 service connections used by year-round residents, or regularly serves an average of at least 25 yearround residents. EPA estimates that the final rule will require 4,215 large public water systems (i.e., systems serving more than 10,000 people) to conduct monitoring for the 28 chemical contaminants and two viruses. In addition, monitoring will be conducted for chemical contaminants at 800 small public water systems. The agency will also conduct or arrange for microbial sampling of 800 selected small public water systems. See New Drinking Water Monitoring Requirements Issued for 30 Unregulated Contaminants. Go to for more information on the Environmental Compliance Portfolio. Analysis and Other Materials Added to the Environmental Compliance Portfolio in May 2012 Air Quality Compliance Air Pollution Consultant Regulatory Analysis NAAQS Revisions Made to Implementation Rule for the 1997 Eight-Hour Ozone NAAQS On May 14, 2012 (77 FR ), EPA revised the requirements for implementing the 1997 eight-hour ozone national ambient air quality standards (NAAQS). Under the final rule, areas that had been designated as nonattainment with no further classification ( Subpart 1 areas) have been classified as either marginal or moderate nonattainment. In addition, the final rule removes regulatory provisions indicating that nonattainment new source review (NSR) and CAA Section 185 penalty fees associated with the onehour ozone NAAQS no longer apply to certain areas. The regulatory changes included in the May 14, 2012 final rule are intended to address provisions of the regulations implementing the 1997 eight-hour ozone NAAQS that have been vacated by the court. NESHAP/MACT New MACT Standards Issued for Polyvinyl Chloride and Copolymers Production On April 17, 2012 (77 FR ), EPA issued MACT standards for polyvinyl chloride (PVC) and copolymers production. The MACT standards replace standards previously issued for this source category that were vacated by the court. The new standards apply to both major and area source PVC and copolymers production facilities, and establish emission limits for vinyl chloride, hydrogen chloride (HCl), total hydrocarbons, total organic hazardous air pollutants (HAPs), and dioxins/furans. The PVC and copolymers production emission sources regulated under the final rule include 3

4 process vents, stripped resin, equipment leaks, wastewater, heat exchangers, and storage vessels. There are currently 15 major and two area source PVC production facilities. Uniform Emission Standards Proposed for Chemical Manufacturing and Petroleum Refining Industries On March 26, 2012 (77 FR ), EPA proposed uniform standards for storage vessels and transfer racks, equipment leaks, and control devices. The proposed standards would be incorporated by reference into future revisions to NSPS and MACT standards applicable to sources within the chemical manufacturing and petroleum refining industries. The proposed uniform standards are intended to increase consistency, while streamlining and coordinating recordkeeping and reporting requirements, for facilities within the chemical manufacturing and petroleum refining industries that are subject to multiple NSPS and MACT standards. EPA indicates that there are currently 148 major source facilities in the petroleum refining sector, and 450 major source facilities manufacturing synthetic organic chemicals. For the petroleum refining sector, there are two MACT standards and five NSPS that could potentially be amended to reference the uniform standards. For the chemical manufacturing sector, there are 14 MACT standards and seven NSPS that could potentially be amended to reference the uniform standards. NSPS/Emission Guidelines Federal Plan Proposed to Implement Emission Guidelines for Medical Waste Incinerators On October 6, 2009 (74 FR 51368), EPA issued revised NSPS and emission guidelines for hospital, medical, and infectious waste incinerators (HMIWI). Under CAA Sections 111(d) and 129(b), states must establish standards for existing sources based on the emission guidelines promulgated by EPA. If a state plan for implementing the emission guidelines is not submitted (and approved by EPA) within two years of the guideline promulgation date, EPA must develop and enforce a federal plan within that jurisdiction. On April 23, 2012 (77 FR ), the agency proposed a federal plan to implement the HMIWI emission guidelines in those areas where a state plan has not been submitted and approved. The agency estimates that 53 HMIWI in 21 states may potentially be covered under the proposed federal plan. Hazardous Waste Compliance Reviews of Court Decisions and Consent Decrees Seller s Agent Has Duty to Disclose Contamination at Condominium Built in Abandoned Factory In a January 10, 2012 decision, the Michigan Court of Appeals found that a seller s agent may have had a duty to inform the buyers of a condominium built in an abandoned factory that the site was contaminated (Alfieri v. Bertorelli, No [Mich. Ct. App. Jan. 10, 2012]). The court noted that, while the seller usually has the duty to disclose environmental conditions at a property, the duty can pass to the seller s agent. The court also concluded that the seller s agents had answered the purchaser s questions with inaccurate information. 4

