Energy and Environment Monitor

EPA Identifies Additional Classes Of Facilities In Development Of Financial Responsibility Requirements Under CERCLA §108(b)

    Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) requires the President to promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment or disposal of hazardous substances. Section 108(b) requires the President to identify those classes for which requirements will be first developed and publish a notice in the Federal Register. This responsibility has been delegated to EPA for non-transportation related facilities. 

    On July 10, 2009, EPA Administrator, Lisa Jackson, signed such a notice identifying hardrock mining facilities. In its notice, EPA expressed the belief that classes of facilities outside the hardrock mining industry might also warrant financial responsibility requirements under Section 108(b). The notice identified classes of facilities which EPA intends to examine in the future including: hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities and chemical manufacturers. EPA indicated that it would complete and publish in the Federal Register additional classes of facilities it plans to evaluate under Section 108(b) by December, 2009 and at that time would solicit public comment.  

    On January 6, 2010, EPA announced that it would be identifying classes of facilities within three industries – the Chemical Manufacturing industry (NAICS 325), the Petroleum and Coal Products Manufacturing industry (NAICS 324) and the Electric Power Generation, Transmission and Distribution industry (NAICS 2211) as those for which EPA plans to develop, as necessary, a proposed regulation identifying appropriate financial responsibility requirements. 

    EPA indicated that it would carefully examine specific activities, practices and processes involving hazardous substances at these facilities as well as Federal and State authorities, policies and practices to determine the risk posed by these classes of facilities and whether financial responsibility requirements would effectively reduce those risks. 

    In its July 2009 notice, EPA indicated that it would examine eight factors to determine the risk posed by particular classes of facilities. These factors are: (1) the amount of hazardous substances released into the environment; (2) toxicity of the substances; (3) existence and proximity of potential receptors; (4) contamination historically found from facilities; (5) whether the causes of this contamination still exist; (6) experiences from federal clean-up programs; (7) projected costs of federal clean-up programs; and (8) corporate structures and bankruptcy potential. In order to develop the list of facilities, EPA used information concerning sites on the National Priorities List ("NPL"), hazardous waste generation information from the Resource Conservation and Recovery Act ("RCRA") Biennial Report and data from the Toxic Release Inventory ("TRI"). 

    Examination of the NPL data revealed six industry sectors and one group of facilities on which EPA determined to focus further. These were (1) the Waste Management and Remediation Services industry; (2) the Chemical Manufacturing industry; (3) facilities engaged in recycling materials containing hazardous substances; (4) the Wood Product Manufacturing industry; (5) the Fabricated Metal Product Manufacturing industry; (6) the Electronics and Electrical Equipment Manufacturing industry; and (7) the Petroleum and Coal Products Manufacturing industry. Analysis of the RCRA Biennial Report data indicated that there are two industry sectors which generated the majority of hazardous waste -- the Chemical Manufacturing industry and the Petroleum and Coal Products Manufacturing industry which together with Hardrock Mining industry represent 80% of the RCRA hazardous waste generated by large quantity generators. 

    The TRI data was analyzed for 2007 and revealed two industry sectors identified in the NPL analysis were also among those reporting the largest quantities of on-site releases of hazardous substances – the Chemical Manufacturing industry and the Waste Management and Remediation Services industry.  

    The two industry sectors which according to EPA "emerged as clearly appropriate for consideration" were the Chemical Manufacturing industry and the Petroleum and Coal Products Manufacturing industry. In addition, EPA indicated that it was appropriate to identify classes of facilities within the Electric Power Generation, Transmission and Distribution industry for financial responsibility regulation. As to this latter sector, EPA noted that it ranked third in toxic release inventory analysis and that its low ranking in the RCRA Biennial Report analysis was the result of the "Bevill exempt" waste that the industry generated. In addition, EPA referenced the large release of coal ash from the Tennessee Valley Authority's Kingston Plant as a reason for including this sector.  

    In addition to the sectors mentioned above, EPA identified four additional sectors as requiring further study. These were Waste Management and Remediation Services industry; the Wood Products Manufacturing industry; the Fabricated Metal Product Manufacturing industry; and the Electronics and Electrical Equipment Manufacturing industry. In addition, EPA indicated that it would perform further study on an industry it identified as facilities engaged in recycling of materials containing CERCLA hazardous substances. 

