Energy and Environment Monitorwww.eem.jacksonkelly.com

Fourth Circuit Affirms Issuance of Valley Fill Permit

For the fifth time, the United States Court of Appeals for the Fourth Circuit has turned back a challenge by anti-mining groups to the permits needed to conduct surface mining in Central Appalachia¹.  See Opinion here. On May 15, 2013, a unanimous three-judge panel affirmed an earlier determination by a West Virginia district court that the Corps of Engineers complied with both the Clean Water Act and NEPA in issuing a §404 “fill” permit to Highland Mining for a surface mine in southern West Virginia. Prior discussions of the District Court proceeding appear at “Court Denies Motion to Supplement Complaint With Hendryx Studies”; “Court Rebuffs Challenge to Valley Fill Permit”; and “Federal Courts Deny Environmental Groups’ Requests to Suspend Valley Fill Permit Pending Appeal.”

 

On appeal, the Sierra Club argued that the Corps had “misapprehended” the baseline water quality in waters draining the fill area at issue and, consequently, could not accurately assess the impact of the fill discharges. Additionally, it argued that the Corps had irrationally rejected claims that conductivity discharged by the permitted operation would cause cumulatively significant adverse effects to aquatic life. In both instances, the Court determined that the Corps understood the baseline and adequately considered potential cumulative impacts. As noted by the Court, “[c]ontrary to the Environmental Coalition’s contention that the Corps failed to take a hard look at conductivity and stream impairment, the record amply shows that the Corps grappled with the issue extensively.” Ultimately, the Court noted that once it determined that the Corps had taken a “hard look” at the environmental consequences, the Appellants’ position was “reduced to no more than a substantive disagreement with the Corps,” and that the review of the courts is limited and may not be used to second-guess substantive decisions committed to agency discretion. 

 

In a concurring opinion, Judge J. Harvie Wilkinson expressed concern that the Corps had approved a permit that would increase conductivity levels in a stream already on the State’s list of biologically “impaired” waters. He observed the EPA had expressed “significant concerns” about compliance with water quality standards, but ultimately concluded that the courts are a poor substitute for candid review by federal agencies. He noted that if the Court had seized solely on EPA’s expression of concerns, “I fear we would stifle the very agency candor and applicant responsiveness that is essential to the proper functioning of the administrative process and, ultimately, to the goal of natural resource protection.”

 

Highland Mining was represented by Jackson Kelly.

 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

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¹See:

 West Virginia Coal Ass’n v. Bragg, 248 F.3d 275 (4th Cir. 2001) (11th amendment prohibits suit against State to enforce federally-approved State mining program);

Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) (excess spoil fills considered “fill material” with scope of Corps of Engineers CWA §404 authority);

Ohio Valley Envt’l Coalition v. Bulen, 429 F.3d 493 (4th Cir. 2005) (affirming condition in then-existing NWP 21 which allowed Corps to verify on case-by-case basis that NWP authorization would result in no more than minimal adverse impacts); and

Ohio Valley Envt’l Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (affirming Corps’ treatment of in-stream sediment ponds as “waste treatment systems” excluded from “waters of U.S.” and affirming Corps’ review and approval of mitigation regarding four individual CWA §404 permits).

EPA Issues Guidance on Designations for 2012 Annual PM2.5 NAAQS

On April 16, 2013, EPA issued a guidance memorandum on designations to implement the revised primary annual fine particle (PM2.5) National Ambient Air Quality Standard (NAAQS) that was promulgated December 14, 2012 (78 Fed. Reg. 3086; Jan. 15, 2013). The memorandum, titled “Initial Area Designations for the 2012 Revised Primary Annual Fine Particle National Ambient Air Quality Standard,” sets forth EPA’s schedule and process for initially designating areas as attainment, nonattainment, or unclassifiable for the 2012 PM2.5 NAAQS. In addition, the memorandum identifies five factors that EPA intends to evaluate in making boundary decisions for nonattainment areas. The 2012 PM2.5 NAAQS tightened the primary annual PM2.5 standard from 15.0 micrograms per cubic meter (ug/m³) to 12.0 ug/m³.

 

Below is EPA’s anticipated timeline for designations to implement the 2012 standard:

 

Milestone	Date
Promulgation of 2012 PM2.5 NAAQS.	December 14, 2012
State recommendations for PM2.5 designations.	No later than December 13, 2013
EPA notifies states concerning any intended modifications to their recommendations, commonly known as EPA’s 120-day letters.	No later than August 14, 2014
EPA publishes a Federal Register notice of state recommendations and EPA’s intended modifications, if any, and starts a 30-day public comment period.	No later than August 29, 2014
End of 30-day public comment period.	No later than September 29, 2014
States submit additional information, if any, to respond to EPA’s modification of a recommended designation.	No later than October 29, 2014
EPA promulgates final PM2.5 designations.	No later than December 12, 2014

States must base their recommendations on air quality data from the three most recent years of monitoring data available, i.e., 2010-2012. If quality-assured (QA), certified air quality monitoring data from 2013 is available before EPA makes its final designation decisions in 2014, EPA will base its final decisions on air quality data from 2011-2013. The specific three years of air quality data on which EPA bases designations is important because air quality continues to improve under the Clean Air Interstate Rule or CAIR. As a result, the number of areas in nonattainment and the design values (a statistic used to describe the air quality status of a given location relative to the level of the NAAQS) for nonattainment areas will likely decrease.

