Energy and Environment Monitor

EPA Announces Action on Chemicals Used in Dyes, Flame Retardants, and Industrial Detergents

On August 18, 2010, EPA announced plans to revise the Toxics Substances Control Act (TSCA) to limit exposure to chemicals used in dyes, flame retardants, and industrial detergents. The plan will address the potential health risks of benzidine dyes, hexabromocyclododecane (HBCD) and nonylphenol (NP)/nonylphenol ethoxylates (NPEs). EPA identified a range of actions it is considering.

 

EPA stated that “Benzidine dyes are used in the production of consumer textiles, paints, printing inks, paper, and pharmaceuticals and may pose health problems, including cancer. HBCD is used as a flame retardant in expanded polystyrene foam in the building and construction industry, as well as in some consumer products. HBCD has been shown to be persistent and bioaccumulative in the environment and may pose potential reproductive, developmental, and neurological effects in people. NP/NPEs are used in many industrial applications and consumer products such as detergents, cleaners, agricultural and indoor pesticides, as well as food packaging.” The agency announcement added that “[t]hese chemicals have been detected in people.”

 

The range of actions announced include adding HBCD and NP/NPE to EPA’s new Chemicals of Concern list, issuing significant new use rules for all three chemicals, and, for HBCD and benzidine dyes, imposing new reporting requirements on EPA’s Toxic Release Inventory and potentially banning or limiting the manufacture or use of the chemicals.

 

TSCA, passed in 1976, has always authorized the Chemicals of Concern list but, until this announcement, EPA had not implemented it. The list will contain the names of chemicals that “may present an unreasonable risk of injury to health and the environment.” Additional information regarding the proposed TSCA revisions may be found at: http://www.epa.gov/oppt/existingchemicals.

 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

US EPA 2009 TRI Preliminary Dataset

On July 28, 2010 US EPA published the 2009 TRI dataset. EPA is making the Toxic Release Inventory data available within weeks of the reporting deadline through its web site and in the popular tools, TRI Explorer and Envirofacts. The database contains environmental release and transfer data on nearly 650 chemicals and chemical categories reported to EPA by more than 21,000 industrial and other facilities. 

 

The preliminary dataset includes more than 80 percent of the data expected to be reported for 2009. Paper submissions, late submissions and electronic submission with problems are not included in this data release. 

 

The preliminary dataset allows communities to find out about releases and transfers of chemicals at the local level. Examples of industries that report to TRI include manufacturing, metal mining, electric utilities, and commercial hazardous waste treatment facilities among others. 

 

Currently only facility reports are available for the 2009 dataset in TRI Explorer. TRI Explorer allows the user to access data by state and county. Once the county data is displayed, individual facilities are identified.   If a facility report has not been added for 2009 yet, the 2008 data is displayed.   2008 data is also displayed for chemicals not reported by a facility in 2009. All 2008 data is identified by a smaller font and gray highlight.

 

TRI Explorer provides the following disclaimers: Summing of results may produce incorrect totals. The report should not be used without understanding the limitations of the dataset.   The absence of current year data is not necessarily an indication the facility has not submitted a current report or is out of compliance. 

 

US EPA fails to note that many facilities may not have reported specific chemicals or a site report due the downturn in the economy in 2009. 

 

The dataset will be updated in August and again in September. 

 

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.

US EPA Proposes One Year Compliance Date Extension on SPCC Rule for Certain Facilities

On July 28, 2010 US EPA proposed a one year compliance date extension on SPCC for certain facilities [published August 3, 2010 75 FR 45572-45579]. Not all facilities will qualify for the one year extension and will have to comply by the current date of November 10, 2010. 

 

The public has the opportunity to comment on this proposed rule during a 15-day period which ends on August 18, 2010.

 

Drilling, production or workover facilities that are offshore or that have an offshore component, or onshore facilities required to have and submit facility response plans (FRPs), due to the threats facilities could pose of significant oil spills to navigable waters or adjoining shorelines. 

 

Facility Response Plans are required when

·     total storage capacity greater than 42,000 gallons and over-water transfers of oil to/from vessels

·     or the total storage capacity greater than 1 million gallons and at least one of the following:

o    Lacks adequate secondary containment for any aboveground storage area.

o    Oil discharge could shut down a public drinking-water intake.

o    Oil discharge could cause injury to fish and wildlife and sensitive environments, including cooling water intakes and irrigation intakes.

o    Experienced reportable oil discharge of 10,000 gallons or more in the last five years.