This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.

Supreme Court Grants Intervention in Equal Apportionment Case

    The U.S Supreme Court held on January 20, 2010 that private parties may intervene in a suit brought between two states over the equitable apportionment of an interstate river. The case concerns a suit brought by South Carolina in 2007 against North Carolina alleging that the defendant state had authorized upstream transfers of water from the Catawba River basin that exceed North Carolina’s equitable share of the river. The Catawba River begins in North Carolina but flows in a generally southeasterly direction and forms part of the border between the two states in the metropolitan area of Charlotte. The river has been significantly dammed to provide a water supply for the urbanized areas of the two states and for hydroelectric power. 

    The dispute arose over a North Carolina statute under which that state has granted withdrawals of water from the Catawba to several North Carolina municipalities. South Carolina brought the suit under the infrequently used original jurisdiction of the Supreme Court to contest what it asserts is an excessive withdrawal of the available water in the river by the North Carolina users. After the suit was filed, three entities – a special municipal service agency comprised of two counties in each of the two states, and a subsidiary of Duke Power, and the City of Charlotte – each sought to intervene in the case. By a five-four decision, intervention was granted the first two entities, but not the city. 

    Intervention by non-state entities in original jurisdiction cases was recognized almost sixty years ago in New Jersey v. New York, 345 U. S. 369 (1953). “The standard for intervention in original actions by nonstate entities is high—and appropriately so.” (Opinion at 9). The reason is that a state in equal apportionment cases is, “a party to a suit involving a matter of sovereign interest,” it is parens patriae and “‘must be deemed to represent all [of] its citizens.’” 345 U. S., at 372–373 (quoting Kentucky v. Indiana, 281 U. S. 163, 173– 174 (1930)) (Opinion at 8). The majority found that North Carolina was acting on behalf of the City of Charlotte, but not on behalf of the Duke Power entity, or the Catawba River Water Supply Project, the two-county two-state special purpose municipal district. 

    It was this very idea of a state acting strictly as parens patriae for all of its citizens that lead Chief Justice Roberts and four other members of the Court to dissent. “The interests of a State’s citizens in the use of water derive entirely from the State’s sovereign interest in the waterway. If the State has no claim to the waters of an interstate river, then its citizens have none either.” (Dissent at 4). Both the opinion and the dissent base their reasoning on the sovereign interests that the states have in their waters, and the private property rights that riparian users derive from those sovereign interests. 

    The case is South Carolina v. North Carolina, No. 138, Orig. (January 20, 2010). For more information contact Blair Gardner at 304 340-1146. 

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

Pennsylvania Governor Directs DEP to Hire Additional 68 Staff

Governor Edward G. Rendell announced on January 28, 2010 that the commonwealth of Pennsylvania is strengthening its enforcement capabilities in order to protect residents and the environment from the impact of increased natural gas exploration. In order to increase the strength of enforcement capabilities, Governor Rendell has directed the Pennsylvania Department of Environmental Protection (DEP) to hire sixty-eight (68) new personnel. These new personnel are to be funded from higher permitting fees which were instituted in 2009. In addition, DEP plans to strengthen oil and gas regulations in an effort to improve well construction standards and define a drilling company’s responsibility for responding to gas migration issues. The changes in regulations are designed to prevent gas leaks that may pose risks to the public and water quality. Before going through DEP’s formal rulemaking process, the new regulations will be offered for public comment on January 29, 2010. 

Specifically, the new regulations will: 

• Require the casings of Marcellus Shale and other high-pressure wells to be tested and constructed with specific, oilfield-grade cement;
• Clarify the drilling industry’s responsibility to restore or replace water supplies affected by drilling;
• Establish procedures for operators to identify and correct gas migration problems without waiting for direction from DEP;
• Require drilling operators to notify DEP and local emergency responders immediately of gas migration problems;
• Require well operators to inspect every existing well quarterly to ensure each well is structurally sound, and report the results of those inspections to DEP annually; and
• Require well operators to notify DEP immediately if problems such as over-pressurized wells and defective casings are found during inspections. 

A copy of the press release in explaining this issue in detail can be found at the following web address, http://www.portal.state.pa.us/portal/server.pt/community/news_releases/14288. 