5 Buyer Can Assume CERCLA Liability, Even If Seller Continues to Exist On December 19, 2011, the U.S. District Court for the Eastern District of Wisconsin concluded that an asset purchaser can assume CERCLA liability, even if the asset seller continues to exist (United States v. NCR Corp., No. 10-CV-910 [E.D. Wis. Dec. 19, 2011]). The court found that the asset purchaser does not need to be a successor-ininterest in order to face CERCLA liability. The two parties to the case had previously entered into arbitration. The arbitration panel found both companies liable for the contamination, and the arbitration agreement altered the terms of the original purchase agreement. As a result, the district court concluded that the seller s continued existence did not prevent the purchaser from assuming CERCLA liability, even though the court had previously ruled that the purchaser was not a successor-in-interest to the seller. District Court Finds That RCRA and CWA Notice Requirements Were Met In a November 14, 2011 decision, the U.S. District Court for the Northern District of California denied a defendant s motion to dismiss three of the four claims made against it by an environmental group under RCRA and the Clean Water Act (CWA) (Northern California River Watch v. Honeywell Aerospace, No. C [N.D. Cal. Nov. 14, 2011]). The district court concluded that the three claims were adequate to survive, as the RCRA and CWA notice requirements were met. Both parties agreed to dismiss the fourth claim. Motor Vehicles Operated for Personal Use and Involved in Accidents Are Not Facilities Under CERCLA On February 2, 2012, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court s dismissal of a suit for declaratory relief (Emergency Services Billing Corporation, Inc. v. Allstate Insurance Company, No [7th Cir. Feb. 2, 2012]). In the case, a fire department s billing agent argued that motor vehicles operated for personal use that are involved in accidents are CERCLA facilities, and the vehicle owners are liable under CERCLA for costs associated with responding to hazardous waste releases. Both the district court and the appeals court disagreed. The appeal concerned the phrase consumer product in consumer use, as used in CERCLA, and whether personal vehicles are CERCLA facilities. In the decision, the Seventh Circuit Court found that personal vehicles are included in CERCLA s consumer product in consumer use exception to the definition of facility. Wastewater and Water Quality Compliance Analysis of Major Wastewater and Water Quality Issues Water Quality New Drinking Water Monitoring Requirements Issued for 30 Unregulated Contaminants On May 2, 2012 (77 FR ), EPA issued a final rule requiring certain public water systems to monitor 28 chemical contaminants and two viruses. Under the final rule, all large community water systems and non-transient non-community water systems serving more than 10,000 people will be required to conduct monitoring. Monitoring will also be done at a representative sample of community water systems and non-transient non-community water systems serving 10,000 or fewer people. A 5

6 community water system has at least 15 service connections used by year-round residents, or regularly serves an average of at least 25 year-round residents. EPA estimates that the final rule will require 4,215 large public water systems (i.e., systems serving more than 10,000 people) to conduct monitoring for the 28 chemical contaminants and two viruses. In addition, monitoring will be conducted for chemical contaminants at 800 small public water systems. The agency will also conduct or arrange for microbial sampling of 800 selected small public water systems. Court Decisions The following court decisions were added in May 2012: Atchafalaya Basinkeeper v. Chustz, No (5th Cir. Apr. 25, 2012) Fifth Circuit Court affirms decision that the CWA does not allow citizen enforcement of Section 404 dredge and fill permits. Louisiana Environmental Action Network v. Baton Rouge, No (5th Cir. Apr. 18, 2012) Appeals court determines that citizen suit is not necessarily barred, even though alleged violations are covered under a consent decree. 6