 

US EPA is providing the compliance extension to provide owners or operators of facilities that pose a lower threat of having significant oil spills to navigable waters or adjoining shorelines the opportunity to fully understand the regulatory amendments offered by revisions to the SPCC rule promulgated in 2008 and 2009 and to allow these facilities additional time to make any changes necessary to comply with the revised SPCC requirements.

 

US EPA clarified when the SPCC plan must be prepared and implemented based on the date the operations started. 

 

If the facility qualifies for the compliance extension

 

·     Operations started on or before August 16, 2002 – Maintain existing SPCC Plan and amend and implement revised plan no later than November 10, 2011

·     After August 16, 2002 through November 10, 2011 – Prepare and implement an SPCC Plan no later than November 10, 2011

·     After November 10, 2011 (excluding production facilities) – Prepare and implement an SPCC Plan before beginning operations

·     After November 10, 2011 (production facilities) – Prepare and implement an SPCC Plan within six months after beginning operations.

 

If the facility does not qualify for the compliance extension

 

·     Operations started on or before August 16, 2002 – Maintain existing SPCC Plan and amend and implement revised plan no later than November 10, 2010.

·     After August 16, 2002 through November 10, 2010 – Prepare and implement an SPCC Plan no later than November 10, 2010.

·     After November 10, 2010 (excluding production facilities) – Prepare and implement an SPCC Plan before beginning operations.

·     After November 10, 2010 (production facilities) – Prepare and implement an SPCC Plan within six months after beginning operations.

 

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.

Public Input Sought on Proposals to Strengthen Oil and Gas Well Protections in PA

On July 10, 2010 the Pennsylvania Environmental Quality Board (EQB) published its proposed rulemaking measures to update existing state requirements for drilling, casing, cementing, testing, monitoring and plugging of oil and gas wells. The proposed rulemaking is now open to public comment on changes that will substantially improve the safety of oil and gas wells across the state and protect the state’s water resources from contamination. Once the public comment period is concluded, the proposal will go before the Pennsylvania Independent Regulatory Review Commission for review and final publication.

 

The proposed rules would amend state regulations for casing and cementing wells. The Department of Environmental Protection proposed the rule changes to strengthen construction standards for oil and gas wells. A properly cased and cemented well is critical to keeping gas, oil and other fluids contained inside the well bore and away from fresh groundwater.

According to the EQB, a large portion of the updates contained in the proposal are already employed as part of best management practices among operators. The more rigorous standards are intended to prevent gas from migrating from a well, where it could contaminate a water supply or possibly enter a home and reach combustible levels. Among the new standards would be requirements for pressure-testing those casings used in Marcellus Shale wells, for using oilfield-grade cement, and for using blowout preventers. 

 

The new regulations will also require well operators to inspect all existing wells quarterly to ensure each is structurally sound, and report the results of these inspections to DEP. The amendments would also clearly define a drilling company’s responsibility for responding to gas migration issues.

 

The public comment period will remain open through Monday, Aug. 9.

 

Members of the public may mail comments, suggestions or objections to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477 or to Rachel Carson State Office Building, 16th Floor, 400 Market St., Harrisburg, PA 17101-2301. Comments submitted by facsimile will not be accepted.

 

Comments may also be e-mailed before the deadline to RegComments@state.pa.us. A subject heading of the proposed rulemaking and a return name and address for any response to comments provided must be included in each e-mail.

 

For more information, visit www.depweb.state.pa.us, keyword: Public Participation.

 

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

2011 Renewable Fuel Standards Proposed by EPA

July 12, 2010 EPA proposed the 2011 percentage standards for the four fuels categories under the agency’s Renewable Fuel Standard program, known as RFS2 (published July 20, 2010 [75 FR 42237-42268]. 

 

The Energy Independence and Security Act of 2007 (EISA) established the annual renewable fuel volume targets, reaching an overall level of 36 billion gallons in 2022. To achieve these volumes, EPA is required to set renewable fuel standards each November for the following year based on gasoline and diesel projections from the Energy Information Administration (EIA). EPA is also required to set the cellulosic biofuel standard each year based on the volume projected to be available during the following year, using EIA projections and assessments of production capability from industry. If the projected available volume of cellulosic biofuel is less than the required volume specified in the statute, EPA must lower the required volume used to set the annual cellulosic biofuel percentage standard to the projected available volume. EPA must also determine whether the advanced biofuel and/or total renewable fuel volumes should be reduced by the same or a lesser amount.