 

The initial designations will not include data from the new near-road monitors required by the final rule for the revised primary annual PM2.5 standards. Because EPA is not requiring placement of the first phase of near-road monitors until January 1, 2015, three complete calendar years of QA, certified air quality monitoring data from these new monitors will not be available until 2018.

 

The memorandum also provides EPA’s revised schedule for states to flag and document air quality data influenced by “exceptional events,” such as wildfires or dust events, which may be excluded in identifying violations of the 2012 standard. For air quality data collected for calendar years 2010, 2011, and 2012, states must flag any exceptional events and submit an initial description of the event by July 1, 2013, and provide detailed documentation of the event by December 12, 2013. For air quality data collected for calendar year 2013, states have until July 1, 2014, to flag exceptional events, if any, and submit an initial description of the event and until August 1, 2014, to provide detailed documentation of the event.

 

EPA is not setting a threshold contribution level or bright-line test for determining whether an area should be included within the boundaries of a given nonattainment area. Instead, boundary determinations will be made on a case-by-case basis. After identifying each violating monitor, states are to consider those counties and the entire metropolitan area (e.g., Core Based Statistical Area (CBSA) or Combined Statistical Area (CSA)) in which the violating monitor is located. Any adjacent counties to the CBSA or CSA that have the potential to contribute must also be evaluated. The CBSA or CSA is the “starting point” for the evaluation of contribution, and not a presumed nonattainment area boundary. States are to undertake an area-specific analysis using five factors and then synthesize those five factors into a “comprehensive narrative” that describes the relationship between emission sources in the area and the monitored violation using a weight-of-evidence approach. This weight-of-evidence approach could result in nonattainment areas consisting of the entire urbanized area, single counties, or partial counties.

 

The five factors are: (1) air quality data; (2) emissions and emissions-related data; (3) meteorology; (4) geography/topography; and (5) jurisdictional boundaries. For the designations for the 2012 annual PM2.5 NAAQS, EPA has grouped together emissions and emissions-related data, namely population density and degree of urbanization and traffic and commuting patterns, into one factor called the “emissions and emissions-related data” factor. In the designation guidance for the 1997 and 2006 PM2.5 standards, EPA identified nine factors to consider in making designation recommendations: (1) emissions data; (2) air quality data; (3) population density and degree of urbanization; (4) traffic and commuting patterns; (5) growth rates and patterns; (6) meteorology; (7) geography/topography; (8) jurisdictional boundaries; and (9) level of control of emission source. When EPA promulgated designations for the 2008 ozone standards, however, EPA grouped the emissions-related factors together in the “emissions and emissions-related data” factor, resulting in five overall factors. EPA is doing the same thing here with the designations for the 2012 annual PM2.5 standards. 

 

- Factor 1: Air Quality Data involves identifying all monitored violations (i.e., PM2.5 design values that exceed the standard), examining trends in PM2.5 air quality values throughout the most recent three calendar year period as well as the magnitude of quarterly or daily average PM2.5 concentrations over the course of each year, identifying the chemical components of PM2.5 mass in the area (e.g., sulfate, nitrate, organic, carbon mass, elemental carbon, and crustal material), and analyzing the “urban increment” or “urban excess” by calculating the difference between the ambient PM2.5 level at an urban area monitoring site and the ambient PM2.5 level at a nearby rural area monitoring site. 

 

- Factor 2: Emissions and Emissions-Related Data includes population density and degree of urbanization and traffic and commuting patterns as well as sources and levels of emissions of PM2.5-related pollutants. For the initial designations, EPA intends to examine emissions of sources of direct PM2.5, the major components of direct PM2.5 (organic carbon, elemental carbon, crustal material (and/or individual trace metal compounds)), primary nitrate and primary sulfate, and precursor gaseous pollutants (e.g., sulfur dioxide, nitrogen dioxide, volatile organic compounds, and ammonia), using the 2011 National Emissions Inventory version 1 data. 

 

- Factor 3: Meteorology, states may use a basic type of meteorological analysis involving assessing potential source-receptor relationships in the area using summaries of emissions, wind speed, and wind direction data, or a more sophisticated assessment involving modeling air parcel trajectories. Attachment 4 to the memorandum elaborates on wind speed and direction summaries/wind roses and HYSPLIT trajectory modeling. EPA states that while HYSPLIT trajectories alone do not conclusively integrate contribution to measured high concentrations of PM2.5, they might support discounting a region as contributing to PM2.5 concentrations. 

 

- Factor 4: Geography/Topography involves examination of physical features of the land that may define the airshed, such as mountains and valleys, and affect the formation of PM2.5 concentrations over an area.

 

- Factor 5: Jurisdictional Boundaries comes into play once the geographical extent of the area violating the PM2.5 standard in the nearby area contributing to violations is determined. EPA intends to consider jurisdictional boundaries in order to provide a clearly defined legal boundary to carry out the air quality planning and enforcement functions for nonattainment areas.   

 

According to the memorandum, the five factors are not exclusive. EPA states it “will also consider any other relevant information.” EPA acknowledges, for example, that “additional analytical approaches…may be useful to further evaluate information relevant to the factors, such as emissions data, air quality information, and meteorology, in an effort to better evaluate contribution from nearby areas.” Additional analyses identified in the memorandum that states may find useful are: (1) the weighted emissions score or WES that EPA used in the designations for the 1997 PM2.5 NAAQS; (2) the contributing emissions score or CES that EPA used in the 2006 24-hour PM2.5 NAAQS; and (3) source apportionment modeling. If states use source apportionment modeling, then EPA recommends at least one entire year be modeled and that states follow the relevant EPA guidance for photochemical modeling attainment demonstrations. EPA is not requiring states to conduct any of these additional analyses, however.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

D.C. Circuit Court Upholds EPA Veto of CWA §404 Permit After Permit-Issuance

On April 23, 2013, the United States Court of Appeal for the District of Columbia upheld EPA’s authority to retroactively veto Section 404 permits. The ruling comes as a disappointment to those in the coal industry seeking the certainty and finality in the CWA §404 permit context.

