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$1.53 Billion Jury Award for Gasoline Release

On June 30, 2011, a Baltimore County Circuit Court jury ruled against ExxonMobil Corporation and awarded plaintiffs $1.53 billion in damages – two thirds in punitive damages - for a release of regular unleaded gasoline from a 12,000 gallon underground storage tank (UST) system at an ExxonMobil retail facility.  The gasoline was apparently released from an underground “burst pipe.”  The release of approximately 26,000 gallons over a 37 day period (or approximately 0.5 gallon per minute) occurred during January and February 2006 from an independently-owned retail fuel facility located in Jackson, Maryland, about 20 miles north of Baltimore.  The facility is located in a relatively affluent residential area that relies solely upon ground water for its drinking water needs.  An investigation by the Maryland Department of the Environment (MDE) concluded that ExxonMobil had refilled the 12,000 gallon UST several times during the 37 day period that it was leaking. 

According to a July 2, 2011 article in the Wall Street Journal, the plaintiffs in the case were 160 families and business that rely upon ground water wells for their drinking water.  The jury awarded compensatory damages for diminished property value, fear of cancer, loss of use of the area, fear of the loss of property value, and for medical monitoring purposes.  In a statement, ExxonMobil said it will appeal the jury awards. "We are obviously disappointed at this result, which we believe is unsupported by the facts and the law."  As soon as the leak was discovered, we immediately took responsibility and, sparing no expense, began cleanup activities."  The assessment and remediation of the release was performed under the oversight of the Maryland Department of the Environment (MDE).  The plaintiffs' complaint alleged that the independent gasoline-station owners continued "business as usual" after the leak was discovered. 

Exxon Mobil asked the Maryland Department of the Environment (MDE) in January 2010 for approval to stop monitoring some of the 248 private wells near the Jacksonville, Maryland station. MDE agreed to the oil company's request to stop monitoring 130 of the wells.  Exxon Mobil also stopped delivering bottled water to those homes. 

According to a July 1, 2011 article in the Baltimore Sun, ExxonMobil's lead lawyer in the case, James F. Sanders, said Friday that he anticipates a "veritable book" of post-trial motions to be filed in the Baltimore County Circuit Court in the next couple of weeks.  Those arguments will be made before the trial judge, Robert N. Dugan, as a preamble to proceedings before the Maryland Court of Special Appeals.  Sanders said it's possible that appeals in this case might reach the federal courts, as the punitive damage awards could raise constitutional issues over due process. 

The $150 million verdict in an earlier trial relative to this gasoline release in a separate ExxonMobil case involving another group of plaintiffs was returned in the spring of 2009.  In September 2011, the Maryland Court of Special Appeals will hear a second round of arguments in that case, this time before all 12 of the court's justices rather than a three-judge panel. 

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

EPA Proposes Penalty for Violation of Underground Injection Control (UIC) Permitting Requirements

EPA recently proposed a $157,000 civil penalty against a company for its alleged unauthorized discharge of over 200,000 gallons of brine generated from its oil production operations into underground injection wells in Pennsylvania in violation of Underground Injection Control (UIC) Permitting Requirements. 

The UIC program regulates the construction, operation, and closure of injection wells that pump fluid, often brine generated from drilling operations, underground for storage, disposal or enhanced recovery purposes.   The goal of the UIC program is to protect underground sources of drinking water (USDW) from becoming contaminated by underground injections.  

Before an operator can inject brine or other wastes underground, it must apply for and receive a UIC Permit.  As part of the application process, an operator must supply maps and geological cross sections of the injection area, geological data on the injection and confining zones, information on the contents and amount of material to be injected, and monitoring and well abandonment plans. 

In Pennsylvania and Virginia, the EPA administers the UIC program directly, while West Virginia and Kentucky have been granted primacy to administer their own UIC programs through state environmental protection agencies.   

