Energy and Environment Monitorwww.eem.jacksonkelly.com

Fourth Circuit Affirms Maryland’s CWA §401 Authority

The U.S. Court of Appeals for the Fourth Circuit has upheld the State of Maryland’s denial of a water quality certification for a major industrial project required by the Clean Water Act (CWA). Two companies had petitioned Maryland’s Department of Environment for a CWA §401 water quality certification needed for a construction project at Sparrow’s Point, a heavily industrialized area adjacent to the Baltimore Harbor. The Fourth Circuit upheld the state’s denial of the water quality certification relying on the Court’s previous rulings in CWA cases arising from surface mining controversies in West Virginia.   

The two companies sought a license from the Federal Energy Regulatory Commission (FERC) as required by the Natural Gas Act to construct a liquefied natural gas (LNG) terminal at Sparrow’s Point. As part of this licensing process, the companies were required to prepare an environmental impact analysis under NEPA, and to secure a §404 permit from the U.S. Army Corps of Engineers. The §404 permit encompassed three distinct activities: dredging approximately 118 acres to provide an approach channel and turning basin at the Harbor of Baltimore; identifying a location to place the approximately 3.7 million cubic yards of dredged material that would be removed and dewatered from the dredging project; and establishing a corridor for a natural gas pipeline running 88 miles from the Baltimore Harbor to interstate pipelines in Chester County, Pennsylvania. 

Section 401 of the CWA provides at subsection (a) that “an applicant for a federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certificate from the state . . . that any such discharge will comply with applicable provisions” of the state’s water quality standards. Although Maryland identified four bases for denying certification, the Court relied upon only one basis to uphold the state’s decision. The area at Sparrow’s Point, Maryland has been heavily industrialized for decades. Consequently, the sediment is heavily contaminated and the water quality in the harbor is marginal, particularly for dissolved oxygen levels in the dredged areas.   Maryland’s Department of the Environment had determined that dredging the harbor an additional 45 feet would adversely affect dissolved oxygen levels and potentially impair benthic habitat at depths below 35 feet in the harbor. The companies attacked the Maryland agency’s decision as being arbitrary and capricious because a similar request for a certification had been granted to another company four years earlier. 

The Fourth Circuit upheld the state agency’s decision relying substantially upon its decision issued earlier this year in OVEC v. Aracoma Coal Company, 556 F.3d 177 (Feb. 2009). In that case, the Court had reaffirmed the high level of deference that is granted to agencies in making complex decisions on matters arising out of the subject matter issues in which the agencies are statutorily required to determine. The Fourth Circuit also relied upon its earlier decision in OVEC v. Bulen, 429 F.3d 493 (4th Cir. 2005) that the appellate court is required to defer to an agency’s interpretation of its own rules. 

Although the denial of the water quality certification was a blow to the LNG project and the permitting that was being undertaken by the two companies, the Maryland agency had conditioned its denial upon the submission of additional information in support of the project. The case is valuable because it reaffirms the central role of the states in determining whether projects that require federal licenses or permits, such as §404 permits issued by the Corps of Engineers, comply with state water quality standards.  

The case is AES Sparrow’s Point v. Wilson, No. 09-1539 (Dec. 22, 2009). For additional information, contact Blair Gardner at 304-340-1146 or Bob McLusky at 304-340-1381.  

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

U.S. EPA Proposes New Primary SO2 Air Quality Standards

On November 16, 2009, U.S. EPA proposed to adopt a new 1-hour primary national ambient air quality standard (NAAQS) for sulfur dioxide (SO2) at a level between 50 and 100 parts per billion (ppb), based on the 3-year average of the annual 99th percentile (or 4th highest) of 1-hour daily maximum concentrations. U.S. EPA is also proposing to revoke both the existing 24-hour primary standard of 140 ppb and annual primary SO2 standard of 30 ppb. Alternatively, U.S. EPA is seeking comment on a 1-hour NAAQS up to 150 ppb. At a level of 150 ppb, U.S. EPA would retain the existing 24-hour and revoke only the annual standard. Comments are due 60 days after U.S. EPA publishes the proposal in the Federal Register. U.S. EPA will hold a public hearing for its proposed rule on January 5, 2010 in Atlanta, Georgia, and is obligated under a consent decree to sign a final rule on the primary SO2 primary NAAQS by June 2, 2010. For the pre-publication version of the proposed rule, click here. 

