Monday, September 9, 2013.

Michigan Couple Fighting #Fracking on Federal Lands. John Davis Jr. and Marybeth Pritschet-Davis filed a lawsuit against the federal Bureau of Land Management (BLM) to stop a planned lease of oil and gas development rights in the Allegan State Game Area. Because the Area is home to a number of endangered and threatened species, they are concerned that fracking will disrupt and harm those natural resources. The lawsuit alleges BLM violated the National Environmental Policy Act (NEPA) by improperly preparing two Environmental Assessments related to the planned leases.  http://bit.ly/1cZ6p49

Shell Agrees to Clean Air Act Permit Violations in AK Offshore Oil Exploration. Shell Offshore Inc and Shell Gulf of Mexico Inc agreed to pay $1.1M penalty for violations of two air permits for excess air emissions and other air permit violations during their oil exploration in the Chukchi and Beaufort Seas off the North Slope of Alaska. The violations were related to the drill ship fleets Discoverer and Kulluk. http://1.usa.gov/15dOlRY

Tuesday, September 10, 2013

The Push Is On – Green Groups Target GOP for Action on Climate Change. Ever since Pres Obama asked EPA to roll out by Sept 20 its revised greenhouse gas emission controls for future power plants in his June 2013 speech, there has been much pushing and shoving among the groups for and against the regulations. The most recent entry is the Environmental Defense Fund which will spend $400K on ad buys that target GOP Senators who may be swing votes on any effort to block the EPA rules. http://politi.co/18MQIdd Right now, the focus is on the House Subcommittee Sept 18 hearing before which the EPA Administrator and Energy Secretary will testify. http://bit.ly/17VHlpj

EPA Quietly Withdraw 2 Chemical Safety Regulations. The EPA announced on Sept. 6 that it is withdrawing two proposed rules regarding regulation of chemicals. The first rule (http://1.usa.gov/1edMBOv) would have allowed EPA to require chemical mfrs to provide more information, both to the agency and the public, on several chemicals of particularly high health concern. The second rule (http://1.usa.gov/1edMBOv) would have clarified EPA’s policy regarding the ability of chemical manufacturers to claim certain chemical information as “confidential business information” (CBI). The rules had been submitted to OMB’s Office of Information and Regulatory Affairs (OIRA) by the EPA in May 2010 & Dec 2011, but had never been released by OIRA to allow EPA to proceed with the regulatory development process. http://bit.ly/13Hunhq

Wednesday, September 11, 2013

Arizona and Three Utility Companies’ Request to Delay Power Plant Pollution Controls Denied by 9th Circuit. The U.S. COurt of Appeals for the Ninth Circuit (Western U.S.) rejected a bid to postpone pollution control upgrades at three Arizona coal-fired power plants in brief order. Arizona and 4 utility cos asked the 9th Circuit for the delay while the court reviews the EPA’s rule. The EPA partially approved AZ’s air quality plan for the Cholla, Coronado and Apache generating stations. But the agency says the state didn’t do enough to control NOx emissions. The plants’ operators have five years to comply with set limits. Arizona Dept of Environmental Quality said AZ should be making decisions about what’s in the best interest of the state, not the EPA. http://bit.ly/13MqMPg

XTO Energy, a PA ExxonMobil Subsidiary Hit with Criminal Charges for Dumping Fracking Waste. XTO Energy Inc., a Pennsylvania-based subsidiary of ExxonMobil Corp., has been charged criminally with illegally discharging more than 50,000 gallons of toxic wastewater from a Marcellus Shale gas well site in Penn Township, Lycoming County, in 2010, the state attorney general’s office announced Tuesday. Attorney General Kathleen G. Kane said XTO is being charged with five counts under the Clean Streams Law and three counts under the Solid Waste Management Act. XTO is an ExxonMobil subsidiary, based in Fort Worth, Texas. http://bit.ly/1d5RmWa

Thursday, September 12, 2013

Fracking Disclosure Bill Passed By California State Assembly. The California State Assembly on Wednesday voted to approve SBl 4, a measure requiring energy companies to (1) provide public notice before starting hydraulic fracturing operations, and (2) disclose the chemicals used in the oil and gas extraction process to the state agency overseeing drilling activities. Opposition claimed that the Bill would “stop or hurt jobs and economic growth in California.” Proponents stated the Bill provided necessary protections for residents, while permitting fracking. The 48-17 vote brings California a step closer to regulating hydraulic fracturing after the California Senate in May voted 28-11 in favor of SB 4. http://lat.ms/1aF3rEs