Operators can be subjected to penalties for various infractions of the UIC program, including the unauthorized injection of fluids, failure to maintain the mechanical integrity of a well, or exceeding the authorized injection pressure so as to cause fluid to move outside of the authorized injection zone.  When such violations occur, the UIC Program Director or state agency may issue fines, require the operator to clean up the affected area, or order the injection well to be closed. 

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

McKinley’s Coal Ash Bill Passes Subcommittee Vote

A House bill proposed by Rep. David McKinley, R-W.Va., aimed at preventing the EPA from reclassifying coal ash as a hazardous waste was approved on June 22 by the Energy and Commerce Subcommittee on Environment and the Economy. 

The bill, known as the Coal Residuals Reuse and Management Act, would allow industries to continue using coal combustion residuals while buttressing states’ regulatory authority under the Solid Waste Disposal Act.  The legislation is specifically aimed at halting the Obama administration’s proposal to regulate coal ash under RCRA Subtitle C – a classification for hazardous materials. 

McKinley cited the potential for hundreds of thousands of job losses in addition to approximately $100 billion dollars in added costs in light of the proposed reclassification as a driving force behind the bill. 

“We must continue to push legislation that will help keep the cost of doing business down and the cost to consumers low if we ever intend to get our country out of this recession," he said. "The EPA and President Obama need to stop treating these statistics as numbers and start treating them like unemployed American citizens.” 

Rep. Fred Upton, R-Mich., chairman of the House Energy and Commerce Committee, put out a statement in favor of the bill.  In his statement, Rep. Upton declares that: 

“Beneficial reuse of coal combustion residuals benefits the economy and jobs as well as the environment.  Each truckload of these materials that is used to make concrete last longer or make dry-wall sturdier is one less truckload that needs to go in a landfill. 

One year ago, the Obama EPA put a big question mark over the coal ash recycling industry when it proposed to regulate coal ash under RCRA Subtitle C, which is a classification for hazardous materials.  A consensus has formed that this idea goes too far and that the states are best suited to carry out coal ash regulations. 

In response to the clear need for a legislative fix, we engaged members and worked hard to develop a compromise bill, which finds an elegant solution that ensures coal ash will be handled responsibly, with states maintaining the primary role as they do with municipal solid waste.” 

This article was authored by Douglas J. Crouse, Jackson Kelly PLLC. For more information on the author see here.

WVDEP Proposes Revisions to Waste Rules

The West Virginia Department of Environmental Protection (WVDEP) is proposing revisions to three waste rules for the 2012 legislative session.  The three waste rules are:  (1) West Virginia Solid Waste Management Rule, 33 CSR 1; (2) West Virginia Hazardous Waste Management Rule, 33 CSR 20; and (3) West Virginia Voluntary Remediation & Redevelopment Rule, 60 CSR 3.  The WVDEP filed the proposed rules with the West Virginia Secretary of State’s Office in June 2011, opening the public comment period on the proposed revisions to the rules.  The WVDEP will conduct a public hearing on the proposed rules at 6:00 p.m. on Tuesday, July 12, 2011, in the Coopers Rock Training Room of the WVDEP’s Headquarters located at 601 57^th Street, Southeast, in Charleston, West Virginia. The public comment period will end at the conclusion of the hearing.  The proposed revisions to each rule are discussed below. 

Solid Waste Management Rule:  The proposed revisions to the West Virginia Solid Waste Management Rule, 33 CSR 1, would add a definition of “covered electronic devices” to the list of defined terms.  The proposed definition would track the statutory definition found in W. Va. Code §22-15A-2 (2009 Repl. Vol.), which is part of the A. James Manchin Rehabilitation Environmental Action Plan, commonly known as REAP, and reads as follows:  

“Covered Electronic Device” means a television, computer or video display device with a screen that is greater than four inches measured diagonally. “Covered electronic device” does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment. 

In addition to the above-quoted definition, the proposed revisions would add covered electronic devices as unacceptable waste banned from disposal in the State’s landfills. The WVDEP is proposing these revisions in response to the passage of Senate Bill 398 on March 13, 2010, which amended and reenacted W. Va. Code §22-15A-22 to ban certain electronic devices from landfill disposal.  