Any final revised SO2 NAAQS will affect facilities that burn fossil fuels, including power plants and other industrial facilities. U.S. EPA estimates, based upon 2005 emissions data, that fossil fuel combustion at power plants and other industrial facilities accounts for 66% and 29%, respectively, of total U.S. SO2 emissions. Other sources of SO2 emissions include industrial processes such as extracting metal from ore, and the burning of high sulfur fuels by locomotives, large ships, and non-road equipment. 

If the SO2 NAAQS is revised as proposed, additional areas could be classified as nonattainment, meaning the area does not meet the standard. For a map of the counties designated nonattainment for the current SO2 standard, click here. Based upon data from 2006-2008, U.S. EPA projects that 45 counties have monitors that would exceed a NAAQS of 100 ppb, 22 additional counties for a total of 67 counties would violate a standard of 75 ppb, and 40 additional counties for a total of 147 counties would exceed a standard of 50 ppb. For a map of counties with monitors currently violating proposed range for 1-hour SO2 standard of 50-100 ppb, click here. For a map of counties with monitors projected to violate proposed range for 1-hour SO2 standard of 50-100 ppb in 2020, click here.  

If U.S. EPA signs the final revised SO2 NAAQS in June 2010, then state governors would have an opportunity to submit to U.S. EPA recommendations for the areas in their state that should be “designated” or identified as “attainment” (i.e., meeting the standard), “nonattainment” (i.e., failing to meet the standard), or “unclassifiable” (i.e., information is not available). The state governors’ recommendations would be due in June 2011, and U.S. EPA would promulgate final designations in June 2012, within two years of the anticipated effective date of the final revised standard, if any. No later than 120 days before the agency promulgates the designations, U.S. EPA must give notice to the states of any modifications to their initial designations. This notification of any modifications would be due in February 2012 if U.S. EPA adheres to its schedule and promulgates final designations in June 2012. In the event of insufficient information, the Clean Air Act provides that U.S. EPA can take an additional year or until June 2013 to designate areas.   

The final designation date is important because attainment dates or the latest date by which a nonattainment area is required to attain or meet the NAAQS is determined from the effective date of the nonattainment designation for the area. Areas designated nonattainment must achieve the NAAQS “as expeditiously as practicable, but no later than 5 years from the date such area[s were] designated nonattainment”. If U.S. EPA promulgates final SO2 designations by June 1, 2012, then nonattainment areas would be required to meet the SO2 standard no later than the summer of 2017.   

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

NPDES Permitting in the Potomac River Watershed Has Changed and Will Have Long Term Impacts to West Virginia’s Eastern Panhandle

The U.S. EPA has identified the Chesapeake Bay and many of its tributaries as "impaired waters" under the Clean Water Act for nutrients and sediments. Nutrients of concern are nitrogen and phosphorus. The main sources of the nutrients and sediments are agriculture, urban and suburban runoff, wastewater and airborne contaminants. Agriculture reportedly is the largest source of nutrients and sediments in the watershed. The USEPA reports that more than one-fourth of the phosphorus loads discharging to the Chesapeake Bay come from Pennsylvania, New York and West Virginia. Because of these contributions, these states along with the states of Delaware, Maryland, Virginia and the District of Columbia have a pollution allocation called Total Maximum Daily Load (TMDL), which is the maximum amount of a pollutant that a water body may receive and still meet its water quality standard. Due to Clean Water Act provisions and West Virginia’s participation in the Chesapeake Bay Project, West Virginia has been ratcheting down nutrient discharges within the drainage area of the Potomac River, which discharges to the Chesapeake Bay.

Many developers and municipalities in West Virginia’s Eastern Panhandle already know that several new NPDES permits for sewage treatment package plants (used frequently for new housing developments where a municipal sewage does not exist) and modifications of existing NPDES permits for proposed expansion of capacity for existing sewage treatment plants have been required by the West Virginia Department of Environmental Protection (WVDEP) to provide mitigation in the form of equal reductions of nutrients to offset proposed discharges from their facility. In other words, if your proposed facility will discharge five pounds of nitrogen into the receiving stream, you must find a documentable way to eliminate five pounds of nitrogen from an existing source. This mitigation is being required not because West Virginia streams are impaired, but because of the impairment of the Chesapeake Bay.