 

This proposed rule provides the projected production of cellulosic biofuel for 2011, and proposed percentage standards for compliance year 2011.The annual standards for cellulosic, biomass-based diesel, advanced biofuel, and total renewable fuels that apply to all gasoline and diesel produced or imported in year 2011and calculates a percentage-based standard for the following year. Based on the standard, each refiner, importer and non-oxygenate blender of gasoline determines the minimum volume of renewable fuel that it must ensure is used in its transportation fuel.

 

To calculate the percentage standard for cellulosic biofuel for 2011, EPA has used a potential volume range of 6.5 - 25.5 million ethanol-equivalent gallons (representing 5 - 17.1 million physical gallons). For the final rule, EPA intends to pick a single value from within this range to represent the projected available volume on which the 2011 percentage standard for cellulosic biofuel will be based.  EPA also proposes that the applicable volumes for biomass-based diesel, advanced biofuel, and total renewable fuel for 2011 will be those specified in the statute.

 

The proposed 2011 overall volumes and standards are:

· Biomass-based diesel (0.80 billion gallons; 0.68 percent)

· Advanced biofuels (1.35 billion gallons; 0.77 percent)

· Cellulosic biofuels (5 – 17.1 million gallons; 0.004 – 0.015 percent)

· Total renewable fuels (13.95 billion gallons; 7.95 percent)

Four separate standards are required under the RFS2 program, corresponding to the four separate volume requirements shown in Table 2. The percentage standards represent the ratio of renewable fuel volume to non-renewable gasoline and diesel volume. The proposed standards for 2011 are shown below:

 

Proposed Percentage Standards for 2011:  

 

Cellulosic biofuel   0.004-0.015% 

Biomass-based diesel    0.68% 

Advanced biofuel  0.77% 

Renewable fuel     7.95% 

Based on analysis of market availability, EPA is proposing a 2011 cellulosic volume that is lower than the EISA target. There are two proposed changes to the RFS2 regulations. The first would create a temporary and limited means for certain renewable fuel producers to generate delayed Renewable Identification Numbers (RINs) after they have produced and sold renewable fuel. This proposal would apply only to those producers who use canola oil, grain sorghum, pulpwood, or palm oil to produce renewable fuel. The second proposal would establish a petition process that foreign countries could use to establish an aggregate approach to compliance with the renewable biomass provision akin to that applicable to the U.S.

 

July 1, 2010, was the deadline that major refiners, blenders, and importers had to meet for reporting, registration, and other key compliance requirements under EPA’s expanded renewable fuels standard program.

 

Comments on the proposed rule are due 30 days after publication in the Federal Register; as of this writing the rule has not yet been published in the Federal Register.

 

EPA is also proposing changes to the RFS2 regulations that would potentially apply to renewable fuel producers who use canola oil, grain sorghum, pulpwood, or palm oil as a feedstock. This program rule would allow the fuel produced by those feedstocks dating back to July 1, 2010 be used for compliance should EPA determine in a future rulemaking that such fuels meet certain greenhouse gas reduction thresholds.

 

The second change would set criteria for foreign feedstocks to be treated like domestic feedstocks in terms of the documentation needed to prove that they can be used to make qualifying renewable fuel under the RFS2 program.

 

EPA is seeking public comment on the renewable fuel standards and the proposed changes to the RFS2 regulations, which are due 30 days following publication of the proposed rule in the Federal Register.

 

July 1, 2010, was the deadline that major refiners, blenders, and importers had to meet for reporting, registration, and other key compliance requirements under EPA’s expanded renewable fuels standard program.

 

EPA is seeking public comment on the renewable fuel standards and the proposed changes to the RFS2 regulations, which are due August 20, 2010  Link to rule is http://edocket.access.gpo.gov/2010/2010-17281.htm

 

More information on the standards and regulations: http://www.epa.gov/otaq/fuels/renewablefuels/regulations.htm

 

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

USEPA Endocrine Disruptor Screening Program (EDSP)

In case you may not have noticed, on October 21, 2009 the USEPA initiated the Endocrine Disruptor Screening Program (EDSP), in particular, the USEPA implemented the Tier 1 screening portion of the EDSP under section 408(p)(5) of the Federal Food, Drug, and Cosmetic Act (FFDCA). On October 21, 2009, the USEPA identified 67 chemical compounds that are subject to a two-tier testing approach and issued Tier 1 screening test orders to manufacturers, users, and importers or testers of pesticide/agricultural chemicals. 