 

Background

 

The permit in question was related to Mingo Logan Coal Company’s U.S. Army Corps of Engineers Permit for the Spruce No. 1 Surface Mine in Logan County, WV.  The permit was originally issued in January of 2007. EPA waited until January 13, 2011 to exercise its “veto” power pursuant to Section 404(c) of the CWA, which provides EPA the authority to “prohibit the specification (including the withdrawal of specification)” of waters of the U.S. as a disposal site for fill material “whenever [it] determines…that the discharge…will have an unacceptable effect….” In exercising its “veto” power, EPA claimed valley fills associated with the mine will have adverse impacts on downstream water quality, which will in turn cause unacceptable impacts on aquatic life. However, all discharges of water from the fill area are regulated by an NPDES permit. That permit was issued by WVDEP after EPA withdrew objections to it years ago. The veto marked only the 13th time since 1972 that EPA had used its Clean Water Act veto authority, and the first time EPA had ever vetoed a previously permitted mine. 

 

The D.C. District Court Opinion

 

Mingo Logan sued EPA in the U.S. District Court for the District of Columbia, arguing that EPA’s “veto” was improper.  On March 23, 2012, Judge Jackson of the D.C. District Court overturned EPA’s retroactive veto.  The Court applied the two-step analysis articulated in Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). The Chevron two-step test applies where a court reviews an agency’s interpretation of the statute it administers.  First, the court must determine whether Congress has spoken directly to the precise question at issue.  If the intent of Congress is clear and unambiguous, then the court must give effect to the unambiguously expressed intent of Congress, and the inquiry is over.  The second step applies where the language of the statute is found to be silent or ambiguous with respect to the specific question.  If the statute is silent or ambiguous, the Court then determines whether the agency’s interpretation of the statute is a permissible construction of the statute.

 

EPA took the position that Section 404(c) authorized it to exercise its veto at any time—even after permit issuance.  Although Judge Jackson found the language of 404(c) to be ambiguous in isolation, she found that the statutory text as a whole and the legislative history of the statute ran counter to EPA’s claim that it could “withdraw specification” after permit issuance.  Thus, Judge Jackson ruled that EPA’s interpretation failed the first step of Chevron. The Court went on to determine that, even if there were ambiguity to the language, EPA’s position also failed under step two of the Chevron analysis. Here, the Court’s analysis was complicated by the fact that the Clean Water Act provides authority to both the Corps and EPA, and in such a case there is an argument that EPA is owed no deference. However, the Judge ruled that, even according EPA some deference, EPA’s interpretation of its authority to allow it to exercise its 404(c) authority after the Corps had issued a permit was unreasonable.  The Court used a variety of strong language in discussing EPA’s interpretation, characterizing it as illogical and impractical, along with stating that EPA had resorted to “magical” thinking. 

 

Of note, the Court pointed to the various amici briefs filed expressing concern with eliminating finality from the permitting process as additional grounds for finding EPA’s interpretation to be unreasonable. It thus relied on the primary argument made by industry—certainty of a permit is a foundation of the permitting process.  The Court’s opinion is also notable for its strong language in places, making such statements as: EPA’s “reading does not exactly leap off the page” and “[t]his is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute.” 

 

The Circuit Court Opinion

 

On appeal, the Circuit Court of Appeals reversed the District Court, focusing on the plain language of the statute.  The Appeals Court focused on the Oxford Dictionary definitions of two key statutory terms, “whenever” (“at whatever time, no matter when”) and “withdrawal” (“[t]o take back or away something that has been given, granted, allowed, possessed, enjoyed, or experienced”), in ruling that the CWA “imposes no temporal limit on the [EPA] Administrator’s authority to withdraw the Corps’ specification ‘whenever’ he makes a determination that the statutory ‘unacceptable adverse effect’ will occur.”  The Court stated that the statute’s use of the expansive conjunction, “whenever,” demonstrated Congress’s “intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.” 

 

Additionally, the Court found that the Corps “specifies” areas for fill in the final permit itself.  Thus, the Court reasoned EPA’s veto power can only be exercised post-issuance.  The Court also noted that the Corps has consistently maintained its right to exercise a post-issuance veto for approximately thirty years.  The Appeals Court rejected Mingo Logan’s arguments that EPA’s veto conflicted with: (1) the plain statutory language; (2) section 404 as a whole; and (3) the legislative history of section 404(c). 

 

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.

Court Finds BLM Failed To Comply with Appropriate Procedure Under NEPA in Issuance of Oil & Gas Leases and Plaintiffs File Subsequent Suit Against BLM

The United States District Court for the Northern District of California recently released a decision—Center for Biological Diversity and Sierra Club v. The Bureau of Land Management and Ken Salzar, Secretary of the Department of the Interior, Case No. 11-6174 PSG holding that the Bureau of Land Management (BLM) erred by issuing an oil and gas lease without fully evaluating the environmental impact of hydraulic fracturing  as required by National Environmental Policy Act (NEPA).  