The West Virginia Legislature passed SB 715 which requires the WVDEP to develop and implement a watershed based nutrient trading program by June 1, 2011. The legislation included also a capital improvement program to assist those affected to install capital improvements to obtain the reductions/mitigation in nutrients in order to meet mandated reductions in nutrient discharges. The WVDEP is currently looking at options to provide funding for the capital improvements that will be necessary in order to allow for growth in the Eastern Panhandle.

There are problems on the horizon. The capital improvements program to provide funds to upgrade existing sewage treatment systems and other projects that would decrease existing nutrient discharges is an unfunded mandate at this time. Sources for funding may include additional sewer and water fees. A second problem is an impact to agriculture in the Eastern Panhandle. Nutrient trading is expected to focus primarily on reducing non-point sources of nutrients because there are few other sources available that are capable of decreasing nutrient and sediment discharges.

If you are a developer, logger, farmer or represent a municipality or other local subdivision in the Eastern Panhandle stay aware of future developments. One segment of the farm community certain to feel the effects of this initiative in the future will be West Virginia’s poultry industry.

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

here.

OSM Rejects Environmentalist Request To Take Over Enforcement

On August 10, 2009, the Appalachian Center for the Economy and the Environment ("ACEE"), petitioned the Office of Surface Mine Reclamation and Enforcement ("OSM") to take over enforcement of West Virginia’s stream buffer zone rule from the state’s Department of Environmental Protection ("DEP").  By letter dated December 8, 2009, OSMA regional director Thomas Shope rejected the request.

The Stream Buffer Zone ("SBZ") rule was first issued in 1979 and modified in 1983. The 1983 rule provided that "[n]o land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream." 48 Fed. Reg. at 30,312 (citing 30 C.F.R. § 816.57).   West Virginia’s version was codified at W.V.C.S.R. § 38-2-5.2.a.  Over the years, neither OSM nor any of the states interpreted the rule to prohibit the placement of excess spoil in intermittent or perennial streams.  Indeed, in reversing a lower court ruling that interpreted the SMB rule as prohibiting valley fills, the Fourth Circuit concluded that SMCRA does not prohibit the discharge of surface coal mining excess spoil in waters of the United Statespermitting authority over the discharge of "fill material" into "waters of the United States."  Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 442 (4^th Cir. 2002).  On December 12, 2008, OSM approved changes to the SBZ rule clarifying that valley fills are exempt from the rule when alternatives are not reasonably possible.  73 Fed. Reg. 75814 (Dec. 12, 2008).    

In rejecting ACEE’s request, OSM concluded that West Virginia applied its SBZ rule in a manner consistent with federal law, allowing placement of excess spoil in intermittent and perennial streams.  OSM also pointed out that West Virginia has procedures in place that provide for the reduction, minimization, and, in some cases, elimination of fill in order to reduce environmental impacts.  OSM’s rejection of this request does not, however, provide any finality as to the application of the SBZ.  In its letter, OSM pointed out that the Obama administration is in the process of rewriting the buffer zone rule and encouraged ACEE to submit its concerns as part of the public comment process on the revisions to the rule.  The current leadership at OSM has already made its feelings regarding the current SBZ known.  The December 2008 rule change is currently being challenged in the District Court of Columbia.  See National Parks Conservation Assocation v. Salazar, Case No. 1:09-cv-00115HHK.  During that litigation, the Government moved for voluntary remand of the case for vacatur of the rule.  Although the motion was justified on the basis of a procedural flaw, Ken Salazar, Secretary of the Department of the Interior, has issued public statements that the SBZ does not adequately protect water quality and stream habitats.  See www.doi.gov/news/09_News_Releases/042709.html.  Thus, while it is certainly good news that the federal government will not be usurping the state’s enforcement of its surface mining laws just yet, the matter is not yet resolved.  