 

Under section 408(p)(1) of the FFCDA, the USEPA is required “to develop a screening program, using appropriate validated test systems and other scientifically relevant information to determine whether certain substances may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen, or such other effects as EPA may designate.” Section 408(p)(3) specifically requires that the USEPA “shall provide for the testing of all pesticide chemicals.” As summarized in the Federal Register (Volume 74, No. 202, October 21, 2009, pages 54422 through 54428), the EDSP applies to the following potentially affected entities:

 

·     Chemical manufacturers, importers and processors (NAICS code 325).

·     Pesticide, fertilizer, and other agricultural chemical manufacturing (NAICS code 3253).

·     Scientific research and development services (NAICS code 5417), e.g., individuals who conduct testing of chemical substances for endocrine effects.

 

The first group of 67 chemicals to be screened consists of chemicals that section 408(p) of the FFDCA requires to be screened, i.e., “pesticide active ingredients and chemicals used as pesticide inert ingredients.” Each of the 67 chemicals and the order issuance dates are provided in the October 21, 2009 Federal Register Notice. Each Tier 1 test order recipient must respond to the USEPA within two years of issuance, and recipients have the option to cite or submit existing data in lieu of developing new bioassay test data. Existing data can include data that have been developed using USEPA approved bioassays (as cited in the Tier 1 test order) or use of other scientifically relevant information (OSRI). USEPA has provided guidance on the use of OSRI in a paper entitled “EPA’s Approach for Considering Other Scientifically Relevant Information (OSRI) under the EDSP” (see docket number EPA-HQ-OPPT-2007-1080-0032 at www.regulations.gov). It should also be noted that USEPA provides a procedure by which members of the public may also submit “scientifically relevant information related to one of the chemical-specific orders” to the USEPA in the October 21, 2009 Federal Register Notice. 

 

Finally, it should be noted that Tier 1 test orders may be issued for approximately 100 additional chemicals later this year. In addition to this concern, members of the regulated community have expressed concerns regarding what some of the options for responding to the USEPA actually mean, whether the Tier 1 screening bioassays are scientifically defensible, and what are the implications (e.g., public perception) of having certain chemicals identified as Tier 1 screening test substances, even if a chemical is subsequently determined not to be an endocrine disruptor.

 

To obtain additional information regarding the EDSP, the USEPA has established a docket under docket ID number EPA-HQ-QPP-2009-0634, which can be accessed through www.regulations.gov. The October 21, 2009 Federal Register Notice can be accessed electronically through the USEPA Internet under the “Federal Register” listings at www.epa.gov/fedrgstr. 

 

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

U.S. EPA Proposes Definition of Non-Hazardous Solid Waste for Combustion Units

U.S. EPA is proposing criteria to be used to determine if non-hazardous secondary materials are solid wastes when burned as fuels or used as ingredients in a combustion unit for purposes of the Clean Air Act (CAA). In particular, U.S. EPA is proposing four categories for when such materials are not solid wastes: (1) non-hazardous secondary materials used as fuels that remain within and are combusted within the control of the generator and that meet the legitimacy criteria discussed below; (2) non-hazardous secondary materials used as ingredients in a manufacturing process and that meet the legitimacy criteria; (3) materials that meet the legitimacy criteria and have been sufficiently processed into a fuel or ingredient from non-hazardous secondary materials that have been discarded; and (4) non-hazardous secondary materials used as a fuel that does not remain within the control of the generator for which EPA grants a facility’s petition for a non-solid waste determination. For the text of the proposed rule (75 Fed. Reg. 31,844, June 4, 2010), click here.

 

In addition to this proposed definition of solid waste, U.S. EPA is also proposing emission requirements under CAA §112 for industrial, commercial, and institutional boilers and process heaters at major sources (75 Fed. Reg. 32,006, June 4, 2010) and boilers at area sources (75 Fed. Reg. 31,896, June 4, 2010) and emission requirements under CAA §129 for commercial and industrial solid waste incinerators (75 Fed. Reg. 31,938, June 4, 2010). The final definition of solid waste will determine which units are classified as boilers and which are classified as incinerators under the CAA. The definition is important because standards under both §112 and §129 must be based on the actual performance of the best performing sources in each category. Putting the wrong sources in a category may skew the standards for that category resulting in the likelihood that a court will set aside those standards. The proposed definition of solid waste, if finalized, would mean that more combustion units would fall under the category of incinerators than the category of boilers. In addition to setting emission limitations for nine pollutants, §129 includes requirements for siting, monitoring, and operator training. Comments are currently due August 3, 2010 (75 Fed. Reg. 32,682, June 9, 2010).