Plaintiffs challenged BLM and Interior Secretary Ken Salazar’s sale of four oil and gas leases for approximately 2,700 acres of federal land in Monterey and Fresno counties, California in the Monterey Shale Formation.  The Monterey Shale Formation is estimated to contain over 15 billion barrels of oil, or 64% of the nation’s total shale oil reserve.   Plaintiffs claimed the leases were sold in violation of the Mineral Leasing Act of 1920 (MLA) and NEPA.  

In 2011, BLM proposed an oil and gas lease sale for the Monterey Shale Formation and also issued an environmental assessment (EA), evaluating the environmental impacts of the proposed sale.  The BLM left out any discussion of the potential impacts of hydraulic fracturing in its EA, which provided “these issues are outside the scope of this EA because they are not under the authority or within jurisdiction of the BLM.”  Additionally, the EA noted that hydraulic fracturing “was not relevant to the analysis of environmental impacts …because the reasonable foreseeable development scenario anticipates very little (if any) disturbance to human environment.”  After the issuance of the EA, the BLM issued a Finding of No Significant Impact (FONSI) and the lease sale went forward.  

The Court found that the BLM did not meet its obligations under NEPA which requires federal agencies to take a hard look at the environmental impacts of their proposed actions.  NEPA also requires that agencies prepare Environmental Impact Statements (EIS) for all actions which will pose a significant harm to the environment.  

The Court found that BLM erred in issuing a FONSI without first providing a statement of reasons why the environmental impacts stemming from the project would be insignificant.  The Court pointed out that the BLM’s assertion that hydraulic fracturing was outside of their jurisdiction was flawed and that the BLM should have taken the possible environmental impacts of hydraulic fracturing into consideration.  The Court noted possible environmental concerns related to hydraulic fracturing; however, the Court did not address policy issues relating to hydraulic fracturing.  

The Court found that the lease terms did not violate the MLA and limited its holding to the BLM’s failure to comply with NEPA.  The Court declined Plaintiff’s request to invalidate the lease sale in favor of requiring the parties to confer and submit an appropriate judgment to the Court. 

Shortly after this decision, the same environmental groups filed a similar complaint for declaratory and injunctive relief in the United States District Court for the Northern District of California San Jose Division on April 18, 2013.  Plaintiffs again claim that BLM’s decision to lease lands for oil and gas development in Monterey County, San Benito County, and Fresno County, California violates the Administrative Procedure Act (APA), 5. U.S.C. §§701-706 and NEPA, 42 U.S.C. §§4321 et seq., because the BLM fails to address the environmental impacts of hydraulic fracturing in its NEPA analysis. 

This article was co-authored by Emily M. Renzelli and Laura G. Swingle, Jackson Kelly PLLC.

Kentucky Wastewater Laboratory Certification Update

In response to numerous citizen suits brought by various environmental groups alleging a failure by the Kentucky Department for Environmental Protection to properly monitor and address alleged Clean Water Act violations by KPDES permit holders, the Commonwealth passed Kentucky Revised Statute 224.10.670.  The statute granted the Energy and Environment Cabinet the authority to promulgate regulations establishing a certification program and standards for the operation of laboratories relating to analyses and laboratory tests for wastewater pollution. 

The Cabinet drafted 401 KAR 5:320, establishing the Kentucky Wastewater Laboratory Certification Program.  The Division of Water has also drafted a manual, incorporated by reference in 401 KAR 5:320, establishing the technical procedures and minimum requirements of the Certification Program.  The regulation, and the incorporated manual, were recently subjected to a period of Public Comment and received a Public Hearing on April 30, 2013.  The regulation is currently scheduled to be presented to the Administrative Regulation Review Subcommittee on May 14, 2013. 

It is expected that the regulation will be finalized and promulgated in July of 2013.  Beginning July 1, 2014, any analyses and laboratory tests submitted for activities subject to the Clean Water Act must be performed by a certified laboratory and in compliance with this regulation. 

The regulation sets forth that the first year from its promulgation will consist of the granting of interim certifications upon receipt of a qualified application and an initial demonstration of capability.  Division of Water plans to conduct on-site audits of each laboratory granted an interim certification to determine whether the laboratory will be formally certified.  Following the initial audits to determine formal certification, the certified laboratories will be audited at least once every five years.  Division of Water will audit for technique on analytical methods, documentation, and quality control performance.  Additionally, the laboratories will be required to submit a Proficiency Test Samples to the Division of Water annually to retain its certified status. 

The draft regulation may be viewed at: http://www.lrc.state.ky.us/kar/401/005/320reg.htm.   The Wastewater Laboratory Certification Manual can be viewed at: http://water.ky.gov/Documents/Regulations/WW%20Lab%20Cert%20Manual%20File%20Version.pdf.  The Manual sets forth requirements relating to record-keeping, quality assurance/quality control, equipment, supplies, field sampling, analysis procedures, methodology, proficiency testing, reporting requirements, and maintaining certification. 

This article was authored by Laura P. Hoffman, Jackson Kelly PLLC. For more information on the author, see here.

Hazardous Waste Generator Requirements

The federal Resource Conservation and Recovery Act (RCRA) provides a systematic structure for managing hazardous waste. The Environmental Protection Agency (EPA) identifies hazardous waste generators as any person, by site, whose processes or actions create hazardous waste. Generators are separated into three categories based upon the quantity of hazardous waste they produce:

·         Large Quantity Generators (LQGs) generate 1,000 kilograms per month or more of hazardous waste, more than 1 kilogram per month of acutely hazardous waste, or more than 100 kilograms per month of acute spill residue or soil.