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

EPA Delays Final Decision on E15 Waiver

EPA is working to implement its long-term renewable fuels mandate of 36 million gallons by 2022. With the exception of a limited number of retail locations which market fuel containing up to 85% ethanol for use in flex fuel vehicles, the vast majority of fuels have been limited to a 10% blend of ethanol pursuant to waiver which became effective in 1978. The use of E10 is expected to peak in 2011 or 2012 hitting what is known as "the blend wall". At that point, the use of renewable fuels will be well short of EPA's goal. Against that backdrop, on March 6, 2009, Growth Energy and 54 ethanol manufacturers petitioned EPA under Section 211(f) of the Clean Air Act to allow the blending of up to 15% ethanol in gasoline (E15). EPA solicited comments from all stakeholders concerning this petition.  

 

In correspondence dated November 30, 2009, Gina McCarthy, Assistant EPA Administrator advised Growth Energy that EPA did not have sufficient information to grant the waiver petition. EPA indicated that although the studies had not been completed, EPA's assessment to date indicated that the fuel, engine and emission control systems on newer vehicles would likely be compatible with higher blends of ethanol such as E15. However, EPA indicated that it continues to evaluate the question of component durability when higher blends are used over many thousands of miles. EPA referenced an on-going study conducted by the Department of Energy which will provide data on this issue. According to EPA, DOE's program involves complete testing of 19 vehicles to examine the long-term emissions impact of higher ethanol blends on newer vehicles and is expected to be completed by August, 2010. To date, DOE's tests have been completed for only two vehicles, but an additional 12 vehicles are expected to be tested by the end of May. Should these tests results be positive, EPA indicates that it could be in a position to approve E15 for 2001 and newer vehicles by mid 2010.  

 

Anticipating that E15 would be sold in addition to E10, EPA indicated that it was taking steps to address fuel pump labeling issues to make sure consumers utilized the proper gasoline for their vehicles and equipment (such as lawn mowers, boats, etc.) should higher ethanol blends be approved.  

 

In addition to the future Department of Energy vehicle tests, there are several other factors which may delay or limit the blending of E15. First, refiners may have to make a different blend stock to accommodate E15. Second, it is not clear that the retail end of the industry is prepared to handle E15. According to OPIS (Oil Price Information Service), there are 700,000 gasoline dispensers at 160,000 gasoline outlets across the United States and none are certified for fuel above E10. Although many outlets sell E85, OPIS indicates that these locations may violate OSHA requirements that dispensers be certified by Underwriters Laboratory (UL). There is also some concern regarding the impact of higher levels of ethanol on underground storage tanks over time. Finally, since it appears the E15 may not be suitable for pre-2001 cars and smaller engines, it may be difficult for retailers to service the entire market without the capacity to blend ethanol at the pump. This may require costly changes in retail equipment and infrastructure.

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

2008 TRI National Analysis

On December 8, 2009 US EPA released its annual analysis of the Toxic Release Inventory of 2008 information.  The TRI database contains information on chemical releases into the air, land and water, as well as waste management and pollution prevention activities.  The analysis of 2008 data shows that 3.86 billion pounds of toxic chemicals were released into the environment, a 6 percent decrease from 2007. 

 

More than 21,000 facilities reported information on 650 chemicals in 2008.  There was a 5% decrease in the number of facilities reporting in 2008.  This could be due to the economic downturn.  Some facilities that reported in 2007 did not report in 2008.  EPA is planning to investigate. 

 

Air releases were decreased 14% from 2007 and decreased 30% from 2001.  Surface water releases increased 3% from 2007 and 1% from 2001.  It is believed that the surface water increase is due to the Tennessee Valley Authority coal ash spill.  Land releases were virtually unchanged with a 0.1% increase from 2007.  Land releases decreased 40% from 2001 levels.

 

The report shows decreases in the releases of persistent, bioaccumulative, and toxic (PBT) chemicals such as lead, dioxin, and mercury.  Mercury was down 11% from 2007 report.  Dioxin was down 77% from the 2007 report.  Lead was down 2% from the 2007 report.  PCBs increased 121% from 2007.  PCBs are longer manufactured in the United States.  The increase is due to the removal and treatment of legacy PCBs.  

 

3.86 billion pounds were disposed or otherwise released in 2008.  87% was released on-site through air releases (30%), surface water (6%), on-site underground injection wells (5%) and land disposal (46%).   The remaining 13% were disposed or otherwise released off-site.