The proposed rule would also make what the WVDEP refers to in its “Fiscal Note for Proposed Rules” as “technical revisions and corrections” throughout the proposed rule.  These “technical revisions and corrections” include proposed revisions to the provisions related to the cleaning of the leachate collection system.  The proposed revisions would remove language that the system be “cleaned and maintained as necessary” and would replace it with a requirement that the system be “cleaned with water jet cleanout device or equivalent immediately after construction.”  

The proposed revisions would also add a requirement to the list of general requirements that the operator “prevent and eliminate conditions not otherwise prohibited by this rule that are harmful to the environment or public health or that create safety hazards, odors, dust, noise, unsightliness, and other public nuisances.”  Compliance with this “nuisance” language, if finalized, may be problematic for operators because of the vagueness of many of the words such as “create…odors, dust, noise, unsightliness”.  

Finally, the proposed revisions would eliminate existing language allowing the WVDEP Secretary to approve the substitution of three feet of compacted soil, with a minimum permeability of 1 x 10^-6 cm/sec for the required two feet of compacted clay, with a minimum permeability of 1 x 10^-7 cm/sec “if equivalency of groundwater protection can be proven.”  For the text of the proposed Solid Waste Management Rule that was filed June 13, 2011, click here. 

Hazardous Waste Management Rule:  The proposed revisions to the West Virginia Hazardous Waste Management Rule, 33, CSR20, would adopt and incorporate by reference changes to the federal counterpart regulations at 40 CFR Parts 124 and 260 through 279 in effect on June 1, 2011.  

The proposed revisions would also allow for the issuance of a RCRA standardized permit rather than an individual permit to RCRA treatment, storage, and disposal facilities (TSDFs) for containers, tanks, and containment buildings.  To be eligible for a standardized permit, a RCRA TSDF must generate hazardous waste and then store or non-thermally treat the hazardous waste on site in containers, tanks, or containment buildings.  The standardized permit would also be available to TSDFs that receive hazardous waste generated off-site by a generator under the same ownership as the receiving facility, and then store or non-thermally treat the hazardous waste in containers, tanks, or containment buildings.  The standardized permit will streamline the RCRA permitting process for eligible TSDFs.  

In addition to the standardized permit, the proposed revisions would also grant authority to the Public Service Commission to regulate the transportation of hazardous waste by roads and highways as well as railroads and would clarify that the Division of Highways also regulates the use of state highways for the transportation of hazardous waste.  The proposed revision would amend the  West Virginia Hazardous Waste Management Rule to reflect that the authority the WVDEP previously transferred to the Division of Highways to regulate hazardous waste on the highways has been transferred by statute to the Public Service Commission when the Weights & Measures Section was transferred from the DOH to the PSC.  For the text of the proposed Hazardous Waste Management Rule that was filed June 9, 2011, click here.  

Voluntary Remediation and Redevelopment Rule:  The proposed revisions update the toxicological profiles used in developing the De Minimis risk-based cleanup standards table that is used to determine whether or not environmental contamination at a site exceeds levels that would be protective of human health. Because the toxicological profiles for many chemicals in the federal IRIS database have been revised, the proposed changes to the De Minimis table are necessary.  

The proposed revisions also incorporate what the WVDEP refers to in the briefing document that accompanied the proposed rule filed with the West Virginia Secretary of State’s Office as “minor changes”.  These “minor changes” include many of the changes suggested by the West Virginia Chamber of Commerce in response to a survey initiated by the WVDEP in February 2011.  For example, the proposed revisions would incorporate into the rule the WVDEP’s policy granting an enforcement shield from the time an application is filed provided the applicant continues to negotiate a reasonable agreement in good faith. The proposed revisions would also specify certain topics of discussion during the pre-application conference for brownfield applicants.  Additionally, the proposed revisions would require that all program documents, including applications, work plans, and Final Reports, be submitted in both hardcopy and electronic versions, that e-mail addresses be provided on submissions, and that all documents be submitted to both the WVDEP Division of Land Restoration at the WVDEP’s Headquarters in Charleston, West Virginia, and the WVDEP Project Manager.  