 

·         Small Quantity Generators (SQGs) generate more than 100 kilograms, but less than 1,000 kilograms, of hazardous waste per month.

 

·         Conditionally Exempt Small Quantity Generators (CESQGs) generate 100 kilograms or less per month of hazardous waste, or 1 kilogram or less per month of acutely hazardous waste, or less than 100 kilograms per month of acute spill residue or soil.

 

Hazardous waste as defined in 40 CFR 261.3 is a solid waste that is not specifically excluded as a hazardous waste and falls within two distinct categories:

 

·         It is a listed hazardous waste in Subpart D of 40 CFR 261; or

 

·         It is a characteristic hazardous waste, which is not a listed waste, but that exhibit ignitability, corrosivity, reactivity, or toxicity. 

 

Prior to the storage, treatment or disposal of any waste a determination whether the material is hazardous or nonhazardous is required by 40 CFR 262.11. The generator characterizes hazardous waste based on the aforementioned criteria. If the characteristics of the waste is unidentifiable through available information, including material safety data sheets (MSDS) or other data, testing may be required. 

 

If onsite treatment eliminates the hazardous characteristics, the material may no longer be considered a hazardous waste. Documentation of this process and the volume of the material must be maintained. Other regulations regarding treatment may apply and a thorough review of treatment process and resultant by-products is recommended. Additionally, State requirements for onsite treatment that eliminates hazardous characteristics may be more stringent than RCRA regulatory requirements. 

 

General Management for Hazardous Wastes

 

Each site where non-exempt hazardous waste is generated is required to obtain its own site specific EPA hazardous waste generator identification (ID) number.   The issuance of the ID number may be processed through the State if authorized by the EPA. 

 

A LQG may accumulate hazardous waste on-site for 90 days or less without obtaining a permit or without having interim status, provided that the facility complies with the management standards in Part 265. A SQG may accumulate up to 6,000 kg of hazardous waste for 180 days or less without obtaining a permit or without having interim status, provided that the facility complies with 40 CFR 262.34(d). If the SQG waste shipment is transported off-site for disposal in excess of 200 miles, the waste can be stored onsite for a maximum of 270 days. The time period for waste accumulation begins on the day accumulation first begins and containers must be marked with date accumulation first begins. All accumulation containers must be clearly labeled as “hazardous waste”. 

 

A 30-day accumulation extension for the EPA Regional Administrator or the State RCRA program coordinator is available for each of the 90-day, 180-day, and 270-day accumulation periods, if uncontrolled or unforeseen circumstances prohibit ship of the waste within the allotted time frame.

 

Facilities may accumulate up to 55 gallons of hazardous waste or 1 quart of acute hazardous waste in a satellite accumulation area at or near the area where the waste is initially generated and removed to the main hazardous waste storage area or transport the waste off site within three days of reaching the maximum quantity allowable. Satellite accumulation containers must have appropriate labeling and the operator must maintain the container in good condition in accordance with 40 CFR 262.34(c).  

 

A CESQG is not subject to the management standards provided in 40 CFR Parts 262 through 270 assuming they do not generate more than 100 kilograms or less per month of hazardous waste, or 1 kilogram or less per month of acutely hazardous waste, or less than 100 kilograms per month of acute spill residue or soil.   Hazardous wastes must be sent to a facility property licensed or authorized to manage hazardous waste.

 

Each site for LQG, SQGs, and CESQGs should maintain a log or tracking of the generation per month. Maintaining a log is not required; however, it is the most reliable method to determine and document what is generated each month.  

 

Transportation Requirements

 

Preparation for shipping of hazardous waste off site for treatment, storage, or disposal requires marking, labeling, and placarding the waste according to US Department of Transportation (DOT) requirements.   Additional DOT requirements for shipment of the waste are located in 49 CFR Parts 172 through 179. The shipment must include the properly completed Uniform Hazardous Waste Manifest signed by the generator, the transporter, if different than the generator and the receiving facility upon receipt of the shipment.  

 

The statement on the Uniform Hazardous Waste Manifest must state:

 

I certify that the waste minimization statement identified in 40 CFR 262.27(a) (if I am a large quantity generator) or (b) (if I am a small quantity generator) is true.

 

Record Keeping and Reporting

 

A generator must keep a copy of each manifest signed in accordance with §262.23(a) for three years or until the generator receives a signed copy from the designated facility which received the waste. The signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter.

 

LQGs and SQGs that ship hazardous waste off site must submit a Biennial Report to EPA each even numbered year. The report compiles data concerning waste shipped off site, where the waste was shipped and the manner in which the waste was treated, among other information. The Biennial Report must be retained for three years from the due date of the report.

 

The generator also must keep records of test results, waste analyses, and other determinations performed in accordance with §262.11 for a minimum of three years.

 

Waste Minimization

 

RCRA mandates, where feasible, that the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible (RCRA §1003(b)). A Waste Minimization Program is required for LQGs while all generators are also included in the mandate

 

Small quantity generators must make a good faith effort to minimize waste generation and select the best waste management method that is available and affordable.