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

EPA Reportedly Re-examining Definition of “Fill Material” For Clean Water Act

There are rumors that EPA is considering changes to the regulatory definition of “fill material” to further regulate surface coal mining in the East and mine tailings disposal in the West. In the rugged terrain of central Appalachia, the coal industry needs to place excess spoil and coal refuse in the headwaters of small drainages, and requires a Clean Water Act Section 404 permit from the Corps of Engineers to do so. Last year, the Supreme Court ruled that the Corps could permit the disposal of tailings from gold processing in “waters of the United States” despite a “no discharge” provision in the effluent limitation guidelines applied to NPDES-regulated discharges in the industry. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 129 S.Ct. 2458 (2009); and 173 L.Ed.2d 1154.  

For over a decade prior to 2002, the Corps and EPA had inconsistent definitions of “fill material.” The Corps, for the purpose of narrowing the scope of its authority over unpopular landfills and the like, defined “fill” with a “primary purpose” test. If the purpose was to create dry land, then it was “fill.” But if the purpose was waste disposal, the material was not “fill” and, theoretically, you would have to get an NPDES permit rather than a Corps permit. EPA maintained a broader definition in the hope of tossing landfills, etc. back to the Corps. Its definition of “fill” used an “effects” test. If the effect of the discharge was to fill, regardless of the discharger’s purpose, then the material was considered “fill,” and the Corps was the appropriate permitting agency. Throughout the 1990s, anti-mining forces in the East sought to exploit this inconsistency as a vehicle for banning the issuance of 404 permits by the Corps.  See Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F. 23d 425 (4th Cir. 2003) (reversing district court decision holding that only material discharged with a “constructive purpose” may be considered “fill material” under Section 404 of the Clean Water Act). 

In 2000, the Corps and EPA, under the Clinton administration, proposed a joint definition using the “effects” test, and sought to make clear that spoil and refuse were “fill” regardless of the discharger’s purpose. 65 Fed. Reg. 21,292 (April 20, 2000). The rule was finalized in May 2002 under the Bush administration. 67 Fed. Reg. 31,129 (May 9, 2002) (codified at 33 C.F.R. Pt. 323 and 40 C.F.R. Pt. 232). Now it appears that EPA wants to tinker with it to address both the tailings issues in Alaska and surface coal mining.  

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

EPA Announces “Eyes on Drilling” Tip Line

On January 26, 2010, the EPA announced the creation of the “Eyes on Drilling” tip line. The tip line is intended for use by citizens to report non-emergency suspicious activity related to oil and natural gas development. According to the website given at the end of the press release to provide instructions about the tip line, the tip line is for the EPA’s Mid-Atlantic Region (Region 3) and to be used to report dumping and other illegal or suspicious hauling and/or disposal activities.  

According to the instructional website, the citizen informants are encouraged to record, to the extent possible, the location, date, time, and who was involved in the event, observations, activities, discharge destination, and environmental impacts. The website also suggests that photo and videos are great ways to document observations. A toll free number and email address was provided to contact the tip line.  

The EPA’s Mid-Atlantic Region includes the states of Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia. In EPA’s press release, the following rationale was provided to explain why the tip line was established. 

“Public concern about the environmental impacts of oil and natural gas drilling has increased in recent months, particularly regarding development of the Marcellus Shale formation where a significant amount of activity is occurring. While EPA doesn’t grant permits for oil and gas drilling operations, there are EPA regulations which may apply to the storage of petroleum products and drilling fluids. The agency is also very concerned about the proper disposal of waste products, and protecting air and water resources. 

EPA wants to get a better understanding of what people are experiencing and observing as a result of these drilling activities. The information collected may also be useful in investigating industry practices. 

The agency works closely with state and local officials, as well as industry and public interest groups, to ensure that oil and natural gas drilling occurs in a manner which is protective of human health and the environment and complies with applicable laws. The agency is also counting on concerned citizens to report unusual or suspicious activity related to drilling operations.” 

The instructional website can be found at the following web address: http://www.epa.gov/region03/marcellus_shale/tipline.html. 

This article includes publically available information, and was assembled by Rachel Shanteau, Acacia Environmental Group LLC. For more information on the author see here.