The proposed revisions would also make changes to the approved program documents.  For example, the agreement would require attachment of a map depicting the site boundaries and a statement of the number of acres.  Under the proposed rule, the agreement would require that the applicant submit the final report prepared by the licensed remediation specialist along with a request for a Certificate of Completion and that the 60-day clock for action by the WVDEP on the final report commence upon receipt by the agency of the request for a Certificate of Completion.  The Certificate of Completion form would be modified to list all of the modifications to the agreement and the date of each modification.  For the text of the proposed Voluntary Remediation and Redevelopment Rule that was filed June 10, 2011, click here. 

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

EPA Releases Company Confidential Information

In a highly unusual and precedent setting action June 8, 2011, U.S. EPA made public the identities of more than 150 chemicals contained in 104 health and safety studies required by the Toxic Substances Control Act (TSCA).  A few companies had voluntarily declassified information, but most chemical identities were unilaterally made public by EPA.  Apparently all of the companies had made appropriate confidentiality claims which were fully accepted by U.S. EPA;  there is no mention of a claim by EPA that the claims of confidential business information were unwarranted (see 3/24/11 action described below).  EPA’s rationale for releasing this confidential data was the need to provide the public has as much information as possible about the health and the environmental impacts of chemicals, the U.S. Environmental Protection.

The chemical identity composition data for these 104 TSCA studies will no longer be redacted from the public report.  The chemicals involved are used in dispersant formulations and consumer products such as air fresheners, non-stick and stain resistant materials, fire resistant materials, nonylphenol compounds, perfluorinated compounds, and lead. 

Under the Obama Administration, EPA has taken a series of unprecedented actions to provide the public with greater access to information on the chemicals that are manufactured and used in the United States. In 2010, EPA challenged industry to voluntarily declassify allegedly “unwarranted” claims of confidential business information (CBI). The agency also issued new guidance (Jan. 21, 2010, 75 FR 3462) outlining plans to deny confidentiality claims for chemical identity in health and safety studies under the TSCA. Based on this guidance, EPA notified a number of companies in February, 2011, that the agency had determined that their CBI claim was not eligible for confidential treatment under TSCA and that EPA intended to make the information public. On March 24, 2011, EPA made 42 health and safety studies that had been claimed and treated as confidential available to the public.  EPA is committed to posting new declassified materials under TSCA on the agency website on a regular basis. 

The release of this confidential data submitted by companies pursuant to TSCA is of significant concern because of all of the environmental programs, the most detailed information regarding product composition is submitted pursuant to TSCA. This type of information makes reverse engineering of the product possible and when TSCA was implemented, industries’ greatest concern was the probability for product infringement. EPA assuaged these concerns via the mechanism of “confidential business information” (CBI), with the assurance that CBI would be maintained and the information would not be disclosed to the public. 

It is certainly possible that EPA will be taking similar actions in regard to the claims for CBI made pursuant to the Clean Air Act, the Clean Water Act and RCRA. The most important of these is the Clean Air Act since the type of information required by EPA often requires submittal of detailed process information. 

Over the past several months EPA has taken a number of other steps to make chemical information more readily available.  December 22, 2010, EPA made available the new Chemical Data Access Tool available on Data.gov to find health and safety data that has been submitted to the Agency, under authorities in sections 4, 5, and 8 of TSCA.  On May 17, 2010, EPA added more than 6,300 chemicals and 3,800 chemical facilities regulated under TSCA to EPA's public Envirofacts database. The Envirofacts database is EPA's single point of access on the Internet for information about environmental activities that may affect air, water and land, and provides tools for analyzing the data. It includes facility name and address information, aerial image of the facility and surrounding area, and the map location of the facility. Envirofacts links to other EPA information on the facility, such as EPA's inspection and compliance reports that are available through the Enforcement Compliance History Online (ECHO) database, which includes historic information.   