9th Circuit Dismisses Water Diversion Suit On Standing. The Wild Fish Conservancy cannot challenge the diversion of water from a Columbia River Tributary to a federal fish hatchery, the 9th Circuit ruled on Wednesday. The group sought to stop the diversion in order to further the rehabilitation of the creek into a “high-altitude pristine refuge for native and migratory fish.” The Group sued under the Administrative Procedure Act and the Reclamation Act.  However, the Court found that the group lacked “prudential standing” because Washington state law did not give the group a right to seek the relief it wanted.   http://1.usa.gov/14J4fp6

Friday, September 13, 2013

EPA Sued by 4 States Over SO2 Designations.

On Wednesday, four Red states, ND, SD, TX and NV sued EPA in North Dakota federal court to force the EPA to designate areas of the country as either attaining or not attaining the 2010 SO2 NAAQS. The four states allege McCarthy failed to meet a three-year deadline to publish the designations, even after the plaintiffs made timely submissions of the levels of sulfur dioxide in the air in their states. http://bit.ly/1aHvEKK

Monday, August 19, 2013

IPCC Says It Is 95% Likely that humans cause climate change. 

According to leaked reports, the United Nation’s Intergovernmental Panel of Climate Change (IPCC), which has been collecting data since 1988, will state that it is at least 95% likely that humans are the main cause of climate change largely from burning fossil fuels.  And the numbers are growing: in 2007 the certainty was 90% and in 2001 it was 66%. The official report will be released in September. http://bit.ly/1bMA6EY

DOJ Sues Dallas-based Luminant, Alleges Coal Burning Power Plants Did Not Have Permits.

On Friday, August 16, 2013, the U.S. DOJ filed suit against Luminant, a large Dallas-based power generator.  The suit alleges that 2 coal-fired power plants were changed without the right permits, according to the Dallas Morning News. Although the suit is under seal the DMN based its story on previous EPA violation notices. Luminant, for its part, says the allegations are “wholly without merit.” http://dallasne.ws/15QGx3T

Tuesday, August 20, 2013

Energy Firms, Including Chevron, Sued in Louisiana Federal Court Over Oilfield Waste Disposal.

A lawsuit, originally filed in Louisiana state court by a group of Louisiana landowners alleging that their property was contaminated by Chevron USA and several other energy companies’ improper disposal of hazardous oilfield wastes was removed to federal court on Friday, August 16, 2013. The Plaintiffs, who own a combined 1,475 acres in Plaquemines Parish, claim that the defendants’ improper waste disposal practices breached a variety of leases and other land use contracts with the plaintiffs and seek relief under Louisiana’s “Act 312,” for environmental remediation. http://bit.ly/18HEJy1

Wednesday, August 21, 2013

3rd Circuit Holds That State Tort Claims Not Pre-Empted by Federal Clean Air Act.

A group of residents living near a power plant, filed against the owner based on the state tort actions of nuisance, negligence and trespass.  GenOn argued that those claims were pre-empted by the Clean Air Act under which it had an operating permit. The Court held that because of the savings clause in the Clean Air Act, the laws of the state from which the pollution was emitted were not pre-empted. http://bit.ly/1arAwm8

DC Circuit upholds EPA’s authority to set air emission standards for sewage sludge incinerators.

U.S. Court of Appeals for the DC Circuit holds that EPA has the authority to choose between section 129 of the Clean Air Act, which covers solid waste incinerators and 112, which covers hazardous air pollutants. Since 129 specifically addresses emissions from solid waste incinerators and 112 would only cover major sources of pollution, the “stringency of regulation” can also differ.  NACWA was successful in challenging how EPA estimated the emission levels of its best performing units, which the agency uses to set “maximum achievable control technologies” (MACT). The court agreed that “EPA has not adequately established that its estimations are reasonable,” and sent the rule back to the agency for further review, but kept the current standards in place. http://bit.ly/19Jh7hb

Thursday, August 22, 2013

3rd Circuit Decides EPA’s Attempt To Get Homer Generating Plant to Comply with PSD Requirements Is Too Late.