 

As mentioned above, secondary materials used in a combustion unit must meet U.S. EPA’s proposed legitimacy criteria. For legitimate fuels, non-hazardous secondary materials must be handled as a valuable commodity, have meaningful heating value, be used as a fuel in a combustion unit that recovers energy, and contain contaminants at levels comparable to those in traditional fuels. For legitimate ingredients, the non-hazardous secondary material must be handled as a valuable commodity, provide a useful contribution, result in a valuable product or intermediate, and result in products that contain contaminants at levels that are comparable in concentration to those found in traditional products that are manufactured without the non-hazardous secondary material.

 

Under the proposal, “contaminants” refer to the hazardous air pollutants (HAPs) listed under CAA §112 and the nine pollutants listed under CAA §129, and “comparable” levels of contaminants refer to levels that are comparable or less than those in traditional fuels or traditional products that are manufactured without the non-hazardous secondary material ingredients. For a secondary material used as a fuel or as an ingredient to be handled as a valuable commodity, it must be “contained” in the same manner as the analogous fuel or ingredient. If there is no analogous fuel or ingredient, then the secondary material must be contained. A secondary material with a heating value greater than 5,000 Btu/lb, as fired, would be considered to satisfy the criterion of a “meaningful heating value”.

 

The proposal also includes a definition of processing. Under the proposal, a discarded non-hazardous secondary material would have to be changed or transformed into a new fuel or new ingredient product. Something more than a minimum level of processing would be required to produce a non-waste fuel or ingredient. The proposed regulatory definition of processing “includes, but is not limited to, operations that: remove or destroy contaminants; significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations; chemically improve the as-fired energy content; and improve the ingredient characteristics.” Examples of sufficient processing identified in the preamble to the proposed rule include changing the mass, chemical make-up, or removing particular components from the non-hazardous secondary material. Minimal operations such as cutting or sizing a material would not be sufficient. For example, the processing of coal refuse for use as a fuel or ingredient, which involves separation through the use of screens or grizzlies, blending, crushing, and some drying, would not meet the processing definition proposed even though virgin coal is similarly processed.

 

Because U.S. EPA wants a flexible rule that can accommodate increasing use and changes in technologies, secondary materials, commodities, and fuel prices, U.S. EPA is not proposing to list specific non-hazardous secondary materials as either wastes or non-wastes in regulatory language. However, the preamble to the proposed rule includes a number of specific examples. For specific examples of U.S. EPA’s proposed classifications of non-hazardous secondary materials used as fuels, click here. For specific examples of U.S. EPA’s proposed classifications of non-hazardous secondary materials used as ingredients, click here. For specific examples of U.S. EPA’s proposed classifications of non-hazardous materials processed into fuel products or ingredient products, click here.

 

The proposed rule does not include a de minimis exemption. Boiler chemical cleaning waste, oily rags or other de minimis amounts of solid waste would have to meet the requirements of CAA §129 if burned in a combustion unit under the proposed rule.

 

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

Proposed Guidelines for FY 2011 Brownfields Assessment, Revolving Loan Fund and Cleanup Grants

On June 22, 2010 EPA published proposed revisions on the 2011 Brownfields Grant Guidelines (75 Fed. Reg. 35,456). Comments on those guidelines were accepted through July 2, 2010. Highlights of the proposed revisions are provided below. The draft 2011 guidelines are available at: http://www.epa.gov/brownfields/.

 

The most significant proposed changes are the incorporation of area-wide planning as an eligible activity under the assessment grants. 

 

FY 2011 proposed changes for Community-Wide Assessment Grants includes mine-scarred lands in the funding eligibility for sites with potential contamination of hazardous substances, pollutants or contaminants.

 

Guidance for Community-Wide Assessment Grants includes the following:

 

· Grant funds may be used for conducting area-wide planning activities with a specific brownfields-impacted area, such as a neighborhood, district, city block or brownfields corridor, that lead to the development of an area-wide plan. Area-wide planning activities may include:

-    Planning to identify potential future uses for brownfields properties. Planning should be to the extent necessary to inform assessment and cleanup decisions, in order to stimulate economic development upon completion of the cleanup.

 

-    Creating a set of area-wide strategies which will help ensure successful assessment, cleanup and use of the brownfield site(s) within the brownfield s-impacted area.

 

-    Developing strategies for facilitating the reuse of existing infrastructure.

 

-    Determining next steps and identifying resources needed to implement the area-wide plan.

-    Applicants may conduct area-wide planning activities and develop an area-wide plan using assessment grant funds.