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

West Virginia Operators of Regulated Underground Storage Tanks to Have Required Training by August 2012

If your company has an underground storage tank (UST) or multiple USTs, the personnel responsible for operation and maintenance of the USTs and those individuals on-site who would be responsible for responding to emergencies are required to complete required training on or before August 8, 2012, in accordance with West Virginia Legislative Rules Title 33 CSR 30-7.  The state regulations are federally mandated for states that regulate USTs.  This requirement applies to those companies that may have one UST to fuel an emergency generator to large service station chains and everyone in between. 

The regulations identify three types of individuals that require training: 

Class A Operator.  Responsibilities include management of the UST system in order to achieve and maintain regulatory compliance.  These responsibilities are to be performed by the own/operator. 

Class B Operator.  Responsibilities include implementation of daily on-site operations and maintenance of the UST systems.  This individual performs record keeping and reporting. 

Class C Operator.  These individuals control or monitor the dispensing of regulated substances and are responsible for the initial response to releases or alarms.  The Class C Operator must be onsite during all hours of operation.  For facilities that are not manned, the West Virginia Department of Environmental Protection (WVDEP) has provided a guidance document policy that requires at least one Class C Operator to be available to respond immediately to calls from the facility and who is able to reach the site within 60 minutes. 

According to the WVDEP guidance document regarding this training, Class A Operator responsibilities must be performed by the own/operator and cannot be assigned to an outside party.  The Class B Operator  responsibilities could be assigned to an outside party, upon request and approval by the WVDEP.  The provisions for prohibiting contracting out these services to an outside party are not addressed in the Legislative Rules and appear to be a policy developed by the WVDEP.   A copy of the guidance document is available on the WVDEP website at http://www.dep.wv.gov/WWE/ee/ust/Documents/oper_trng_guidance_doc.pdf.   The guidance document identifies the contents of the training and further defines the duties of UST system operators. 

A list of vendors providing training for each of the three classifications is available on the WVDEP website at http://www.dep.wv.gov/WWE/ee/ust/Pages/USTOperatorTraining.aspx.  

Training will include testing to measure all aspects of the individual’s knowledge and skills to competently operate UST systems.  

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

EPA’s Boiler and CISWI Rule On Hold

EPA announced on May 16, 2011 that it is going to pursue more time to facilitate public comment and gain stability in the final standards for boilers and certain solid waste incinerators before finalizing the rule.  EPA cites to the 4,800 comments received that included new information that will impact the final outcome of the rule.  In addition, EPA is pursuing additional information about the investments that may not be reversible if the standards are revised following reconsideration and full evaluation of all relevant data.  Finally, EPA is responding to the petitions for administrative and judicial review.  EPA finds that pursuant to the Administrative Procedures Act, Section 705, that justice requires postponing the effectiveness of these rules.  The stay of the rule will remain in place until the proceedings for judicial review of these rules are completed or EPA completes reconsideration of the standards, whichever is earlier.  The delay is applicable only to the portions of the Major source boiler MACT and the CISWI rules as amended by the March 21, 2011 Federal Register Publications, 76 FR 15608 and 76 FR 15704.  

EPA will be accepting additional data related to affected sources and their emissions by July 15, 2011.  Further information may be obtained at http://www.epa.gov/airquality/combustion/actions.html. 

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

Management of PCBs in Schools

During the last several years, the USEPA has been focusing attention on the potential presence of PCBs in various materials used to construct schools.  For example, in September 2009, the USEPA issued guidance about the potential presence of PCBs in the caulk of pre-1978 buildings.  In addition, USEPA also announced that it was conducting additional research into the potential for PCBs in caulk to be released to the air, which is ongoing.  Recently, USEPA released an on-line guide for School Administrators and Maintenance Workers entitled Proper Maintenance, Removal, and Disposal of PCB-Containing Fluorescent Light Ballasts.  This document is available at http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/ballasts.htm.  