EPA and several States attempted to force the prior owners of the Homer City Generating Station to comply with Prevention of Significant Deterioration (PSD) requirements more than 10 years after the owners had modified the plant.  The prior owners had admittedly failed to obtain both a preconstruction permit and to install certain pollution-control technology before making changes to the plant. Neither EPA nor the states prosecuted the owners at that time.  The 3rd Circuit in upholding the dismissal of EPA’s claims said that such a reading would “require us to distort plain statutory text to shore up what the EPA views as an incomplete remedial scheme.” http://bit.ly/14mhSbN

Friday, August 23, 2013

AK Steel Agrees to $1.65 Million Civil Penalty to Resolve Clean Air Act Violations.

AK Steel’s coke plant in Ashland, KY was alleged to have violated the plant’s Title V permit and the KY State Implementation Plan.  Although the facility is now closed, the settlement “holds AK Steel accountable for years of violations . . . as a result of this agree, state projects to reduce particulate matter emissions at the Ashland West Works will continue to improve air quality for area ressidents for many years to come.” http://1.usa.gov/16Di5qF

OK Attorney General Says He Will Seek En Banc Hearing on EPA Haze Rules Ruling.

In July, the 10th Circuit ruled that EPA has the authority to implement its own plan to limit sulfur dioxide emissions as part of the regional haze rule.  Oklahoma Gas & Electric has sued the EPA alleging that the EPA rule more stringent than the state’s proposed rule and that implementing those rules would usurp state authority.  OK Attorney General Scott Pruitt stated that he will seek an En Banc hearing of the three judge panel’s ruling. http://bit.ly/13WyDqc.  En Banc hearings are rarely granted, but the split (2-1) decision of the 3-judge panel makes another review more likely.

Top Environmental Law and Climate Change Law stories that we are following for today, Thursday, August 15, 2013:

Expect Obama to Make Moves on Climate Change

After what environmentalists have called a lackluster first term on the environment, there growing indications that the Obama Administration is poised to focus on climate and sustainable energy in his second term. EPA will be tasked with reducing carbon emissions. DOE will be in charge of efficiency standards for buildings and commercial products. And at Interior, they are expanding offshore wind energy program. This change has not gone unnoticed by opponents to these programs, particularly elected officials from coal-producing states. http://bit.ly/14NSKx9

2nd Circuit Will Not Let the State of Vermont Close Vermont Yankee Nuclear Plant

The U.S. Court of Appeals for the 2nd Circuit issued its decision that blocked the State of Vermont’s attempts to shut down Entergy Corp.’s Vermont Yankee nuclear power plant. The opinion stated that state laws giving legislators authority over the renewal of the plant’s operations permit were pre-empted by federal Atomic Energy Act. http://1.usa.gov/13CXPBX

D.C. District Court Denies EPA’s Summary Judgment in FOIA Case

The U.S. District Court for the District of Columbia denied the EPA’s Motion for Summary Judgment in its FOIA battle with Landmark Legal Foundation.  Landmark Legal Foundation, a conservative public interest law firm has been seeking documents from EPA under FOIA in Landmark’s attempt to show that the Obama Administration attempted to delay “controversial” environmental regulations until after the 2012 Presidential Elections.  EPA has consistently denied the allegation.  At issue here, however, was whether EPA produced all of the relevant documents pursuant to Landmark’s FOIA request.  The Court found that there was sufficient evidence to show that the EPA had conducted an inadequate search for relevant documents and thus, there were material issues of fact precluding summary judgment.  In addition, the Court ruled that Landmark shall have limited discovery regarding whether the EPA Administrator, Deputy Administrator and/or Chief of Staff utilized personal email accounts to conduct official business and whether EPA initially excluded those same officials from Landmark’s FOIA requests. http://1.usa.gov/17t0CA9