 

In 2008, the production-related waste managed was 22.57 billion pounds.  Of the production-related waste managed, 38% was recycled, 12% was used for energy recovery, 33% was treated, and 17% was disposed of or otherwise released.  The waste management hierarchy establishes that once the waste is generated the preferred management methods are recycling, followed by burned for energy recovery, treatment and, as a last resort, disposal or otherwise released.

 

The quantity disposed of or otherwise released from the production-related waste management is 3.94 billion pounds while the TRI disposal or other release value is 3.86 billion pounds.  Why are these values different?  When looking at total production-related waste, the quantity disposed of or otherwise released includes all reported disposal or other releases except those due to remedial, catastrophic or one-time releases.  On the other hand, total disposal or other releases, discussed above, excludes amounts that were sent to other TRI facilities and reported as disposed or otherwise released (to avoid double-counting).

 

There were 179 carcinogens on the TRI list for 2008; 35 of the 179 carcinogens were not reported for 2008.  Total disposal or other releases of carcinogens reported was 776 million pounds in 2008.  92% were disposed of or otherwise released on-site and 8% were disposed of or otherwise released off-site.  From 2007 to 2008, total disposal or other releases of carcinogens decreased by 60 million pounds or 7%.  Air releases decreased by 16 million pounds or 18%.  From 2001 to 2008, total disposal or other releases of carcinogens decreased by 33% (388 million pounds), including a decrease of 44% (59 million pounds) in air releases. 

 

In addition to the traditional analysis of the TRI database, EPA conducted a TRI Chemical Hazard Analysis.  EPA used the Risk Screening Environmental Indicators (RSEI) “toxicity-weighted-pounds” methodology to conduct additional analysis.  The idea is to provide additional insights that go beyond simple pounds analysis and reflect some basic measure of chemical toxicity.  More information on RSEI is available at www.epa.gov/oppt/rsei

 

For this analysis, EPA included all TRI chemicals that have RSEI hazard weights and addresses total disposal or other releases to all media.  RSEI toxicity weights are available for both cancer and non-cancer health effects.  Two analyses are done, one using the cancer toxicity weights and one using the non-cancer toxicity weights. 

 

For 2008, 493 TRI chemicals were reported on by TRI facilities.

· 33% of the chemicals have RSEI cancer toxicity weights

· 68% of the chemicals have RSEI non-cancer toxicity weights

· 24% of the chemicals have both cancer and non-cancer toxicity weights

· 23% of the chemicals reported on for 2008 do not have RSEI toxicity weights, including known or suspected carcinogens such as dioxins, creosote and polychlorinated alkanes.

 

Comparing the nationally aggregated total toxicity weighted pounds of disposal or other releases using the RSEI cancer toxicity weights to years past shows that for 2007 to 2008 there was an increase of 10% using RSEI cancer toxicity weighted pounds.  For 2001 to 2008 there was a decrease of 53% using RSEI cancer toxicity weighted pounds. 

 

For non-cancer RSEI toxicity weights, there was a decrease of 7% from 2007 to 2008.  For 2001 to 2008, there was a decrease of 55% using RSEI non-cancer toxicity weighted pounds. 

More information on the 2008 TRI analysis is available at http://www.epa.gov/tri

 

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

Recent Decision May Cause More Delay For Pending Surface Coal Mining Projects

A recent decision by the U.S. District Court for the Southern District of West Virginia regarding the issuance of two Clean Water Act (CWA) Section 404 permits by the U.S. Army Corps of Engineers (Corps) for surface coal mining projects has the potential to spell trouble in the form of more delays for many in the coal industry. In OVEC v. U.S. Army Corps of Engineers, No. 3:08-0979 (S.D.W.Va. Nov. 24, 2009), the Court found the Corps violated the CWA and the National Environmental Policy Act (NEPA) by failing to provide the public with sufficient information regarding proposed mitigation plans and failing to adequately involve the public in its environmental analysis. Both permits were remanded back to the Corps to address the procedural flaw. The Corps must re-issue an amended notice for each permit, receive and respond to public comments, and then reconsider each permit with any new comments in mind. In recognition that the mining companies were not at fault, the Court stayed its decision for 60 days, providing the companies with some time to appeal or obtain other relief.

