By Mary Ellen Ternes
Hazardous Waste
Revisions to EPA’s SW-846
On January 3, 2008, EPA announced the availability of final updates to SW-846, EPA’s guidance manual of appropriate and reliable methods for testing and monitoring hazardous waste (73 Fed. Reg. 486).
AAI Oil Spills
On January 14, 2008, the U.S. Coast Guard released its own rules for “all appropriate inquiry” which landowners can use to demonstrate they had no prior knowledge of oil contamination on property they purchased, at the time of purchase (73 Fed. Reg. 2146). This rule is similar to EPA’s “all appropriate inquiry” rule adopted to insulate bona fide prospective purchasers, innocent landowners and contiguous property owners from Superfund (CERCLA) liability, and relies also on ASTM standards and assistance by environmental professionals.
Air
New Source Review
On November 13, 2007, with regard to fugitive emissions, EPA proposed to conform the calculation of emission increases for purposes of NSR major modification determination with the calculation determining whether a source is a “major stationary source.” Under the proposed rule, if emissions are counted for purposes of major source determination pursuant to 40 CFR 52.21(b)(1)(iii), then fugitives will be counted in calculating emission increases for purposes of evaluating whether a modification is “major” for purposes of NSR (72 Fed. Reg. 63850). This proposal would change EPA’2 2002 revision to NSR which includes all quantifiable fugitive emissions in the definition of emissions increase, causing EPA to revise 40 CFR 51.165, 51.166, 52.21 and 40 CFR Part 51, Appendix S.
On December 14, 2007, EPA adopted its final rule requiring facilities to record and track emissions if a change at a plant will increase emissions of a pollutant by at least 50% of an increase EPA considers “significant” per 40 CFR 51.165(a)(1)(x) and 40 CFR 52.21(b)(23)(i) (100 tpy, CO; 40 tpy NOx, SOx and VOC).
Department of Homeland Security
On November 20, 2007, the Department of Homeland Security promulgated its “Appendix A” list of Chemicals of Interest (COIs), (72 Fed. Reg. 65396), thus providing notice as to which facilities are impacted by this rule, first promulgated without this Appendix A on April 9, 2007 (72 Fed. Reg. 17688). With Appendix A, DHS triggered a 60-day deadline for completing the Chemical Security Assessment Tool, or “CSAT Top-Screen User’s Manual” (version 1.4, December, 2007). The 60-day deadline ended on January 22, 2008, with what appears to have been less than complete compliance by impacted facilities. Though not expressly referenced in the promulgated standards, DHS provided an opportunity to request a formal extension on its website. Additionally, many facilities that registered two weeks prior to the deadline were provided with an automatic extension past the January 22, 2008 deadline apparently due to delays in issuing login numbers necessary to complete the CSAT Top-Screen. Entities in possession of industrial chemicals, including hospitals, and other counter-intuitive facilities, should review Appendix A to determine whether they possess threshold quantities of a COI. Note, many of the Appendix A chemicals are actually constituents within other products, e.g., pentane is listed, pulling bulk gasoline storage facilities with above ground storage tanks. Note also, entities may be subject to the rule for possessing some mixtures over the COI threshold, rather than a single COI.
Urban facilities should watch developing legislation currently planned by the House Homeland Security Committee. This bill, a markup of the chemical Facility Anti-Terrorism Act of 2008, is sponsored by Bennie Thompson (D-MI) and Shelia Jackson-Lee (D-TX), and may attempt to simply ban use of “highly dangerous materials” in highly populated areas and allow states to impose tougher standards at will. Committee Chairwomen Jackson Lee referenced the 1994 methyl isocyanate release in India as support for this proposal, but it remains far from clear how such unprecedented and unfocused “technology-forcing” would be implemented, or how such a broad mandate could be justified.
Climate Change
On December 5, 2007, the Senate Environment and Public Worlds Committee approved Senate Bill 2191, capping GHG emissions at 70 percent of 2005 emissions by 2050.
On December 15, 2007, delegates to the U.N. climate change meeting in Bali reached agreement on a treaty, with the United States signing on. The agreement, called the “Bali Road Map,” is essentially an agreement to agree in two years on a new climate treaty that would go into effect after 2012 when the Kyoto Protocol commitments expire.
On December 19, 2007 EPA denied California’s request for a CAA waiver that would have let California establish its own regulations to control GHG from automobiles. EPA’s Administrator Johnson indicated an EPA position that such regulation may not be not necessary given the Energy Bill, signed by President Bush on that day, requires the NHTSA to raise CAFÉ standards to 35 miles per gallon by 2020.
On January 2, 2008, California and 15 other states sued EPA to reverse its December 19, 2007 decision denying California’s CAA waiver request claiming that EPA’s decision was flawed and reverses decades of previous decisions in which no waiver request was ever denied.