Kentucky Department for Natural Resources Unveils Spoil Handling Protocol

The Kentucky Department for Natural Resources (“KDNR”) recently released Reclamation Advisory Memorandum (“RAM”) #145 setting forth its newly developed Fill Placement Optimization Process (FPOP), a design protocol to minimize the impact on streams from mining operations while maintaining Approximate Original Contour (AOC). FPOP was developed by a group of engineers representing KDNR, the Army Corps of Engineers, the mining industry, a citizen’s group, and the federal Office of Surface Mining (OSM). They had been given the task of developing an engineering spoil handling protocol that meets the Surface Mining Control and Reclamation Act (SMCRA), AOC requirements and the alternatives analysis for minimizing stream impact required by the Clean Water Act. 

    According to KDNR, implementation of FPOP protocol will accomplish the following:

· Provide a process for achieving AOC while ensuring stability of backfill material and minimization of stream impact.

·     Determine a reasonable quantity of excess spoil that may be placed in excess spoil disposal sites such as valley fills and head of hollow fills.

·     Optimize the placement of spoil to reduce watershed impacts.

·     Provide a structured process for use in permit reviews and field inspections.

·     Maintain the flexibility necessary for the operator to address site-specific mining and reclamation conditions.

·     Establish a permit area tolerance linked to triggers, reducing over-permitting and consequently preserving stream impact minimization throughout the life of the mine. 

RAM #145 states that FPOP protocol shall be undertaken for all proposed steep slope surface coal mining applications.  Steep slope operations are defined in RAM #145 as all operations where the natural slopes exceed twenty (20) degrees.  However, RAM #145 exempts surface activities solely associated with underground mining or coal refuse facilities. In addition to requiring FPOP for steep slope operations, KDNR suggests that all coal applicants utilize the protocol, as it may facilitate the issuance of a corresponding 404 permit from the Army Corps of Engineers. 

A copy of RAM #145 may be obtained by visiting: http://www.minepermits.ky.gov/NR/rdonlyres/BA26E372-35CB-4124-A38E-AF5AB7388BA4/0/RAM145FINAL.pdf.  

This article was co-authored by Kevin McGuire and Mary Beth Naumann, Jackson Kelly PLLC. For more information on the authors see (McGuire) here and (Naumann) here. 

States Pushing Back on U.S. EPA’s Initiative to Regulate Greenhouse Gases for Economic Reasons

States’ comments on U.S. EPA’s proposed rule “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” give one reason to believe that states are beginning to push back on U.S. EPA’s initiatives to regulate greenhouse gases based on administrative and economic concerns. While states continue to support U.S. EPA’s efforts, many states are asking for: 

• additional legislation to regulate greenhouse gases,
• more time for state to increase their statutory and regulatory thresholds, and
• U.S. EPA to help provide states with the funding needed to implement the program. 

The National Association of Clean Air Agencies (NACAA) represents air pollution control agencies in 53 states and territories and over 165 major metropolitan areas across the United States. NACAA shares the states concerns over the need for additional greenhouse gas regulation, in addition to the high administrative burden of the proposed rule, insufficient time to revise state regulations, and U.S. EPA’s failure to ensure that “sufficient administrative resources are available at the time of the anticipated increase in workload.” Similarly, NESCAUM (representing the states of Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont) objects to the proposed rule because, it does not provide sufficient time and asks U.S. EPA to develop mechanisms that will create revenue streams to support permitting agencies. 

The state of West Virginia provided U.S. EPA with some particularly pointed comments including: “EPA has embarked on an unprecedented, and risky, attempt to regulate greenhouse gases under the federal Clean Air Act. The CAA was never designed nor intended to address this kind of air pollutant…one with no direct health impacts, that is emitted in quantities which are orders of magnitude greater than conventional pollutants.” It appears that many states, and West Virginia, in particular seek a fiscally responsible regulatory program for greenhouse gas and are concerned that U.S. EPA’s proposed rule “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” is not the answer. 

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

Recap: Blankenship-Kennedy Debate

Thousands packed the auditorium and tuned in on television and radio for the debate between Massey Energy CEO Don Blankenship and environmentalist Robert F. Kennedy, Jr. at the University of Charleston. The answer to the first question from mediator, and President of the University of Charleston, Dr. Edwin H. Welch, was a quick indicator of how the rest of the debate would be handled by each debater. Mr. Blankenship gave a clear and concise answer addressing the question, while Mr. Kennedy gave what essentially amounted to a speech highlighting a myriad of his issues and concerns with the coal industry.