To understand this opinion it is important to understand the permitting process at issue in this case. The Corps authorizes discharges associated with mining into waters or the United States with CWA Section 404 permits. Before authorizing and issuing an individual 404 permit (a permit is either a nationwide or general or an individual permit), the Corps regulations demand certain procedures, including public notice and comment (these procedures are not required for general permits), when issuing individual permits under both the CWA and NEPA. In the case of the two individual permits issued in West Virginia, plaintiffs argued the Corps provided insufficient information regarding the proposed mitigation plans for the public to provide meaningful comment.

Agreeing with the plaintiffs, the Court found the Corps had not met the minimum criteria established in its regulations, that "the notice must … include sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment." 33 C.F.R. 325.3(a). While the Court recognized that 2009 revisions to the Corps’ regulations would require a more detailed explanation of how impacts from the project would be mitigated, the Court was not persuaded that the revisions represented evidence that no statement on mitigation was necessary when the permits were issued in 2007. Id., slip op. at 8 fn 4. Effectively, the Court found it unreasonable for the Corps to issue the public notice when the applications did not contain sufficient information for the public to provide meaningful comment. Id. at 29. Further, the Court found the absence of such information shielded data and detail from the public review and prevented the public from commenting intelligently on the adverse impacts associated with each application. Id. at 41. With respect to NEPA, the Court found that it is site-specific mitigation that allows the Corps to make a determination of no significant degradation and/or a Finding of No Significant Impact (FONSI); therefore, a public notice with no information on mitigation is deficient under NEPA. Id. at 43.

The impact of this decision on future permitting is not likely to be substantial because much of the deficiencies with the Corps’ public notice procedures identified in this decision have been addressed in a 2009 rule amending Corps regulations at 33 C.F.R. Part 325. Further, it is within Corps discretion to issue supplementary notices where the Corps believes relevant information has been obtained after the comment deadline that warrants public review and comment. However, this decision could have a substantial impact on the many permits that pre-date the 2009 regulations and whether the Corps will decide that these permits must undergo additional public review. If the Corps were to adopt this approach, the result would be additional delay in the issuance of these permits, most of which have been pending for more than a year already.

Currently, the Corps is considering what the decision means with respect to the universe of pending permits. For this reason, the Corps is also considering whether to appeal the decision to the U.S. Court of Appeals for the Fourth Circuit. As the decisions the Corps makes regarding OVEC v. U.S. Army Corps of Engineers, No. 3:08-0979 (S.D.W.Va. Nov. 24, 2009) could further delay many permits which pre-date the 2009 regulations, the Corps actions will be watched over by many.

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

Final Rule Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category

On Tuesday, December 1, 2009, the U.S. EPA published final regulations establishing Clean Water Act technology based effluent limitation guidelines and new source performance standards for the construction and development (“C&D”) point source categories. U.S. EPA expects the following industries to be potentially regulated by this action: Building Development and General Contracting, North American Industry Classification System (“NAICS”) code 236, involved with the construction of buildings, and Civil Engineering Construction, NAICS code 237, including land subdivision, utility systems construction, and highway, street, and bridge construction. As written, despite receiving comments from the National Mining Association requesting clarification, the rule fails to clarify whether or not stormwater discharges from exploration and construction related activities associated with mining are directly affected by this rulemaking.  

Through this rule, U.S. EPA promulgates effluent limitation guidelines and new source performance standards for the construction and development point source category. This establishes a series of non-numeric effluent limitations, in addition to a numeric effluent limitation for the pollutant turbidity. This rule shall become effective on February 1, 2010. All construction sites permitted after February 1, 2010 will have to meet the non-numeric effluent limitations. These non-numeric effluent limitations require the permittee to: 

·   Design, install and maintain effective erosion and sediment controls to control stormwater, minimize soil exposure, minimize erosion, minimize sediment discharges, maintain natural buffers around surface water, minimize soil compaction, and preserve topsoil

·   Initiate soil stabilization measures immediately whenever any clearing, grading, excavating have permanently ceased on any portion of the site, or temporarily ceased and will not resume for a period exceeding 14 calendar days

·   Minimize the discharge of pollutants from dewatering trenches and excavations