Monday, March 28, 2011

RULES

  • Approval and Promulgation of Gila River Indian Community’s Tribal Implementation Plan [EPA-R09-OAR-2007-0296, FRL-9259-9].  SUMMARY: EPA is approving a Tribal implementation plan (TIP) submitted by the Gila River Indian Community (GRIC or Tribe) on February 21, 2007, as supplemented and amended on July 11, 2007, June 22, 2009, and July 17, 2010, and as described in our August 12, 2010 proposal. The TIP includes general and emergency authorities, ambient air quality standards, permitting requirements for minor sources of air pollution, enforcement authorities, procedures for administrative appeals and judicial review in Tribal court, requirements for area sources of fugitive dust and fugitive particulate matter, general prohibitory rules, and source category-specific emission limitations and standards. These provisions establish a base TIP that is suitable for the GRIC’s reservation and regulatory capacities and that meets all applicable minimum requirements of the Clean Air Act (CAA or Act) and EPA regulations. The effect of this action is to make the approved portions of the GRIC TIP federally enforceable under the CAA and to further protect air quality within the exterior boundaries of the GRIC reservation.
  • Protocol Gas Verification Program and Minimum Competency Requirements for Air Emission Testing; Final Rule [EPA-HQ-OAR-2009-0837; FRL-9280-9]. SUMMARY: EPA is finalizing rule revisions that modify existing requirements for sources affected by the federally administered emission trading programs including the NOX Budget Trading Program, the Acid Rain Program, and the Clean Air Interstate Rule.    EPA is amending its Protocol Gas Verification Program (PGVP) and the minimum competency requirements for air emission testing (formerly air emission testing body requirements) to improve the accuracy of emissions data. EPA is also amending other sections of the Acid Rain Program continuous emission monitoring system regulations by adding and clarifying certain recordkeeping and reporting requirements, removing the provisions pertaining to mercury monitoring and reporting, removing certain requirements associated with a class-approved alternative monitoring system, disallowing the use of a particular quality assurance option in EPA Reference Method 7E, adding two incorporation by references that were inadvertently left out of the January 24, 2008 final rule, adding two new definitions, revising certain compliance dates, and clarifying the language and applicability of certain provisions.

NOTICES

  • Draft Integrated Science Assessment for Ozone and Related Photochemical Oxidants [FRL-9286-7; Docket ID No. EPA-HQ-ORD-2011-0050]. SUMMARY: EPA is announcing an extension of the public comment period for the first external review draft of a document titled, “First External Review Draft Integrated Science Assessment for Ozone and Related Photochemical Oxidants” (EPA/600/R-10/076A). The original Federal Register notice announcing the public comment period was published on February 28, 2011 (76 FR 10893). This assessment document was developed by the National Center for Environmental Assessment (NCEA) within EPA’s Office of Research and Development as part of the review of the national ambient air quality standards (NAAQS) for ozone.
  • Science Advisory Board Staff Office; Notification of a Public Meeting of the Advisory Council on Clean Air Compliance Analysis Augmented for Review of the Report to Congress on Black Carbon. [FRL- 9287-2]. SUMMARY: The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public face-to-face meeting of the Black Carbon Review Panel. DATES: The meeting will be held on April 18, 2011 from 9 a.m. to 5 p.m. and April 19, 2011 from 8:30 a.m. to 2:30 p.m. (Eastern Time). ADDRESSES: The Panel meeting will be held at the Omni Shoreham, 2500 Calvert Street NW., Washington, DC 20008.
  • Human Studies Review Board (HSRB); Notification of a Public Meeting [EPA-HQ-ORD-2011-0124; FRL-9287-1].  SUMMARY: The U.S. Environmental Protection Agency (EPA) Office of the Science Advisor (OSA) announces a public meeting of the HSRB to advise the Agency on EPA’s scientific and ethical reviews of research with human subjects. DATES: This public meeting will be held on April 13-14, 2011, from approximately 8:30 a.m. to approximately 5 p.m. Eastern Time.
Posted by: Steven M. Taber | February 6, 2011

AB32 Must Undergo More CEQA Review Judge Rules

With climate change legislation held up in U.S. Congress, the eyes of the nation have focused on the states, particularly on California, which passed a landmark climate change law, the Global Warming Solutions Act of 2006, known as AB32.  Former Governor Schwarzenegger called the law one of his greatest achievement of his administration. However, in a tentative ruling issued last month, San Francisco Superior Court Judge Ernest Goldsmith ruled that state air quality regulators must conduct further analysis before fully implementing AB32.

The lawsuit, brought by The Center on Race, Poverty and the Environment alleged that the California Air Resources Board (CARB) had violated state environmental law by failing to properly study alternatives to plans it has adopted.  Judge Goldsmith’s opinion states that the CARB approved the larger plan to implement AB32 prior to completing the required environmental review under the California Environmental Quality Act (CEQA).

