Environmental Compliance Update May 2013

Transcription

1 Environmental Compliance Update May 2013 Additions to the Environmental Compliance Portfolio During April 2013, 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 April 2013 additions to the Air Quality Compliance module included: Five new regulatory analysis articles were added, along with supporting Federal Register documents. Four new reviews of court decisions were added, along with the associated court decisions. A new article was added to NSR/PSD Perspectives by Gary McCutchen. The ongoing series provides insight into, and analysis of, new source review (NSR) and prevention of significant deterioration (PSD) permitting requirements. Gary McCutchen is a Principal of RTP Environmental Associates, and former Chief of EPA s New Source Review Section. The series of articles is available at Environmental Compliance > Air Quality Compliance > NSR/PSD Perspectives by Gary McCutchen >. Four new EPA guidance documents on new source review were added. The more than 700 documents available at Environmental Compliance > Air Quality Compliance > EPA Guidance on New Source Review explain important definitions, provide guidance on whether new facilities or modifications are subject to new source review permitting, and explain how applicable legal cases apply to the new source review program. Volume 23, Issue 3 of the Air Pollution Consultant was added. A printable/downloadable version of this issue is available to Internet subscribers at Environmental Compliance > Air Quality Compliance > Air Pollution Consultant Archive. The three indexes at Environmental Compliance > Indexes and Tables > Air Quality Indexes and Finding Aids > were updated to reflect the addition of 1

2 30 regulatory analysis articles, 16 reviews of court decisions, 16 court decisions, and 10 guidance documents between October 2012 and March In total, the new index entries included: 252 entries added to the keyword index, 55 entries added to the citation index, and 38 entries added to the industry index. The following practice tools were updated through April 30, 2013: Air Quality Regulation Changes Smart Chart, and Federal Greenhouse Gas Reporting Smart Chart. To access the practice tools, go to Tools/Smart Charts > Environmental Compliance. HOT TOPICS include: Changes to Greenhouse Gas Reporting Requirements Proposed On April 2, 2013 (78 FR ), EPA proposed revisions to the greenhouse gas reporting program in 40 CFR Part 98. The greenhouse gas reporting rule requires emission reporting from direct emitters of greenhouse gases, as well as upstream sources (e.g., fuel suppliers and industrial gas producers). The proposed rule would revise the global warming potentials of several greenhouse gases specified in Part 98, Subpart A. In general, the proposed changes to the global warming potentials used in the greenhouse gas reporting program would lead to higher emission estimates. EPA estimates that 184 additional facilities will have to submit reports as a result of the changes to the global warming potentials. See Revisions Proposed to Greenhouse Gas Reporting Requirements. Hazardous Waste Compliance April 2013 additions to the Hazardous Waste Compliance module included: Five new regulatory analysis articles were added, along with supporting Federal Register documents. One new court decision review was added, along with the associated court decision. The following practice tool was updated through April 30, 2013: Identifying RCRA Hazardous Wastes. To access the practice tool, go to Tools/Smart Charts > Environmental Compliance. HOT TOPICS include: Electronic Hazardous Waste Manifest Under Development The federal hazardous waste manifest system is designed to track hazardous wastes from cradle to grave. That is, from the time a shipment of hazardous waste leaves the generator facility until it reaches the designated offsite treatment, storage, or disposal (TSD) facility. Under the Hazardous Waste Electronic Manifest Establishment Act (Pub. L , Oct. 5, 2012), EPA is authorized to establish and implement a national electronic manifest (e-manifest) system. The Act requires that the agency promulgate appropriate regulations by October 5, 2013, and deploy the e-manifest system by On February 20, 2013 (78 FR 2

3 ), EPA announced that it has started the initial planning phase for the development and ultimate deployment of the e-manifest system. See National Electronic Manifest System to Be Deployed By Wastewater and Water Quality Compliance April 2013 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. The three indexes at Environmental Compliance > Indexes and Tables > Wastewater and Water Quality Indexes and Finding Aids > were updated to reflect the addition of six regulatory analysis articles and nine court decisions between October 2012 and March In total, the new index entries included: 52 entries added to the keyword index, 13 entries added to the citation index, and Five entries added to the industry index. HOT TOPICS include: Construction and Development Discharge Standards On April 1, 2013 (78 FR ), EPA proposed to revise the effluent limitations guidelines and new source performance standards (NSPS) for the construction and development point source category. The effluent limitations guidelines and NSPS are applicable to all dischargers currently required to obtain National Pollutant Discharge Elimination System (NPDES) permit coverage for storm water discharges from construction and development activities. Under the April 1, 2013 proposed rule, the effluent limitation guidelines and NSPS would no longer include a numeric effluent limit for turbidity. (The numerical effluent limitation and associated monitoring requirements are currently stayed.) In addition, the proposed rule would clarify a number of the non-numeric discharge standards applicable to the construction and development industry. EPA estimates that more than 81,000 construction and development firms are covered under the effluent limitations guidelines and NSPS. See Revisions Proposed to Discharge Standards for Construction and Development Industry. Go to for more information on the Environmental Compliance Portfolio. 3