Asked about his primary concerns for the future of energy, Mr. Blankenship stated that they were the security of this country and improving the quality of life in this country and throughout the world. This answer became somewhat of a theme for Mr. Blankenship, as he stated his concern for the health and well-being of people, which is dependent on their quality of life, which is heavily dependant on affordable electricity, which is heavily dependent on coal.

When asked the same question, Mr. Kennedy gave a 5 minutes speech sounding identical to parts of his speech (as well as many other speeches he has given across the nation concerning Appalachia and coal) from a rally at DEP last month, which highlighted his families’ ties to West Virginia along with his views against surface mining.

The audience, having a near equal number of supporters from both sides, was relatively subdued thanks to early pleas from Dr. Welch to hold-off applause until the end. At times, however, both debaters received loud applause for their answers to questions, or in Mr. Kennedy’s case, his 5 minute speeches concerning the perils of coal.

Although Dr. Welch did his best to keep the debate moving back-and-forth between the debaters, Mr. Kennedy’s long speeches made it difficult for the two debaters to have meaningful dialogue at times. However, Mr. Blankenship did attempt to address the specific issues raised by Dr. Welch as well as the numerous issues raised by Mr. Kennedy. After one of Mr. Kennedy’s tirades, Mr. Blankenship jokingly stated that he would attempt to address the 11 points raised by Mr. Kennedy.  Over the course of the debate, Mr. Blankenship stayed cool and calm, while Mr. Kennedy got very emotional at times, often resorting to personal attacks against Mr. Blankenship and Massey Energy.

Throughout the debate, Mr. Kennedy stated the many health and environmental issues he believed to be caused by coal, while Mr. Blankenship reminded Mr. Kennedy that many of his biggest issues with coal, such as the burning of coal and its contribution to Mercury in water, are primarily caused by other countries with much a higher usage of coal, such as China and India.

Mr. Kennedy also focused a great deal on alternative energy, such as wind and solar energy, as well as West Virginia’s need to switch its focus on these alternative energy sources. Mr. Blankenship responded to Mr. Kennedy’s pleas for alternative energy by making a simple, but powerful, argument that if it was profitable to build solar panel fields or wind farms, without government subsidies, then that is what would be happening. Stating that his company, and many others, is pouring hundreds of millions of dollars into the coal industry because that is where the investment will pay off in a free enterprise market.

While the security at the event mirrored that of international flight travel, the debate itself was a success, going off without much disturbance other than the occasional burst of applause.

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

Revisions to Area Source MACT For Gasoline Distribution and Dispensing Facilities

    December  15, 2009 EPA proposed revisions (74 FR 66470)  to the  Area Source MACT for Gasoline Distribution Facilities, 40 CFR 63 Subpart BBBBBB, applicable to bulk gasoline terminals and bulk plants, and Subpart CCCCCC, applicable to gasoline dispensing facilities, based on two petitions for reconsideration filed by the  Alliance of Automobile Manufacturers (Alliance)  and the  American Petroleum Institute (API).  EPA granted certain of the requests for reconsideration primarily to clarify the regulations, 40 CFR 63 Subpart BBBBBB and Subpart CCCCCC. There was no change in the compliance date for existing sources of January 10, 2011. The compliance date for New Sources (affected sources constructed since November 9, 2006) was January 10, 2008 or upon startup if startup occurs after January 10, 2008. Comments are due February 16, 2010. 

    The following sections: “Bulk Gasoline Plants and Terminals” and “Gasoline Dispensing Facilities” describe the proposed respective changes to the regulations:

Bulk Gasoline Plants and Terminals  

    The following are the proposed amendments to 40 CFR Part 63 Subpart BBBBBB:  

• Revision to the definition of ‘‘bulk gasoline plant’’ to clarify that gasoline from these facilities is subsequently loaded into gasoline cargo tanks for transport to GDFs. The proposed definition is as follows: ‘‘Bulk gasoline plant means any gasoline storage and distribution facility that receives gasoline by pipeline, ship or barge, or cargo tank and subsequently loads the gasoline into gasoline cargo tanks for transport to gasoline dispensing facilities, and has a gasoline throughput of less than 20,000 gallons per day. Gasoline throughput shall be the maximum calculated design throughput as may be limited by compliance with an enforceable condition under Federal, State, or local law and discoverable by the Administrator and any other person.’’