 

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

Climate Change Headlines:

04/24/13: Consensus and Controversy: New Report On The Global Warming “Battlefield”

Right Side News

http://www.rightsidenews.com/2013042332408/life-and-science/energy-and-environment/consensus-and-controversy-new-report-on-the-global-warming-battlefield.html

 

04/24/13: Oliver L Campbell : Climate Change

Petroleumworld.com

http://www.petroleumworld.com/editorial13042401.htm

 

04/24/13: The climate change movement is not resonating with the public

The Independent Weekly

http://www.indyweek.com/indyweek/the-climate-change-movement-is-not-resonating-with-the-public/Content?oid=3623855

 

04/25/13: Dr. Roy Spencer on Global Warming, 'No one knows'

Catholic Online

http://www.catholic.org/green/story.php?id=50654

 

04/25/13: Global warming: Do you know or think you know?

Washington Times

http://communities.washingtontimes.com/neighborhood/lower-9th-ward-conservative/2013/apr/25/global-warming-do-you-know-or-think-you-know/

 

04/25/13: Is climate change real? Or an excuse to push a "green" agenda?

Penn Live

http://www.pennlive.com/midstate/index.ssf/2013/04/many_still_doubt_climate_chang.html

 

04/26/13: Still Another Low Climate Sensitivity Estimate

Cato Institute (blog)

http://www.cato.org/blog/still-another-low-climate-sensitivity-estimate-0

 

04/27/13: Climate-change hysteria a folly

The Australian

http://www.theaustralian.com.au/opinion/editorials/climate-change-hysteria-a-folly/story-e6frg71x-1226629619257

 

04/28/13: The Disgraceful Episode Of Lysenkoism Brings Us Global Warming Theory

Forbes

http://www.forbes.com/sites/peterferrara/2013/04/28/the-disgraceful-episode-of-lysenkoism-brings-us-global-warming-theory/

 

04/28/13: Peter Kent's Earth Day gift to Canadians: 24 hours without the climate scare

Canada Free Press

http://canadafreepress.com/index.php/article/54796

Industry Groups and States Seek U.S. Supreme Court Review of D.C. Circuit Decision Involving EPA’s Suite of Greenhouse Gas Regulations

Industry groups and states recently filed petitions in the U.S. Supreme Court, seeking review of the D.C. Circuit’s June 26, 2012, decision in Coalition for Responsible Regulations, Inc. et al. v. EPA, 684 F.3d 102 (D.C. Cir. 2012). The decision addressed challenges to the following suite of EPA rules regulating greenhouse gases (GHGs) under the Clean Air Act: (1) the Endangerment Finding (74 Fed. Reg. 66,496; Dec. 15, 2009) and EPA’s denial of reconsideration of that finding (75 Fed. Reg. 49,556; Aug. 13, 2010); (2) the Tailpipe Rule (75 Fed. Reg. 25,324; May 7, 2010); (3) the Timing Rule (75 Fed. Reg. 17,004; April 2, 2010); and (4) the Tailoring Rule (75 Fed. Reg. 31,514; June 3, 0210).   EPA promulgated these GHG regulations following the U.S. Supreme Court’s ruling in Massachusetts v. EPA, 549 U.S. 479 (2007), that the Act’s general definition of “air pollutant” was broad enough to encompass GHGs and that GHGs were an “air pollutant” that was potentially eligible for regulation under the mobile source provisions in Title II of the Act. For additional information about the various petitioners seeking U.S. Supreme Court review and their arguments, continue reading.

 

·         The petition filed by the Utility Air Regulatory Group (UARG), a trade association of electric utilities and electric generating companies, seeks review of the D.C. Circuit’s decision insofar as it pertains to EPA’s Tailoring and Timing Rules.   The UARG petition emphasizes that unlike the pollutants sulfur dioxide (SO₂), nitrogen oxides (NOx) and particulate matter (PM), which are regulated under the Title I stationary source provisions of the Clean Air Act, carbon dioxide (CO₂) does not deteriorate the quality of the air that people breathe. UARG argues that Massachusetts v. EPA does not compel regulation of GHGs under the Clean Air Act’s preconstruction and operating permit programs for stationary sources such as power plants. UARG also argues that U.S. Supreme Court review is needed to address the D.C. Circuit’s decision that petitioners lack standing to challenge the Timing and Tailoring Rules. The Washington Legal Foundation, a non-profit, public interest law and policy center based in Washington, D.C., filed an amicus curiae brief in support of UARG. WLF asserts that the U.S. Supreme Court needs to limit the applicability of Massachusetts to regulation of motor vehicle GHG emissions. For the text of the petition and amicus brief, click here and here.

 

·         The state of Virginia filed a petition focusing on EPA’s Endangerment Finding and denial of reconsideration of that finding, arguing that evidence of “central relevance” to EPA’s Endangerment Finding that was not available during the comment period obligated the Administrator to convene a proceeding for reconsideration with procedural rights of notice and comment. Virginia also argues that EPA’s reasons for relying on the Intergovernmental Panel on Climate Change (IPCC) were undermined by the “climategate” data, namely internal emails and computer files from the University of East Anglia’s Climatic Research Unit, provided in the reconsideration petitions. Finally, the Virginia petition asserts that EPA impermissibly delegated its statutory authority to outside entities. Kentucky and Utah joined in the petition on the Endangerment Finding delegation issue. For the text of the petition, click here.

 

·         The Pacific Legal Foundation, a nonprofit organization, filed a petition, arguing that the Endangerment Finding must be set aside because EPA violated the congressional mandate to submit the proposed Endangerment Finding to the Science Advisory Board for peer review as required by the Clean Air Act. For the text of the petition, click here.