4 Analysis and Other Materials Added to the Environmental Compliance Portfolio in April 2013 Air Quality Compliance Air Pollution Consultant Regulatory Analysis Operating Permits Revision Proposed to Title V Compliance Certification Language On March 29, 2013 (78 FR ), EPA proposed to revise the compliance certification requirements associated with federal and state CAA Title V operating permits. CAA Section 503(b)(2) requires that sources certify compliance with applicable requirements at least annually. Under the Title V operating permit regulations, owners/operators of affected facilities are required to certify the accuracy of the content of compliance certifications. The March 29, 2013 proposed rule would add a provision to the compliance certification requirements specifying that any additional material information used to determine compliance must be included in the certification. State Implementation Plans SIP Call Proposed to Address State Start-up, Shutdown, and Malfunction Rules On February 22, 2013 (78 FR ), EPA proposed to find that provisions included in state implementation plans (SIPs) for 36 states do not meet CAA requirements. The SIP call is intended to address provisions in state plans that either provide exemptions from emission standards during periods of start-up, shutdown, and malfunction, or provide discretion to state staff to determine what is or is not a violation. In the proposed rule, EPA has also clarified the agency s interpretation of the CAA with respect to SIP provisions applicable to excess emissions during start-up, shutdown, and malfunction events. In the agency s current interpretation, start-up and shutdown are normal, planned events that should not be exempted from otherwise applicable emission standards. Stratospheric Ozone Protection HCFC-22 and HCFC-142b Production and Consumption Allowances for Issued On April 3, 2013 (78 FR ), EPA adjusted the allowance system controlling U.S. production and consumption of hydrochlorofluorocarbons (HCFCs) by establishing company-by-company baselines for HCFC-22 and HCFC-142b. In addition, the final rule allocates consumption and production allowances for the two chemicals for The allowance system prohibits companies from producing, importing, or exporting HCFCs in quantities that exceed their allowances held. EPA estimates that 3.8 million units of HCFC-22 refrigeration equipment were in use in Residential uses of HCFC-22 include window air conditioning units, dehumidifiers, central air conditioners, air-to-air heat pumps, ground-source heat pumps, ductless air conditioners, and chest or upright freezers. Commercial and industrial uses of HCFC-22 include packaged air conditioners and heat pumps, chillers, retail food refrigeration, cold storage warehouses, 4

5 industrial process refrigeration, and transport refrigeration. HCFC-142b is much less widely used. Other Issues Comment Sought on Global Warming Potentials for 43 Compounds On April 5, 2013 (78 FR ), EPA requested comment on the global warming potentials of 43 fluorinated greenhouse gases and fluorinated heat transfer fluids. Information gathered in response to the April 5, 2013 notice will be used to develop a proposal to add compounds and their global warming potentials to the greenhouse gas reporting rule. Global warming potentials are used to express greenhouse gas emissions in terms of carbon dioxide equivalent (CO 2 e) emissions. CO 2 is assigned a global warming potential of one. If the subject compounds and their global warming potentials are added to the greenhouse gas reporting rule, facilities would have to include the compounds in their calculations of CO 2 e emissions. Adding the compounds and global warming potentials to the greenhouse gas reporting rule would primarily affect electronics manufacturers, manufacturers of fluorinated greenhouse gases, and facilities using fluorinated heat transfer fluids. Revisions Proposed to Greenhouse Gas Reporting Requirements On April 2, 2013 (78 FR ), EPA proposed revisions to the greenhouse gas reporting program in 40 CFR Part 98. The greenhouse gas reporting rule requires emission reporting from direct emitters of greenhouse gases, as well as upstream sources (e.g., fuel suppliers and industrial gas producers). The proposed rule would revise the global warming potentials of several greenhouse gases specified in Part 98, Subpart A. In general, the proposed changes to the global warming potentials used in the greenhouse gas reporting program would lead to higher emission estimates. EPA estimates that 184 additional facilities will have to submit reports as a result of the changes to the global warming potentials. Air Pollution Consultant Reviews of Court Decisions DC Circuit Court Remands Implementation Rules for PM-2.5 NAAQS In a January 4, 2013 decision, the U.S. Court of Appeals for the District of Columbia Circuit remanded two final rules implementing the 1997 national ambient air quality standards (NAAQS) for PM-2.5 (particulate matter with an aerodynamic diameter of 2.5 microns or less) (Natural Resources Defense Council v. EPA, No [D.C. Cir. Jan. 4, 2013]). At issue were regulations addressing how state implementation plans (SIPs) were to be prepared to implement the NAAQS, and regulations implementing the PM-2.5 new source review (NSR) program. The court concluded that the agency erred in applying the provisions of CAA Sections B (CAA Title I, Part D, Subpart 1), rather than the more particulate matter-specific requirements in CAA Sections (CAA Title I, Part D, Subpart 4). EPA s Projection of Cellulosic Biofuel Production for 2012 Vacated In a January 25, 2013 decision, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA s projection of how much cellulosic biofuel would be produced in 2012 (American Petroleum Institute v. EPA, No [D.C. Cir. Jan. 25, 2013]). The court found that EPA s methodology for making the 2012 cellulosic biofuel projection was not neutral, and was an unreasonable exercise of agency discretion. 5