Goldsmith found that CARB “seeks to create a fait accompli by premature establishment of a cap-and-trade program before alternative [sic] can be exposed to public comment and properly evaluated by the ARB itself.”

Although the decision, should Judge Goldsmith make it his final ruling, will delay implementation of AB32, the lawsuit was brought not by those opposed to AB32, but by parties who support AB32.  Indeed, the plaintiffs have backed AB32 and have helped defend it against Proposition 23, last November.

While many right-wing, anti-environment pundits have proclaimed this ruling as a victory for climate deniers (see e.g., this blog post), a careful reading of the opinion indicates that this provides a opening for a much broader reading of AB32.  Cap-and-trade, as has been pointed out in this blog previously, was a compromise developed to bring market mechanisms to acid rain regulations.  It was meant to replace “command and control” regulations.  Here, the plaintiffs may seek to move away from cap-and-trade and other market based mechanisms and back to a more command-and-control type system.

In any case, should the ruling become permanent, it will be interesting to see what the CARB does:  will it appeal?  Will it seek a stay so that it can proceed with implementation pending appeal? Or will it simply throw in the towel and go back to the CEQA drawing board?

Friday, October 22, 2010

NOTICES

  • Environmental Impact Statements; Notice of Availability. [ER–FRL–8993–3].  Responsible Agency: Office of  Federal Activities, General Information (202) 564–1399 or http://www.epa.gov/ compliance/nepa/. Weekly  receipt of Environmental Impact Statements Filed 10/11/2010 Through 10/15/2010 Pursuant to 40 CFR  1506.9.
  • Notice of Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities. [EPA–HQ–OPP–2010–0012; FRL–8851–1]. SUMMARY: This notice announces the Agency’s  receipt of several initial filings of pesticide petitions proposing the establishment or modification of regulations  for residues of pesticide chemicals in or on various commodities. DATES: Comments must be received on or  before November 22, 2010.
  • Proposed Administrative Settlement Agreement Under Section 122 of the Comprehensive  Environmental Response, Compensation, and Liability Act for the Crown Vantage Landfill Superfund Site  Located in Alexandria Township, Hunterdon County, NJ. [FRL–9216–7].   SUMMARY: The United States Environmental Protection  Agency (‘‘EPA’’) is proposing to enter into an administrative settlement agreement (‘‘Settlement Agreement’’)  with Georgia- Pacific Consumer Products, LP and International Paper Company (collectively ‘‘Settling Parties’’)  pursuant to Section 122 of the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’), 42 U.S.C. 9622. The Settlement Agreement provides for Settling Parties’ payment of certain response costs incurred by EPA at the Crown Vantage Landfill Superfund Site located in Alexandria Township, Hunterdon County, New Jersey. In accordance with Section 122(i) of CERCLA, 42 U.S.C. 9622(i), this notice is  being published to inform the public of the proposed Settlement Agreement and of the opportunity to comment.  or thirty (30) days following the date of publication of this notice, EPA will receive written comments  relating to the  proposed Settlement Agreement. EPA will consider all comments received and may  modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate that the proposed settlement is inappropriate, improper or inadequate. EPA’s response to any  comments received will be available for public inspection at EPA Region 2, 290 Broadway, 17th floor, New  York, New York 10007–1866. DATES: Comments must be provided by November 22, 2010.