 

·         The petition filed by the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation and the Glass Packaging Institute focuses on EPA’s Tailoring Rule and use of the stationary source permitting provisions in the Clean Air Act to regulate GHGs. They argue that the D.C. Circuit used a mistaken approach to statutory construction and erred in determining that the Clean Air Act unambiguously requires application of the Title I Prevention of Significant Deterioration preconstruction and Title V operating permit programs to GHGs. For the text of the petition, click here.

 

·         The American Chemistry Council (ACC) petition, which the West Virginia Manufacturers Association and other industry groups joined, focuses on the Tailoring Rule and argues that the D.C. Circuit violated principles of statutory construction in accepting EPA’s interpretation of the Act that the Agency concedes produces absurd results and allowing EPA to rewrite the statutory thresholds established by Congress for the stationary source permit programs when a reasonable, alternative interpretation existed. The ACC petition would have the U.S. Supreme Court limit the PSD permitting trigger to “NAAQS air pollutants,” namely SO₂, NOx, PM, lead, carbon monoxide, and ground-level ozone which have national ambient air quality standards. The ACC petition also argues that review by the U.S. Supreme Court is warranted because of the “extraordinary national importance” of EPA’s regulation of GHG emissions. Other industry groups joining in the ACC petition are: American Frozen Food Institute; American Fuel & Petrochemical Manufacturers; American Iron and Steel Institute; American Petroleum Institute; Brick Industry Association; Clean Air Implementation Project; Corn Refiners Association; Glass Association of North America; Independent Petroleum Association of America; Indiana Cast Metals Association; Michigan Manufacturers Association; Mississippi Manufacturers Association; National Association of Home Builders; The National Association of Manufacturers; National Federation of Independent Business; National Oilseed Processors Association; North American Die Casting Association; Portland Cement Association; Specialty Steel Industry of North America; Tennessee Chamber of Commerce and Industry; Western States Petroleum Association; and Wisconsin Manufacturers and Commerce. For the text of the petition, click here.

 

·         The Chamber of Commerce of the United States, the State of Alaska, and American Farm Bureau Federation jointly filed a petition, arguing that EPA improperly relied upon the absurd results doctrine and that EPA's Endangerment Finding was “not in accordance with law” or was “arbitrary, capricious [and] an abuse of discretion.”  The petition also challenges the Tailoring Rule, arguing that EPA incorrectly determined that GHG emissions from stationary sources must also be addressed under the Act’s PSD and Title V permitting programs once regulated under mobile source provisions of the Act. For the text of the petition, click here.

 

·         The Coalition for Responsible Regulation, Alpha Natural Resources, Great Northern Project Development, and National Cattlemen’s Beef Association jointly filed a petition, focusing on whether EPA can properly impose GHG regulations that do not meaningfully mitigate the climate change risks identified as the basis for adoption of the regulations.  They argue that “by concluding that EPA must regulate without showing that its rules will have any appreciable effect on the risk identified, the [D.C. Circuit panel] imputes to Congress the implausible intent of compelling futile regulation.” For the text of the petition, click here.

 

·         The Southeastern Legal Foundation, Inc., a non-profit constitutional public interest law firm and policy center that advocates limited government, individual economic freedom, and the free enterprise system, along with other industry groups, and twelve members of Congress, jointly filed a petition arguing that EPA may not properly exercise authority over GHG emissions where EPA acknowledges that its interpretation of the Clean Air Act produces absurd results and is impossible to administer, particularly where there are alternative interpretations of the Act. The petition also argues that the D.C. Circuit erred in concluding that none of the petitioners had standing to challenge the Timing and Tailoring Rules. The twelve member of Congress joining the petition are: U.S. Representative Michele Bachmann; U.S. Representative Joe Barton; U.S. Representative Marsha Blackburn; U.S. Representative Kevin Brady; U.S. Representative Paul Broun; U.S. Representative Phil Gingrey; U.S. Representative Steve King; U.S. Representative Jack Kingston; U.S. Representative Tom Price; U.S. Representative Dana Rohrabacher; U.S. Representative John Shimkus; and U.S. Representative Lynn Westmoreland. The other industry groups joining the petition are: The Langdale Company; Langdale Forest Products Company; Langdale Timber Company; Langdale Farms, LLC; Langdale Fuel Company; Langdale Chevrolet, Inc.; Langdale Ford Company; Langboard, Inc. – MDF; Langboard, Inc. – OSB; Georgia Motor Trucking Association, Inc.; Collins Industries, Inc.; Collins Trucking Company, Inc.; Kennesaw Transportation, Inc.; J&M Tank Lines, Inc.; Southeast Trailer Mart, Inc.; Georgia Agribusiness Council, Inc.; Competitive Enterprise Institute; FreedomWorks; and Science and Environmental Policy Project. For the text of the petition, click here.

 

·         The states of Texas, Alabama, Florida, Georgia, Indiana, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, and the Louisiana Department of Environmental Quality jointly filed a petition, arguing that the Tailoring Rule violates the Clean Air Act by replacing Congress’s unambiguous numerical permitting thresholds, and that the D.C. Circuit “improperly ducked this question on Article III standing grounds.” These states also ask the U.S. Supreme Court to reconsider or overrule Massachusetts v. EPA in light of the “absurd permitting burdens” that result from regulating CO₂ as an air pollutant under the Act. For the text of the petition, click here.