6 Court Rules MACT Determination Was Required for Power Plant Upgrade In a March 21, 2013 decision, the U.S. District Court for the District of Colorado determined that a maximum achievable control technology (MACT) determination should have been obtained for a power plant upgrade (Wildearth Guardians v. Lamar Utilities Board, No. 1:09-cv [D. Colo. Mar. 21, 2013]). At issue was whether an upgrade at an existing power plant in Lamar, Colorado that would change it from a natural gas-fired plant into a coal-fired plant required a case-by-case MACT determination. The upgrade project started during a period when electric utility steam generating units (EGUs) were not subject to MACT requirements. EPA s regulations excluding EGUs from MACT were later vacated by the U.S. Court of Appeals for the District of Columbia Circuit. In the March 21, 2013 decision, the federal district court ruled that the EGU in question was a major source of hazardous air pollutants (HAPs) at the time construction commenced. The court found that the project was subject to the CAA Section 112(g) case-by-case MACT requirements from the time the federal appeals court issued its mandate, until the state permitting agency later revised the facility s permit such that it was no longer a major source. Appeals Court Reverses Decision Limiting EPA Review of Pre-Construction Emission Projections On March 28, 2013, the U.S. Court of Appeals for the Sixth Circuit reversed and remanded a lower court decision limiting EPA s ability to object to pre-construction estimates of post-construction emissions (United States v. DTE Energy Co., No [6th Cir. Mar. 28, 2013]). The court s decision addressed whether EPA can challenge projections of post-construction emissions made to determine major source new source review (NSR) applicability before there is post-construction data to prove or disprove that projection. The district court had held that EPA cannot. However, in the March 28, 2013 decision, the federal appeals court held that the agency is not categorically prevented from challenging pre-construction NSR applicability emission estimates. NSR/PSD Perspectives by Gary McCutchen DC Circuit Court Strikes Down PM-2.5 SIL and SMC, But Will the Ruling Have an Adverse Effect on PSD Permitting? In this article, Gary McCutchen, Gary Saini, and Colin Campbell discuss how the decision from the U.S. Court of Appeals for the District of Columbia Circuit on significant impact levels and a significant monitoring concentration for PM-2.5 (particulate matter with an aerodynamic diameter of 2.5 microns or less) may affect prevention of significant deterioration (PSD) permitting. As they explain, the vacatur of the PM-2.5 significant impact levels and significant monitoring concentration may not have much of a practical effect. There are alternate approaches in place that can accommodate most, if not all, the loss of those exclusions. 6