 

Ranking Criteria for Assessment Grants:

 

Scope of Project. For projects that include area-wide planning activities and development of an area-wide plan, at least one brownfields site must be assessed under this grant. For coalition projects that include area-wide planning activities and development of an area-wide plan, at least one site must be assessed with each area-wide plan developed.

 

Programming Capability. Describe the management system the applicant will have in place to direct activities under the grant. Discuss the means the applicant will use to retain project leadership or recruit qualified staff should employee turnover occur. Describe the system(s) the applicant will have in place to acquire additional expertise and resources required to perform the proposed project. If the applicant intends to contract for the necessary expertise, describe the system they will have in place to acquire that expertise.

 

Accomplishments. Describe the applicant’s success using EPA brownfields grant funds, including whether the applicant reported accomplishments to EPA in ACRES, or alternatively, via the Property Profile Form.

 

Community Engagement and Partnerships. If a related local job training program(s) (including brownfields job training grantees) exists in your target area, explain any specific efforts that have been made to collaborate and to what extent will these efforts encourage future employment in the local community to address brownfields sites (e.g. use of first source hiring ordinances or agreements, incorporating terms and conditions requiring contractors to hire locally).

 

Other Factors (for making selection recommendation). The FY2011 guidelines provide that EPA’s Selection Official may consider whether the applicant is currently participating in the EPA Brownfields Area-Wide Planning Pilot Program.

 

EPA plans to release a Brownfields Request for Proposal based on these revised guidelines during the late summer of 2010. Proposals will be due in October 2010. For additional information you may contact the EPA Office of Solid Waste and Emergency Response, Office of Brownfields and Land Revitalization, (202) 566-2777.

 

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

EPA Issues Greenhouse Gas Reporting Requirements for Underground Coal Mines and Three Other Source Categories

The U.S. Environmental Protection Agency (EPA) announced on June 29, 2010, that it is finalizing requirements under its national mandatory greenhouse gas (GHG) reporting program for underground coal mines, industrial wastewater treatment systems, industrial waste landfills and magnesium production facilities. EPA intends to use the data from these sectors to “provide a better understanding of GHG emissions” and that the data “will help EPA and businesses develop effective policies and programs to reduce them.”

 

EPA noted that methane is the primary GHG emitted from coal mines, industrial wastewater treatment systems and industrial landfills and that it is more than 20 times as potent as carbon dioxide at warming the atmosphere. The EPA announcement continued to say that the main fluorinated GHG emitted from magnesium production is sulfur hexafluoride, “which has an even greater warming potential than methane, and can stay in the atmosphere for thousands of years.”

 

These affected source categories must begin collecting emissions data on January 1, 2011, and submit initial annual reports to EPA by March 31, 2012.

 

EPA also, in a separate proposed rule, opened a public comment period regarding which industry related GHG information would be made publicly available and which would be considered confidential. All emission data are public under the Clean Air Act, However; some non-emission data may be considered confidential if it relates to information which, if made public, could harm the competitiveness of a business. EPA provided as an example of data that may be confidential data under its proposal information reported by fossil fuel and industrial gas suppliers related to production quantities and raw materials.

 

The GHG reporting program requires suppliers of fossil fuels or industrial GHGs and large direct emitters of greenhouse gases to report to EPA. EPA asserts that collecting GHG data “will allow businesses to track emissions and identify cost effective ways to reduce emissions.”

 

Under the Greenhouse Gas Reporting Program, owners and operators of facilities that are subject to quarterly sampling of mine ventilation systems by the Mine Safety and Health Administration (MSHA) must report emissions from underground coal mines and all other source categories located at the mine for which methods are defined in the rule.  Owners and operators are required to collect emission data; calculate GHG emissions; and follow the specified procedures for quality assurance, missing data, recordkeeping, and reporting. Total annual methane emissions are to be calculated as the sum of quarterly methane that is liberated from ventilation wells and shafts and degasification systems, less the quantity that is collected and destroyed.

 

Each underground coal mine meeting the MSHA threshold must monitor the following parameters for their mine ventilation air:

 

1)   Quarterly volumetric flow rate of gas for each ventilation monitoring point;

2)   Quarterly methane concentration for each ventilation monitoring point;

3)   Quarterly temperature values at the time, location, and conditions for which measurements are made;

4)   Quarterly pressure values at the time location, and conditions for which measurements are made; and

5)   Quarterly moisture content at the time, location, and conditions for which measurements are made.