·    Design, install, and maintain effective pollution prevention measures to minimize the discharge of pollutants from wash waters, on-site materials, and spills and chemical leaks

·    Prohibit discharges from wastewater from washout of concrete (unless appropriately managed), and the washout and cleanout of stucco, paint, form release oils, curing compounds and other construction material; fuels, oils, or other vehicular pollutants; and soaps or solvents

·   Utilize outlet structures that withdraw water from the surface when discharging from basins and impoundments, unless infeasible 

By contrast only those construction sites disturbing ten or more acres of land will be required to comply with the numeric effluent limitation for turbidity. As U.S. EPA has done with the Greenhouse Gas Tailoring Rule, U.S. EPA is using tailoring approach to “phase in” the numeric effluent limitation over four years to provide permitting authorities time to develop monitoring requirements and provide the regulated community time to determine how they will come into compliance with the numeric effluent limitation. Beginning 18 months after the effective date of February 1, 2010, construction sites disturbing 20 or more acres at one time shall be required to monitor discharges from the site and comply with the numeric effluent limitation. Beginning February 1, 2014, smaller construction sites disturbing ten or more acres at one time will be required to monitor discharges from the site and comply with the numeric effluent limitation, allowing four years to adjust to the new rule. 

It is important to understand how this rule will apply to individual state National Pollutant Discharge Elimination System (“NPDES”) permits. This rule will not retroactively apply to existing individual or general stormwater NPDES permits. Thus existing NPDES permits are not affected by this rulemaking. After the effective date of this rule, February 1, 2010, whenever the state with a delegated NPDES program or the U.S. EPA issues a new individual stormwater NPDES permit or reissues the general stormwater NPDES permit it will incorporate the requirements of the final rule, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category. Those operating under West Virginia’s General WV/NPDES Stormwater Construction permit will not be affected by this rule until the general permit expires December 4, 2012, when West Virginia Department of Environmental Protection will reissue the general permit incorporating the new rule. 

U.S. EPA expects the total pollutant reductions from the final rule Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category to be approximately 4 billion lb/yr. U.S. EPA expects the final rule to provide in an “extensive range of benefits,” which include, increased property values near water bodies, reduced flood damage, reduced cost of ditch maintenance, and improved fishing and swimming uses, for an annual monetized benefit of $369 million per year, while recognizing that some of the benefits of the rule could not be fully monetized. At the same time, U.S. EPA anticipates the annual cost of this rule to be $953 million per year.  

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

USEPA Makes Final Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act

On December 7, 2009, United States Environmental Protection Agency (“USEPA”) Administrator Lisa Jackson finalized two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act. The first finding, termed the “Endangerment Finding,” finds that the current and projected concentrations of six greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations. The six named greenhouse gases are carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆). The second finding, termed the “Cause or Contribute Finding” finds that the combined emissions of these six greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare. These findings do not themselves impose any requirements on industry or other entities.

 

These findings will be published in the Federal Register under Docket ID No. EPA-HQ-OAR-2009-0171.  A pre-publication version of these findings can be found at www.epa.gov/climatechange/endangerment/downloads/FinalFindings.pdf.

 

Technical analyses developed by the USEPA in support of the Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act may be found at www.epa.gov/climatechange/endangerment/downloads/Endangerment%20TSD.pdf.

 

On April 17, 2009, the Administrator signed proposed endangerment and cause or contribute findings for greenhouse gases under Section 202(a) of the Clean Air Act.  USEPA held a 60-day public comment period, which ended June 23, 2009, and received over 380,000 public comments.  These included both written comments as well as testimony at two public hearings in Arlington, Virginia and Seattle, Washington. USEPA’s response to the public comments it received can be found at www.epa.gov/climatechange/endangerment.html.

 

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. 

Final Revisions to SPCC Rules

After almost a year of reconsideration on November 13, 2009, EPA finalized the SPCC regulations which were originally promulgated December 5, 2008, during the Bush Administration and were to be come effective on February 3, 2009.   However, with the change in administrations, these rules were subjected to the new administration’s regulatory review process, and their effective date was delayed while the Obama EPA considered objections that had been made to some of the new provisions of the regulations which principally affected oil production facilities.