Until the late 1970s, PCBs were used as insulators in electrical equipment.  USEPA banned the manufacture of PCBs in the United States in 1977, and then the processing and distribution in commerce of PCBs in 1979, except in totally enclosed equipment as per the Toxic Substances Control Act (TSCA).  Use of PCB-containing ballasts was allowed to continue provided that the ballasts had not failed and PCBs were not leaking.  USEPA notes that the pre-1979 light ballasts are well past their expected useful life and pose an excess risk due to fires, leakage of PCBs, and breakage.  

USEPA states that the purpose of the on-line website is to provide information for school administrators and maintenance personnel about the risks posed by PCBs in light ballasts in schools and “how to properly handle and dispose of these items, and how to properly retrofit the lighting fixtures in your school to remove potential PCB hazards.”  USEPA also states that “while intact PCB-containing light ballasts pose no immediate health threat, they are likely to fail over time.”  

USEPA’s on-line guide is relatively short, only eight pages long, and is written for the non-scientist.  When reviewing the guide it is clear that USEPA’s intent is to encourage schools to remove all older light ballasts containing PCBs whether they are leaking or not, and to assume that they are PCB-containing if there is any question at all as to whether they may contain PCBs.  To reinforce their point, USEPA provides several stories of how PCB-containing light ballasts have leaked or caught on fire, thereby exposing students and teachers to PCBs.   Finally, USEPA argues that replacing the older light ballasts with new high efficiency, Energy Star lighting that will pay for the retrofit, generally in less than seven years.  In general, the USEPA guide provides the following information:

• Background on PCBs and potential health risks.
• Identifying fluorescent light ballasts that may contain PCBs.
• Whether PCB-containing fluorescent light ballasts should be removed.
• How to handle ballasts containing PCBs.
• Risks and potential costs if PCB ballasts are not replaced.
• Dangers to students and teachers from PCB-containing ballasts.
• Cleanup and decontamination as a result of a ballast leak or fire.
• Procedures for replacing ballasts.
• Procedures and regulations for managing PCB cleanup wastes and PCB-containing ballasts.
• Governmental and non-governmental resources to pay for a retrofit.

Finally, after reviewing this guidance if the school administrator or maintenance personnel have not concluded that they must remove all old fluorescent light ballasts from their facilities, USEPA states that “Postponing a lighting retrofit and betting on the structural integrity of old ballasts may result in health and educational impacts for your students and staff and serious cost impacts for your budget.” 

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

EPA Proposes 91% National Reduction for Mercury As Well As Reductions of Other Toxics from Power Plants And Claims That Program Will Reduce Future Cost Of Power

Citing what it terms significant human health impacts and a court mandated deadline, US EPA on March 16, 2011, announced a proposal to reduce emission of mercury and other toxics, including arsenic, chromium, nickel and acid gases. The EPA announcement is short on specifics, other than to say that its proposal will reduce mercury emissions by 91%, but EPA nonetheless states that it projects that the new standards will prevent “as many as 17,000 premature deaths and 11,000 heart attacks a year.” EPA adds that “the new proposed standards would also provide particular health benefits for children, preventing 120,000 cases of childhood asthma symptoms and about 11,000 fewer cases of acute bronchitis among children each year. The proposed standards would also avert more than 12,000 emergency room visits and hospital admissions and 850,000 fewer days of work missed due to illness.”  

 

EPA projects that construction of controls by EGUs to comply with the new standards will result in 31,000 short term construction jobs and 9,000 long term utility jobs. Significantly, EPA also estimates that the cost of compliance with the new standards will result in retirement of only 1% of the utility coal fleet, estimating that 10 GW of generating capacity will be retired out of a current total of 1104 GW of capacity. However, that retirement figure is much lower than percentages estimated by the EGU regulated community. Moreover, the estimated benefits of the program are difficult to analyze since the EPA announcement provides no details on reductions of any of the other toxics to be regulated. 