 

• Clarification that  that gasoline storage tanks located at bulk facilities, but used only for dispensing gasoline in a manner consistent with tanks located at a gasoline dispensing facility (GDF “Gasoline dispensing facility (GDF) i.e., any stationary facility which dispenses gasoline into the fuel tank of a motor vehicle).are not subject to any of the requirements in 40 CFR part 63, subpart BBBBBB, but instead, these tanks must comply with the applicable     requirements of 40 CFR part 63, subpart CCCCCC. Amendment to §63.11081. 

• Provision stating that if a bulk gasoline facility’s monthly throughput ever exceeds the definition of “bulk gasoline terminal, the source will still be subject to the provisions of Subpart BBBBBB even if later its monthly throughput threshold falls below the regulatory threshold. This  “once in always in” requirement is similar to other environmental requirements; the concept is that one cannot discontinue or disable a pollution control device even though the original criteria for installing the device are no longer met. 

• Amend item 1 in Table 1 to provide different controls for two types of gasoline storage tanks which have a capacity of less than 75 cubic meters (m3) as follows: 

▪ Add a capacity/throughput threshold below which small, infrequent-use gasoline storage tanks(capacity of less than 151 cubic meters and a throughput of less than 480 gallons per day)  would be required to be equipped with a fixed roof and covers on all openings that are to be maintained in a closed position at all times when not in use.  

▪Add a definition for surge control tanks and provisions requiring that they be equipped with pressure/vacuum (PV) vents with a positive cracking pressure of no less than 0.50 inches of water and that all openings are to be maintained in a closed position at all times when not in use. 

• Correct the definition of ‘‘vapor-tight cargo tank;’’ Vapor-tight gasoline cargo tank means:

a gasoline cargo tank which has demonstrated within the 12 preceding months that it meets the annual certification test requirements in §63.11092(f). 

Gasoline Dispensing Facilities (GDFs)  

Clarification that EPA intended to cover all public and private GDFs. The new proposed definition is:  

‘‘Gasoline dispensing facility (GDF) means any stationary facility which dispenses gasoline into the fuel tank of a motor vehicle, motor vehicle engine, nonroad vehicle, or nonroad engine, including a nonroad vehicle or nonroad engine used solely for competition. These facilities include, but are not limited to, facilities that dispense gasoline into on- and offroad, street, or highway motor vehicles, lawn equipment, boats, test engines, landscaping equipment, generators, pumps, and other gasoline-fueled engines and equipment.’’  

• An important revision addresses how to calculate throughput in determining whether stations are subject to the regulations. Revision is made to the definition of monthly throughput in §63.11132 to remove the reference to a ‘‘rolling 30-day average’’ and to add a clarification on how monthly throughput is calculated. This revision is intended to clarify that it was EPA’s intent that the monthly throughput is calculated by summing the volume of gasoline loaded into, or dispensed from, all gasoline storage tanks at each GDF during the current day, plus the total volume of gasoline loaded into, or dispensed from, all gasoline storage tanks at each GDF during the previous 364 days, and then dividing that sum by 12.  

• Proposed new paragraph stating that if a GDF’s monthly throughput ever exceeds an applicable monthly throughput threshold, the GDF will remain subject to those requirements even if the GDF’s monthly throughput later falls below the applicable monthly throughput threshold. (subparagraph (i) to §63.11111) 

• Proposed new paragraph stating that the dispensing of gasoline from fixed gasoline storage tanks at GDF into portable gasoline storage tanks for the on-site delivery and subsequent dispensing of the gasoline into the fuel tank of a motor vehicle or other gasoline-fueled engine or equipment used at the area source is subject to standards (subparagraph (j) to §63.11111)    

• Proposed new paragraph stating that owners or operators using portable gasoline containers that meet the requirements of 40 CFR part 59, Subpart F, (the Mobile Source Air Toxics Rule) will be considered in compliance (paragraph (d) to §63.11116) 

• New paragraph specifying the dates by which compliance demonstration for vapor balance systems at GDF with a gasoline throughput of 100,000 gallons or more are required (§63.11120(e) If the vapor balance systems were in place prior to January 10, 2008 it is considered compliant if system is required to comply, and complies, with either a 90-percent reduction in emissions, or uses management practices at least as stringent as those in must be conducted per the regulations. 