 

The effective date for the November 18, 2009 rule is January 14, 2010, and the date by which these new SPCC requirements must be implemented is November 10, 2010. Relative to the SPCC requirements for onshore oil storage facilities most changes in the November 2009 final rules were to make wording and regulatory references less complicated. Substantively, the changes effected by the November 13, 2009 rules are: 

• Hot mixed asphalt (HMA) and HMA containers, pesticide application equipment and related mix containers, and heating oil containers at single-family residences, including those located at farms are exempted from the regulations;
• The definition of "facility" is amended  to clarify the existing flexibility associated with describing a facility's boundaries;
• There are amended facility diagram requirements to provide additional flexibility;
• A new definition of "loading/unloading rack" is provided  to clarify the oil transfer equipment subject to the provisions for facility tank car and tank truck loading/unloading racks, as well as amended provisions for this equipment;
• Amended general secondary containment requirements to provide more clarity;
• Exemption of non-transportation-related tank trucks from the sized secondary containment requirements;
• Amended security requirements;
• Amended integrity testing requirements to allow greater flexibility in the use of industry standards;
• Amended integrity testing requirements for containers that store animal fats and vegetable oils (AFVOs) and meet certain criteria;
• Amended definition of "production facility";
• Clarification that drilling and workover activities are not subject to the provisions at §112.9;
• Exemption for certain intra-facility gathering lines at oil production facilities from the SPCC requirements;
• More prescriptive requirements for a flowline/intra-facility gathering line maintenance program for all production facilities and an alternative compliance option for flowlines and intra-facility gathering lines for contingency planning in lieu of all secondary containment;
• Alternative compliance option for flow-through process vessels at oil production facilities to comply with the general secondary containment requirements and additional oil spill prevention measures in lieu of the sized secondary containment requirements;
• Definition of "produced water container" and alternative compliance measures for these containers which require general secondary containment, a process or procedure certified by a professional engineer (PE) designed to remove free-phase oil on the surface of the produced water in these containers and compliance with additional oil spill prevention measures in lieu of sized secondary containment requirements;
• Clarification of the definition of "permanently closed" as it applies to an oil production facility; and

A few provisions finalized in the December 2008 rule which are beneficial to the regulated community to whom they apply , become effective on January 14, 2010, with technical corrections:

• Exemption for underground oil storage tanks that supply emergency diesel generators at nuclear power generation facilities.
• Designation of a subset of "Tier I" qualified facilities with a set of streamlined SPCC rule requirements for which the owner or operator has the option to complete a self-certified SPCC Plan template in lieu of a full SPCC Plan.
• Compliance date for new oil production facilities changes to November 10, 2010, to align with the current compliance date.

The following provisions which were included in the December 2008 final rule were REMOVED  from the November 13, 2009 final rule.removed and are no longer part of the regulatory program. 

• Exclusions for oil production facilities and farms from loading/unloading rack requirements were removed. .
• Alternative qualified facility eligibility criteria for an oil production facility were removed.
• Exemption for certain produced water containers were removed.

Basic Applicability of SPCC Rules

 

The following sets forth the types of sources subject to the SPCC rule; the coverage has not changed substantially from the 2002 version of the SPCC rule:

 

The SPCC rule applies to owners or operators of non-transportation-related facilities that:

• Drill, produce, store, process, refine, transfer, distribute, use, or consume oil or oil products; and
• Could reasonably be expected to discharge oil to U.S. navigable waters or adjoining shorelines.

Facilities are subject to the rule if they meet at least one of the following capacity thresholds:

• Aboveground oil storage capacity greater than 1,320 U.S. gallons, or completely buried oil storage capacity greater than 42,000 U.S. gallons.

The following are exempt from the rule:

• Containers with a storage capacity less than 55 U.S. gallons of oil;
• Permanently closed containers;
• Motive power containers;
• Wastewater treatment facilities;
• Hot-mix asphalt and hot-mix asphalt containers;
• Residential heating oil containers at single family residences;
• Pesticide application equipment and related mix containers;
• Completely buried storage tanks subject to all the technical requirements of the underground storage tank regulations;
• Intra-facility gathering lines subject to U.S. Department of Transportation’s pipeline regulations; and

Underground oil storage tanks at nuclear power generation facilities.

 

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