 

The D.C. Circuit rejected all of these arguments in Coalition for Responsible Regulations, Inc. et al. v. EPA, 684 F.3d 102 (D.C. Cir. 2012). There, a three-judge panel of the D.C. Circuit consisting of Chief Judge Sentelle and Judges Rogers and Tatel denied petitions for review of the Endangerment Finding and Tailpipe Rule on the merits. The panel held that the Endangerment Finding was “consistent with Massachusetts and the text and structure of the [Clean Air Act].” and rejected the petitioners’ argument that EPA had failed to show “certain” endangerment of public health or welfare. The panel reasoned that “requiring that EPA find ‘certain’ endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it in [Clean Air Act] §202(a) – utilizing emission standards to prevent reasonably anticipated endangerment from maturing into concrete harm.” In upholding the Tailpipe Rule, the panel stated that EPA was, in essence, required to set forth the regulation having “determined that motor-vehicle emissions contribute to greenhouse gas emissions that, in turn, endanger the public health and welfare.” The panel further held that Petitioners lacked standing to challenge the Timing and Tailoring Rules, finding that Petitioners “failed to establish that the Timing and Tailoring Rules caused them ‘injury in fact,’ much less injury that could be redressed by the Rules’ vacatur.” According to the panel, “neither the Timing nor Tailoring Rules caused the injury Petitioners allege: having to comply with PSD and Title V for greenhouse gases.” Those injuries, the panel said, were caused by the statute and were not remediable by any judgment of the court. 

 

Following the adverse panel decision, petitioners sought rehearing en banc before all of the active judges of the D.C. Circuit. By 6-to-2 vote, the D.C. Circuit denied the petitions for rehearing en banc on December 20, 2012. Judge Brown concurred with the panel’s determination that EPA may regulate GHGs in tailpipe emissions but did so “reluctantly” and did not agree that Massachusetts compels the same result for the stationary source Title V and the PSD programs and dissented on that issue. Judge Kavanaugh dissented. He would interpret “air pollutant” for purposes of the stationary source permit programs as applying to only the six criteria pollutants or NAAQS air pollutants. He wrote: “EPA chose an admittedly absurd reading over a perfectly natural reading of the relevant statutory text. An agency cannot do that.” Petitions for a writ of certiorari followed. Initially, all petitions for a writ of certiorari were due March 20, 2013; however, some groups applied for and obtained an extension of time to file their petition until April 19, 2013. EPA’s and other respondents’ responses are currently due in May 2013.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

Sierra Club Petitions Department of Energy for Moratorium on New LNG Export

In light of the abundance of natural gas that has been unlocked from deeply buried shale gas plays, the United States is poised to become a net exporter of natural gas through the use of liquefied natural gas (“LNG”) terminals. The environmental activist group Sierra Club, however, is actively trying to prevent the development of the infrastructure needed for large-scale LNG export to become a reality. Sierra Club recently petitioned the Department of Energy to place a moratorium on approving new LNG export facilities until the agency performs a programmatic environmental impact assessment on LNG export and revises its rules for evaluating applications for LNG terminals. 

 

Sierra Club’s opposition to LNG export terminals is just one of many fronts on which this group is actively fighting the natural gas industry. On its “Beyond Natural Gas” website, Sierra Club claims:

 

Exporting Liquefied Natural Gas (LNG) to overseas markets is a dirty, dangerous practice that lets the industry make a killing at the expense of human health.

 

The U.S. Department of Energy’s Office of Fossil Energy has regulatory authority over LNG terminals and evaluates all applications for LNG import and export. Currently, sixteen (16) applications for LNG export facilities are pending. If all sixteen applications were approved in full, they would have the capacity to export 28.3 billion cubic feet of natural gas per day, a ten-fold increase over the country’s current natural gas exports.

 

For the Office of Fossil Energy to green light LNG terminals, the agency must determine that the export of gas is “consistent with the public interest.” The Natural Gas Act requires that LNG exports to countries with which the U.S. has entered free trade agreements “shall be deemed to be consistent with the public interest and applications for such importation or exportation shall be granted without modification or delay.” 15 U.S.C. §717b. Accordingly, the agency has already authorized the sixteen facilities to export LNG to the handful of countries with which the U.S. has entered free-trade agreements.¹ Currently, many of the largest and most lucrative markets for LNG export are countries without free-trade agreements with the U.S., such as Japan, India, and all of Europe. 

 

The Office of Fossil Energy can approve the export of LNG to non-free trade countries only after soliciting public comments, protests, and motions to intervene and then determining that the proposed project is consistent with the public interest. Sierra Club boasts that it has intervened in opposition to all of the applications for LNG export terminals that have come before Office of Fossil Energy. Thus far, only one LNG export terminal has been granted permission to ship LNG to non-free-trade countries.

 

Not content with merely opposing LNG exports on a project-by-project basis, Sierra Club recently petitioned the Office of Fossil Energy to solicit public comments on its policy of evaluating proposed LNG export projects and promulgate new regulations requiring that domestic consumers, domestic industry, and environmental and public health implications be considered when evaluating an application for LNG export facilities. Sierra Club also petitioned the agency to place a moratorium on new approvals of export terminals until a full programmatic environmental impact assessment of LNG export is conducted. 

 

Regardless of whether Sierra Club’s petition to the DOE is successful, this well-financed group is determined to oppose the development and marketing of natural gas in every conceivable way.  

 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author, see here.

 

[1] These free-trade countries include Australia, Bahrain, Canada, Chile, Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Jordan, Mexico, Morocco, Oman, Peru, and Singapore.

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