 

Each underground coal mine using a degasification system (deployed before, during, or after mining operations) must also monitor the following parameters:

 

1)   Weekly volumetric flow of methane liberated from each degasification monitoring point;

2)   Weekly methane concentration from each degasification monitoring point;

3)   Weekly temperature values at the time, location, and conditions for which measurements are made;

4)   Weekly pressure values at the time, location, and conditions for which measurements are made; and

5)   Weekly moisture content at the time, location, and conditions for which measurements are made.

 

For methane liberated from degasification systems, companies are not required to monitor each well. Rather, Continuous Emissions Monitoring Systems (CEMS) may be used to monitor aggregate methane from more than one well, as long as methane from all wells is monitored and the methodology for estimating total emissions from all wells is documented.

 

Each underground coal mine where methane is destroyed or transported offsite for destruction must monitor the following parameters:

 

1)   Continuous volumetric flow of gas at each destruction device or point of offsite transport for destruction;

2)   Continuous methane concentrations of gas at each destruction device or point of offsite transport for destruction;

3)   Continuous temperature values of gas at each destruction device or point of offsite transport for destruction;

4)   Continuous pressure values of gas at each destruction device or point of offsite transport for destruction; and

5)   Continuous moisture content of gas at each destruction device or point of offsite transport for destruction.

 

A 60-day public comment period on the proposed rules will begin when the notice is published in the federal register. For more information on the final rule to add reporting requirements for four source categories, see:

http://www.epa.gov/climatechange/emissions/remaining-source-categories.html, and for more information on the proposal on data confidentiality, see:

http://www.epa.gov/climatechange/emissions/CBI.html 

 

This article was co-authored by Skipp Kropp and Matthew S. Tyree, Jackson Kelly PLLC. For more information on the authors see (Kropp) here and (Tyree) here.

DEP Proposes Revisions to Three Waste-Related Rules for 2011 Legislative Session

The West Virginia Department of Environmental Protection (DEP) has announced the public hearing schedule for its proposed 2011 legislative rules. The proposed rules include revisions to the West Virginia Hazardous Waste Management System Rule, 33 CSR 20, and revisions to two rules impacting remediation activities -- Regulations Governing Groundwater Standards, 47 CSR 12; and Monitoring Well Design Standards, 47 CSR 60. The public hearing for these rules will take place on Thursday, July 15, 2010, beginning at 6:00 p.m. at DEP’s Headquarters located at 601 57th Street S.E. in Charleston, West Virginia. Comments are due by the close of the public hearing on July 15, 2010. The proposed revisions are discussed below.

 

Ø   Hazardous Waste Management System Rule, 33 CSR 20: The proposed revisions to the state Hazardous Waste Management System Rule would adopt the federal regulations set forth in 40 CFR Parts 260 through 279 that are in effect as of June 1, 2010, with the exception of two federal amendments. One exception is the federal amendment titled “Revisions to the Definition of Solid Waste” Rule. 73 Fed. Reg. 64,668 (Oct. 30, 2008) that is currently being reconsidered by U.S. EPA. See Energy & Environment Monitor articles titled “Obama Administration EPA Reversing Bush Administration Relaxation of RCRA Rules by Considering Sierra Club Petition to Reconsider,” posted June 8, 2009, and “Sierra Club Takes U.S. EPA to Court on Its Revisions to the Definition of Solid Waste,” posted March 18, 2009. The other exception is the federal amendment titled “Expansion of RCRA Comparable Fuel Exclusion” that was adopted at the end of the Bush Administration (73 Fed. Reg. 77,954, December 19, 2008) and that was withdrawn by the Obama EPA effective June 15, 2010. 75 Fed. Reg. 33,712 (June 15, 2010). The federal amendment would have classified as non-hazardous waste fuels produced from hazardous secondary materials which, when burned in industrial boilers under specified conditions, generate emissions that are comparable to emissions from burning fuel oil in those boilers. See Energy & Environment Monitor article titled “New Emission-Comparable Fuel Exemption from Classification as Hazardous Waste,” posted January 23, 2009. Because U.S. EPA was reconsidering both the “Revisions to the Definition of Solid Waste” and “Expansion to [sic] RCRA Comparable Fuel Exclusion” last year, the current state Hazardous Waste Management System Rule expressly excludes both federal rules from incorporation by reference. Now that U.S. EPA has withdrawn the “Expansion of RCRA Comparable Fuel Exclusion,” the proposed revisions would strike the reference to “Expansion to [sic] RCRA Comparable Fuel Exclusion” from the exclusion provision of the final rule at §33-20-1.10. 