 

EPA’s proposed rule provides up to 4 years for EGU facilities to meet the standards and EPA notes that, once the standards are fully implemented, they will prevent 91 percent of mercury in coal from being released into the air. The announcement does not specify the amounts of reductions of any of the other toxics the standard will cover.   

 

EPA estimates in its proposal announcement that, for every dollar spent to reduce EGU emissions, there will be a concomitant health and economic benefit of up to $13. Total health and economic benefits of the proposed standard are estimated by EPA at as much as $140 billion on an annual basis. EPA future cost of power projections also predict that the cost of power as a result of compliance with the new standards will be lower by 2030 than the EIA 2030 future cost projections without the proposed rule in place. Those cost estimates will undoubtedly be the subject of voluminous public comment since it is difficult to understand how the estimated cost of power in 2030 without the rule can be higher than the estimated cost of power with the rule in place as shown on EPA slides used during the announcement.

 

The EPA announcement also notes that the proposed standard “puts a premium on important input and feedback from stakeholders to inform any final standard,” adding that “the public comment period, which will last 60 days after appearing in the Federal Register, will allow stakeholders including the public, industry and public health communities, to provide important input and feedback, ensuring that any final standard maximizes public health benefits while minimizing costs.”

 

EPA will hold public hearings in Philadelphia, Atlanta, and Chicago on the proposal on dates yet to be determined.

 

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

EPA Pressed to Meet Deadline for Boiler Emission Standards

January 20, 2011 the federal District Court for the District of Columbia issued an order extending by 30 days EPA’s January 16, 2011 deadline to issue emission standards for large and small boilers and solid waste and sewage sludge incinerators in a set of three inter-related rules as well as a re-definition of solid waste for the purpose of the incineration standard. 

The rule impacts almost 200,000 boilers and 176 solid waste incineration units across the U.S. EPA had requested a deadline of April 13, 2011 to allow EPA to re-propose its April 29, 2010 proposed rules to reflect the changes made as a result of the 4,800 comments it received. The comments raised issues that EPA stated it had not fully considered and which provided substantial additional data that raise questions about some of the Agency’s initial conclusions.  EPA argued to the Court that the comments materially affected important decisions relating to source categorizations and coverage for the final emission standards. 

EPA expressed concern that because of intended changes to the rule on the basis of submitted comments promulgating a final rule without  re-proposing the rule, would make it susceptible to invalidation if the rule was not a “logical outgrowth” of the proposed rule citing  Small Refinery Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) which held that EPA  cannotpromulgate a final rule that materially differs from the proposal unless the changes are a “logicaloutgrowth” of the proposal. EPA requested to publish the revised proposals for these three rules no later than June 1, 2011, and promulgate the final emission standards no later than April 13, 2012. 

EPA expressed is disappointment over the truncated schedule imposed by the Court, but stated that it would employ its best efforts to meet the deadline. Unfortunately, the Court’s decision may cause EPA to fail to make changes it would have otherwise have made in the rules in response to the new information in the comments in order to avoid the rule being invalidated on the basis of the “logical outgrowth” principle. 

The April 29, 2010, EPA proposed regulations included the following inter-related set of regulations: 