Thursday, October 21, 2010

Rules

  • Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Determination of Attainment of the 1997 Ozone Standard for the Providence, RI Area. 40 CFR Part 52 [EPA–R01–OAR–2010–0459; A–1–FRL– 9215–9] . SUMMARY: The EPA is determining that the Providence (All of Rhode Island) moderate 1997 8-hour  ozone nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for  ozone. This determination is based upon complete, quality-assured, certified ambient air monitoring data that  show the area has monitored attainment of the 1997 8-hour ozone NAAQS for the 2007–2009 monitoring  period. Preliminary data available to date for the 2010 ozone season is consistent with continued attainment.  Under the provisions of EPA’s ozone implementation rule, the requirements for this area to submit an  attainment demonstration, a reasonable further progress plan, contingency measures, and other planning State Implementation Plans related to attainment of the 1997 8-hour ozone NAAQS shall be suspended for so long as the area continues to attain the 1997 ozone NAAQS. In addition, EPA is determining that this area has attained the 1997 ozone NAAQS as of June 15, 2010, its applicable attainment date.
  • Approval and Promulgation of Implementation  Plans; Illinois; Voluntary Nitrogen Oxides Controls. 40 CFR Part 52 [EPA–R05–OAR–2007–1096; FRL–9215–8] . SUMMARY: On May 1, 2001, the Illinois Environmental  Protection Agency (Illinois EPA) submitted a request for EPA approval of a State Implementation Plan (SIP)  revision for regulations governing Nitrogen Oxides (NOX) emission allowances granted for implementation of  voluntary control of NOX emissions from sources other than those covered by other Illinois NOX emission  control regulations. On March 4, 2008, EPA proposed to disapprove the requested SIP revision. This final rule  completes the disapproval of the requested SIP revision.
  • Approval and Promulgation of Implementation  Plans; State of Missouri. 40 CFR Part 52 [EPA–R07–OAR–2010–0415; FRL–9210–3] . SUMMARY: EPA is approving a revision to a State Implementation Plan (SIP) submitted by the State of Missouri. The purpose of this revision is to update the Springfield City Code and is part  of ongoing SIP maintenance to assure that outdated local codes and ordinances do not remain in the SIP. The  revision reflects updates to the Missouri statewide rules, and will ensure consistency between the applicable local agency rules and the Federally approved rules.

Proposed Rules

  • Approval and Promulgation of Implementation  Plans; State of Missouri. 40 CFR Part 52 [EPA–R07–OAR–2010–0415; FRL–9210–2] . SUMMARY: EPA is proposing to approve a revision to a State Implementation Plan (SIP) submitted by the state of Missouri. The purpose of this revision is to update the Springfield City Code  and is part of ongoing SIP maintenance to assure that outdated local codes and ordinances do not remain in the  SIP. The revision reflects updates to the Missouri statewide rules, and will ensure consistency between the applicable local agency rules and the Federally approved rules.
  • Notice of Data Availability on Coal Combustion Residual Surface Impoundments. 40 CFR Parts 257, 261, 264, 265, 268, 271, and 302 [EPA–HQ–RCRA–2009–0640; FRL–9216–3] RIN  2050–AE81.  SUMMARY: This  document announces the availability of new information and data posted in the docket for EPA’s proposed rulemaking (75 FR 51434, August 20, 2010) on the Disposal of Coal Combustion Residuals from Electric Utilities. The Agency is seeking public comment on how, if at all, this additional information should affect the Agency’s decisions as it develops a final rule. The information has been posted on EPA’s Web site, and is now  currently available in the docket; it consists of responses to Information Collection Requests that EPA sent to  electric utilities on their coal combustion residual surface impoundments as well as reports and materials  related to the site assessments EPA has conducted on a subset of these impoundments.
  • National Emission Standards for Hazardous Air Pollutant Emissions: Hard and Decorative Chromium Electroplating and Chromium Anodizing  Tanks; Group I Polymers and Resins; Marine Tank Vessel Loading Operations; Pharmaceuticals Production; The  Printing and Publishing Industry; and Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration  Plants. 40 CFR Part 63 [EPA–HQ–OAR–2010–0600; FRL–9203–7] RIN 2060–AO91. SUMMARY: This action proposes how EPA will address the residual risk and technology reviews conducted for two national emission standards for hazardous air pollutants (NESHAP), and this action is a supplemental notice of proposed rulemaking for an October 2008 action that proposed how EPA would address the residual risk and technology reviews for four NESHAP. The six NESHAP include 16 source categories, 12 of which are the subject of residual risk and technology reviews in this package. This action  proposes to modify the existing emissions standards for eight source categories in three of the six NESHAP to  address certain emission sources not currently regulated under these standards. It also proposes for all six  NESHAP to address provisions related to emissions during periods of startup, shutdown, and malfunction. Finally, this action proposes changes to two of the six NESHAP to correct editorial errors, make clarifications, or address issues with implementation or determining compliance.   DATES: Comments. Comments must be
    received on or before December 6, 2010. Under the Paperwork Reduction Act, comments on the information  collection provisions are best assured of having full effect if the Office of Management and Budget (OMB) receives   copy of your comments on or before November 22, 2010. Public Hearing. We will hold a public hearing on November 5, 2010. Persons requesting to speak at the public hearing must contact EPA by  November 1, 2010.
  • National Priorities List, Proposed Rule No. 53. 40 CFR Part 300 [EPA–HQ–SFUND–2010–0634, EPA–HQ– SFUND–2010–0636, EPA–HQ–SFUND–2010– 0638, EPA–HQ–SFUND–2010–0639, EPA– HQ–SFUND–2010–0640, EPA–HQ–SFUND– 2010–0641, EPA–HQ– SFUND–2010–0643, EPA–HQ–SFUND–2010–0645, EPA–HQ– SFUND–2010–0646, EPA–HQ–SFUND–2010– 0647; FRL–9216–1] RIN 2050–AD75. SUMMARY: The Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’ or ‘‘the Act’’), as  amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (‘‘NCP’’) include a  list of national priorities among the known releases or threatened releases of hazardous substances,   pollutants, or contaminants throughout the United States. The National Priorities List (‘‘NPL’’) constitutes this  list. The NPL is intended primarily to guide the Environmental Protection Agency (‘‘EPA’’ or ‘‘the Agency’’) in  determining which sites warrant further investigation. These further investigations will allow EPA to assess the  nature and extent of public health and environmental risks associated with the site and to determine what  CERCLA financed remedial action(s), if any, may be appropriate. This rule proposes to add nine sites to the  General Superfund section of the NPL. This rule also withdraws one site from proposal to the General Superfund  section of the NPL. DATES: Comments regarding any of these  proposed listings must be submitted (postmarked)  n or before December 20, 2010.