• New provision to allow storage tanks to have an additional option for submerged fill pipes that are further from the bottom of the tank than the distances previously specified in § 63.11117 (i.e. for tanks installed prior to 11/09/06 no more than 12 inches from bottom of tank; for tanks installed after 11/09/06 no more than 6 inches from bottom of tank) Owner/operator must be able to demonstrate that the liquid level in the tank is always above the entire opening of the fill pipe. Documentation providing such demonstration must be made available for inspection by delegated agency.  

• New paragraph (c) to § 63.11125 clarifying that cargo tank vapor tightness testing records must be kept for a period of 5 years, but adding that cargo tank owners or operators have the option of keeping only the current year’s records with the cargo tank and keeping records for the previous 4 years in the owner’s office if the records are instantly available. 

• Add a definition of ‘‘vapor-tight cargo tank,’’ correct the definition of ‘‘gasoline cargo tank,’’ and clarify that vapor tight testing records must be kept in the cab of the cargo tank for inspection by the facility operator. Proposed definition would read as follows: ‘‘vapor-tight gasoline cargo tank means a gasoline cargo tank which has demonstrated within the 12 preceding months that it meets the annual certification test requirements in §63.11092(f).’’ 

•Add definition of ‘‘gasoline cargo tank’’ clarified to reference “unloading” as well as “loading” operations  

• Add definitions for ‘‘gasoline,’’ ‘‘motor vehicle,’’ ‘‘nonroad engine,’’ and ‘‘nonroad vehicle’’ to ensure consistency with other rules 

• Amend the current definition of ‘‘gasoline dispensing facility’’ in §63.11132 to clarify intent to include all public and private stationary facilities that dispense gasoline into the fuel tanks of on- and off-road engines, vehicles, and equipment rather than just those facilities that dispense gasoline into the fuel tanks of motor vehicles.  

    The foregoing are only the primary changes proposed in the regulations, the proposed regulations should be reviewed for all of the revisions.    

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

Update: Sen. Feinstein Introduces Legislation to Prohibit Solar Energy on Vast Tracts of California Desert

I wrote in an April 2009 article published here that California Sen. Dianne Feinstein (D) intended to introduce legislation to make more than 500,000 acres in the Mojave Desert off-limits to wind or solar energy production. Sen. Feinstein has made not only made good on her promise, or threat - depending upon your perspective on this issue, the Senator has doubled down by attempting to prohibit renewable energy development of more than one-million acres of the Mojave. For comparison, this proposed area of additional protected desert lands exceeds the combined land area of Cabell, Putnam and Kanawha Counties in West Virginia. 

Background

California's Mojave Desert seemed to be ideally suited for solar energy production. The desert land in question lies in the southeast corner of California, between the existing Mojave National Preserve on the north and Joshua Tree National Park on the south.  But concern over what proposed solar energy projects might do to the aesthetics of the region, and potential impacts to its tortoise population, set up a clash between conservationists and companies seeking to develop renewable energy.  Nineteen companies had submitted applications to build solar or wind facilities on a parcel of 500,000 desert acres, but Sen. Feinstein has intervened to stop any such development on the public lands.   

In a 2008 speech, Gov. Arnold Schwarzenegger (R) complained about environmental concerns slowing down the approval of solar plants in California. "If we cannot put solar power plants in the Mojave Desert, I don't know where the hell we can put it." The California Energy Commission estimated that the state would need between 100,000 to 160,000 acres of desert lands for construction of wind and solar energy projects, in order to meet its 33 percent renewable energy generation target by the year 2020. 

Feinstein Moves to Block Energy Development from Mojave

On December 21, 2009, Sen. Feinstein introduced her legislation that is named the “California Desert Protection Act of 2010” (S.2921). Its centerpiece, the proposed Mojave Trails National Monument, would prohibit development on 941,000 acres of federal land and former railroad company property along a 105-mile stretch of old Route 66, between Ludlow and Needles. The proposed Sand to Snow National Monument, about 45 miles east of Riverside, would cover about 134,000 acres of federal land between Joshua Tree National Park and the San Bernardino National Forest in San Bernardino and Riverside counties. Its diverse habitats range from desert scrub to yellow pine forests 9,000 feet above sea level. 