• Emission standards for Industrial Commercial and Institutional Boiler and Process Heater Major Sources [major source has potential to emit 10 or more tons per year (tpy) of any single air toxic or 25 tpy or more of any combination of air toxics.] The rule applies to boilers, which burn natural gas, fuel oil, coal, biomass (e.g., wood), refinery gas, or other gas to produce steam used to produce electricity or provide heat and to .process heaters, which heat raw or intermediate materials during an industrial process. Most major source boilers and process heaters are located at industrial facilities such as refineries, chemical and manufacturing plants, and paper mills. Commercial boilers may service shopping malls or other commercial facilities and institutional facilities service universities and hospitals and are usually “area sources” discussed below.  
•  EPA has identified 11 different subcategories of boilers and process heaters based on the design of the various types of units. The proposed rule would include specific requirements for each subcategory. 
• Emission standards for area sources (non-major sources) of industrial, commercial and institutional boilers and process heaters.The majority of area source boilers covered by the proposed rule are located at commercial and institutional facilities and burn coal, oil, or biomass, or non-waste materials. Units that burn solid waste are regulated under the solid waste incineration rule discussed below.  EPA proposed to regulate area source boilers based on boiler design. Boilers are designed differently depending on what kind of fuel they burn: coal, oil or biomass. Also, the proposal would set different requirements for large and small boilers. Large boilers have a heat input capacity equal to or greater than 10 million Btu per hour and small boilers have heat input capacity of less than 10 million Btu per hr. 
• Revisions to the December 2000 new source performance standards (NSPS) and emission guidelines (EG) for new and existing commercial and industrial solid waste incineration (CISWI) units.A CISWI unit is any device used to burn solid waste at a commercial or industrial facility and does not include municipal solid waste incinerators, which are covered under separate rules. Examples of CISWI units include:

  -     units designed to discard solid waste;

  -     energy recovery units designed to recover heat that combust solid waste;

  -     waste burning kiln that combust solid waste in the manufacture of a product; and

  -     burn-off ovens that combust residual material off racks, parts, drums, or hooks so those items can be re-used in various production processes. 

• Incinerators were the only subcategory covered in the December, 2000 rule. The proposed rule would cover five CISWI subcategories: 

  -     incinerators

  -     energy recovery units

  -    waste burning kilns

  -     burn-off ovens; and

  -     small, remote incinerators. 

• Aspart of this action, EPA is also proposing which non-hazardous secondary materials would be considered solid waste and which would be considered fuel. This distinction would determine whether a material can be burned in a boiler or whether it must be burned in a solid waste incinerator. EPA   proposed a definition of solid waste, under the Resource Conservation and Recovery Act (RCRA) which could affect some units currently considered boilers by moving them into category of commercial and industrial solid waste incinerators if they burn solid waste. This proposed rule seeks to clarify which non-hazardous secondary materials are, or are not, solid wastes when burned in combustion units. Under the proposal:

  -     Units that burn non-hazardous secondary materials that are considered solid waste under RCRA would be subject to the section 129 Clean Air Act (CAA) requirements, and 

  -     Units that burn non-hazardous secondary materials that are not considered solid waste under RCRA would be subject to the section 112 CAA requirements. 

• This proposal would significantly narrow the current universe of non-hazardous secondary materials that when burned in combustion units would be subject to section 112 CAA requirements. Instead, they would be regulated by CAA 129 requirements if they are solid waste. The following non-hazardous secondary materials are not a solid waste under the proposal:

  -     Material used as a fuel that remains within the control of the generator (whether at the site of generation or another site the generator has control over) and it meets the legitimacy criteria;

  -     Material used as an ingredient in a manufacturing process (whether by the generator or a third party) that meets the legitimacy criteria;

  -     Material that has been sufficiently processed to produce a fuel or ingredient product that meets the legitimacy criteria; and

  -     Material that has been determined through a case-by-case petition process to not have been discarded and to be indistinguishable in all relevant aspects from a fuel product. 

• The inter-relationship of the rules is that they all involve sources which burn fuel or solid waste and the regulated hazardous air pollutants are the same. Mercury and lead are the air toxics of prime importance to EPA based on alleged adverse affects on children's developing brains -- including effects on IQ, learning, and memory. Other toxic air pollutants regulated are cadmium, dioxin, furans, formaldehyde and hydrochloric acid as carcinogens or otherwise causing  adverse health effects in adults and children. 
• Boiler and commercial/industrial solid waste incinerator (CISWI) regulations are closely related because similar units may be considered boilers or CISWI units based on whether or not they burn solid waste materials. 

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