 

In addition, DEP’s proposed revisions would also adopt two new federal rules: (1) “Revisions to the Requirements for Transboundary Shipments of Hazardous Waste Between OECD [Organization for Economic Cooperation and Development] Member Countries” that was published January 8, 2010 (75 Fed Reg. 1236); and (2) “Hazardous Waste Technical Corrections and Clarifications Rule” that was published March 18, 2010 (75 Fed. Reg. 12,989). However, on June 4, 2010, U.S. EPA published a partial withdrawal of its March 18, 2010 “Hazardous Waste Technical Corrections and Clarifications Rule” (75 Fed. Reg. 31,716). The technical corrections and clarifications that were not withdrawn took effect June 16, 2010.   

 

In the June 4, 2010 partial withdrawal, U.S. EPA withdrew six of the original amendments from the March 18, 2010 direct final rule that DEP is proposing to adopt. U.S. EPA received adverse comment on four specific amendments and therefore withdrew them effective June 4, 2010. The four specific amendments are: (1) 40 CFR §262.34(a) related to the applicability of the 90-day hazardous waste accumulation time only to large quantity generators who are defined as including generators who generate “greater than 1 kg of acute hazardous waste…in a calendar month.”; (2) 40 CFR §262.34(a)(2) related to a new requirement that the accumulation start date be clearly marked and visible for inspection on each tank; (3) 40 CFR §262.34(a)(5) related to the closure requirements for tanks, containers, drip pads and containment buildings; (4) 40 CFR §266.20(b) concerning a new requirement that recyclers submit a one-time certification and a one-time notification for the initial shipment (as opposed to each shipment) of certain recyclable materials (i.e., hazardous waste-derived products) used in a manner constituting disposal. As a result of withdrawing 40 CFR § 262.34(a)(5), U.S. EPA also withdrew a related amendment at 40 CFR § 262.34(a)(1)(iv)(B), which previously applied only to containment buildings, because the Agency had deleted the latter part of this particular regulatory citation in the March 18, 2010 direct final rule in an effort to clarify the closure requirements for tanks, containers, drip pads and containment buildings. Additionally, there was a typographical error related to the entry for U.S. EPA hazardous waste K107 in the Table at 40 CFR §261.32(a).

 

Ø   Regulations Governing Groundwater Standards Rule, 47 CSR 12: West Virginia’s Regulations Governing Groundwater Standards Rule establishes minimum standards of purity and quality for groundwater located within the State. The proposed revision would remove the numeric standard for radon of 300 picocurie per liter (pCi/L) that was proposed by DEP last year and adopted by the West Virginia Legislature during the 2010 legislative session. The radon standard that was adopted, however, had only been proposed and not finalized by U.S. EPA. This year’s proposed revision reflects U.S. EPA’s 2009 Edition of the Drinking Water Standards and Health Advisories. 

 

Ø   Monitoring Well Design Standards Rule, 47 CSR 60: West Virginia’s Monitoring Well Design Standards Rule was first promulgated during the 1996 legislative session and revised during the 2010 legislative session. The proposed revisions to 47 CSR 60 would correct requirements for documentation submittals to DEP. The current rule requires reporting of all borehole abandonment, which DEP acknowledges in its briefing document is “unenforceable and unnecessary”. The proposed revisions would change §47-60-19.5 to require abandonment documentation only for “high risk” boreholes and permanent monitoring wells. The minutes of the June 3, 2010 meeting of DEP’s Environmental Protection Advisory Council indicate that this “was the original intention of the 2010 amendments recommended by the Monitoring Well Advisory Council.” “High risk” boreholes are defined in §47-60-19.2.a of the current rule as “those boreholes on sites containing or formerly containing solid or hazardous waste, hazardous materials or their by-products, or that may be affected by solid or hazardous waste, hazardous materials or their by-products in the future; or at sites of known or suspected contamination unless otherwise determined to be innocuous; or in situations where water quality in one water bearing zone may be detrimental to another water bearing zone.”

 

The marked-up version of the 2010 rules, including DEP’s notice of public hearing and briefing document, and minutes of the June 3, 2010 Environmental Protection Advisory Council meeting, are available on the Secretary of State’s web site up until the close of the comment period by clicking here. Once the comment period has closed the marked-up version of the rules will no longer be available on the Secretary of State’s web site. After the close of the comment period, the marked-up version of the rules may be obtained from DEP or the Secretary of State through a Freedom of Information Act Request.

 

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