The legislation, which had been delayed by efforts to resolve conflicts among environmentalists, off-roaders and renewable energy interests, would also designate 250,000 acres of public land near the Army's training center at Ft. Irwin as wilderness; add 41,000 acres to the southern boundary of Death Valley National Park and add 2,900 acres to northern portions of Joshua Tree National Park. 

Feinstein, author of the 1994 California Desert Protection Act, vowed to make the legislation a priority. "In the best-case scenario, this legislation could be approved by late 2010," she said in an interview. "This magnificent land and its lonely beauty are a significant part of our history, and we shouldn't give it up," Feinstein said, adding that private donors helped acquire the former railroad parcels "with the belief they would be protected from development. We have an obligation to keep them that way." 

The Bureau of Land Management is reviewing 130 applications for solar and wind-energy development in the California desert, covering more than 1 million acres of public land.

At least 19 renewable-energy projects have been suggested within the boundaries of the proposed Mojave Trails monument, according to Feinstein, who has discussed her concerns with Interior Secretary Ken Salazar. 

Feinstein's legislation would assist companies with projects currently proposed inside monument boundaries in relocating to federal energy zones being developed elsewhere. It would also permit construction of transmission lines within existing utility rights of way to facilitate the transfer of renewable energy generated in the Southern California desert and adjacent states. 

Some congressional Republicans accused Feinstein of engaging in a not-in-my-back-yard campaign when her plans for legislation restricting renewable energy projects in California deserts surfaced earlier this year. The senator countered that she "strongly" supports such projects, but only if they are built on "suitable" lands. 

A Chilling Effect in the Desert

But before the bill to create two new Mojave national monuments has even had its first hearing, the California Democrat has largely achieved her aim.  Regardless of the legislation’s fate, her opposition means that few if any power plants are likely to be built in the monument area, a complication in California’s effort to achieve its aggressive goals for renewable energy.  

Developers of the projects have already postponed several proposals or abandoned them entirely.  The California agency charged with planning a renewable energy transmission grid has rerouted proposed power lines to avoid the monument. 

“The very existence of the monument proposal has certainly chilled development within its boundaries,” said Karen Douglas, chairwoman of the California Energy Commission.

Mrs. Feinstein heads the Senate subcommittee that oversees the budget of the Interior Department, giving her substantial clout over that agency, which manages the government’s landholdings.  Her intervention in the Mojave means it will be more difficult for California utilities to achieve a goal, set by the state, of obtaining a third of their electricity from renewable sources by 2020; projects in the monument area could have supplied a substantial portion of that power. 

An Unlikely Feud – Feinstein vs RFK Jr

Her legislation pits Sen. Feinstein, an outspoken promoter of aggressive federal action on Climate Change/Cap & Trade, against many environmentalist groups, including one of the highest profile environmental advocates in the nation – Robert F. Kennedy Jr. 

“This is arguably the best solar land in the world, and Senator Feinstein shouldn’t be allowed to take this land off the table without a proper and scientific environmental review,” said RFK Jr., the environmentalist and a partner with a venture capital firm that invested in a solar developer called BrightSource Energy. In September 2009, BrightSource canceled a large project in the monument area. 

Union officials, power industry executives, regulators and some environmentalists have also expressed concern about the impact of the monument legislation, but few would speak publicly for fear of antagonizing one of California’s most powerful politicians. 

The debate highlights a rising tension between two goals held by environmental groups: preservation of wild lands and ambitious efforts to combat global warming. Not only is the Mojave desert land some of the sunniest in the country, and thus suitable for large-scale power production, it is also some of the most scenic land in the West. 

Others have also pointed out that California's aggressive renewable-energy target, combined with tough land-protection laws, could end up sparking a renewable-energy boom in neighboring Nevada or Arizona. 

For further details on Sen. Feinstein’s legislation to prohibit development on massive tracts of California’s Mojave desert, see the following sources: 

• Summary of the legislation

http://feinstein.senate.gov/public/index.cfm?FuseAction=NewsRoom.PressReleases&ContentRecord_id=b3cb1c7d-5056-8059-7644-b14713dcc1a5 

• Pdf text of the legislation

http://feinstein.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=4150f59f-238b-41d6-9289-f92fd1da6a85 

• Library of Congress THOMAS text of the legislation

http://thomas.loc.gov/cgi-bin/query/z?c111:S.2921.IS: 

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers. For more information on the author see here.