7 Hazardous Waste Compliance Hazardous Waste Regulatory Analysis Articles CERCLA EPA Finalizes NCP Change to Allow Electronic Administrative Records Under CERCLA, recovery of cleanup costs from responsible parties is only allowed if the cleanup is consistent with the National Contingency Plan (NCP). CERCLA requires the lead agency at a site to provide the public with access to an administrative record that contains the documents that form the basis for the selection of a response action. On March 18, 2013 (78 FR ), EPA finalized a rule that revises the NCP to allow lead agencies to use electronic methods to provide the administrative record to the public. However, the traditional methods of providing public access to an administrative record (e.g., paper copies, microform) will still be allowed. Emergency Planning and Community Right-to-Know Act (EPCRA) TRI Chemicals List EPA Denies Petition to Remove Acetonitrile and Proposes Adding o-nitrotoluene 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). On March 5, 2013 (78 FR ), EPA denied a petition requesting that acetonitrile be removed from the list of chemicals that are subject to EPCRA Section 313 reporting. On March 13, 2013 (78 FR ), the agency proposed adding ortho- (o-) nitrotoluene to the list of toxic chemicals that are subject to TRI reporting. Manifests National Electronic Manifest System to Be Deployed By 2015 The federal hazardous waste manifest system is designed to track hazardous wastes from cradle to grave. That is, from the time a shipment of hazardous waste leaves the generator facility until it reaches the designated offsite treatment, storage, or disposal (TSD) facility. Under the Hazardous Waste Electronic Manifest Establishment Act (Pub. L , Oct. 5, 2012), EPA is authorized to establish and implement a national electronic manifest (e-manifest) system. The Act requires that the agency promulgate appropriate regulations by October 5, 2013, and deploy the e-manifest system by On February 20, 2013 (78 FR ), EPA announced that it has started the initial planning phase for the development and ultimate deployment of the e-manifest system. Polychlorinated Biphenyls Petitions Seek Changes to Requirements for PCBs From Sunken U.S. Navy Ships On April 5, 2013 (78 FR ), EPA announced that it has received two petitions requesting that immediate actions be taken to protect human health and the environment from polychlorinated biphenyls (PCBs) that leach from ships that are sunk under the U.S. Navy s Sink Exercise Program (SINKEX). Several environmental 7

8 groups submitted the petitions under the Marine Protection, Research, and Sanctuaries Act (MPRSA). Under a MPRSA general permit for SINKEX, the Navy is authorized to transport vessels from the United States or other locations for the purpose of sinking such vessels in ocean waters in testing ordnance and providing related data. The petitions request that EPA revise the MPRSA general permit as it applies to the removal of PCBs from SINKEX ships prior to their sinking. TSCA Interpretation Allows Recycling of Plastics From Shredder Residue Under PCB Exclusions On April 5, 2013 (78 FR ), EPA issued a regulatory interpretation that generally allows the recycling of plastic that is separated from shredder residue in accordance with the Voluntary Procedures for Recycling Plastics from Shredder Residue. The agency issued the notice in response to questions it has received concerning the applicability of the Toxic Substances Control Act (TSCA) regulations for excluded polychlorinated biphenyls (PCBs) products to the separation, recycling, use, and distribution of recycled plastics from shredder residue recovered from metals recycling facilities. Reviews of Court Decisions and Consent Decrees Direct Liability Under CERCLA Cannot Be Transferred by Contractual Agreements In a January 22, 2013 decision, the U.S. District Court for the Northern District of Oklahoma affirmed a magistrate judge s ruling that direct liability under CERCLA cannot be transferred via contractual agreements (Cyprus Amax Minerals Company v. TCI Pacific Communications, Inc., No. 11-CV-0252 [N.D. Okla. Jan. 22, 2013]). A smelting company argued that the magistrate judge s order was contrary to applicable law regarding the transfer of CERCLA liability. However, the district court concluded that the order was supported by majority opinion. Based on CERCLA s prohibition on the complete transfer of liability, the district court upheld the magistrate judge s order. Wastewater and Water Quality Compliance Analysis of Major Wastewater and Water Quality Issues Wastewater Revisions Proposed to Discharge Standards for Construction and Development Industry On April 1, 2013 (78 FR ), EPA proposed to revise the effluent limitations guidelines and new source performance standards (NSPS) for the construction and development point source category. The effluent limitations guidelines and NSPS are applicable to all dischargers currently required to obtain National Pollutant Discharge Elimination System (NPDES) permit coverage for storm water discharges from construction and development activities. Under the April 1, 2013 proposed rule, the effluent limitation guidelines and NSPS would no longer include a numeric effluent limit for turbidity. (The numerical effluent limitation and associated monitoring requirements are currently stayed.) In addition, the proposed rule would clarify a number of the nonnumeric discharge standards applicable to the construction and development industry. 8

9 EPA estimates that more than 81,000 construction and development firms are covered under the effluent limitations guidelines and NSPS. Court Decisions The following court decisions were added in April 2013: DeKalb County, Georgia v. United States, No C (Fed. Cl. Jan. 28, 2013) Court finds that DeKalb County cannot recover past storm water fees from federal government. Decker v. Northwest Environmental Defense Center, No (U.S. Mar. 20, 2013) Supreme Court upholds exemption from NPDES permitting for storm water runoff from logging roads. 9