Notices

  • Access in Litigation to Confidential Business Information. [FRL–9216–6]. SUMMARY: The EPA has authorized the United States Department of Justice (‘‘DOJ’’) to disclose, in response to discovery requests received in the litigation styled, Tronox Incorporated, et al., v. Anadarko Petroleum Corp., et al., Adv. Proc. No. 09–01198  (ALG), pending in the United States Bankruptcy Court for the Southern District of New York (the ‘‘Litigation’’), information which has been submitted to EPA by its contractors that is claimed to be, or has been determined to  e, confidential business information (‘‘CBI’’). The EPA is providing notice of past disclosure and of ongoing  and contemplated future disclosure. Interested persons may submit comments on this Notice to the address noted below. DATES: Access by the DOJ and/or the parties to the Litigation to material discussed in this Notice  that has been either claimed or determined to be CBI is ongoing, and is expected to continue in the future during  he pendency of the Litigation. The EPA will accept comments on this Notice through October 30, 2010.
  • Science Advisory Board Staff Office Request for Nominations of Experts for the Consultation on  Revisions to the Multi-Agency Radiation Survey and Site Investigation Manual. [FRL–9216–4] .  SUMMARY: The EPA Science Advisory Board (SAB) Staff Office is requesting public nominations for technical experts to augment the SAB’s  Radiation Advisory Committee (RAC) to conduct a consultation on revision to the Multi- Agency Radiation  Survey and Site Investigation Manual. DATES: Nominations should be submitted by November 12, 2010 per instructions below.

Wednesday, October 20, 2010

Rules

  • Approval and Promulgation of Air Quality  Implementation Plans; Delaware; Limiting Emissions of Volatile Organic Compounds From Consumer Products. 40 CFR Part 52 [EPA–R03–OAR–2010–0124; FRL–9211–5]. SUMMARY: EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Delaware.  The revision amends existing Section 2.0— Consumer Products to Delaware’s Regulation 1141 (formerly SIP Regulation No. 41)—Limiting Emissions of Volatile Organic Compounds from Consumer and Commercial Products. This action is being taken under the Clean Air Act (CAA). DATES: Effective Date: This final rule is effective on November 19, 2010.
  • Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Texas; Beaumont/Port Arthur Ozone Nonattainment Area: Redesignation to Attainment for the 1997 8-Hour Ozone Standard and Determination of Attainment for the 1-Hour Ozone Standard; Clarification of EPA’s Approval of the El Paso Section 110(a)(1) Maintenance Plan for the 1997 8-Hour Ozone Standard. 40 CFR Parts 52 and 81 [EPA–R06–OAR–2008–0932; FRL–9214–9]. SUMMARY: EPA is taking final action to approve a  request from the State of Texas to redesignate the Beaumont/Port Arthur (BPA) Texas ozone nonattainment  area to attainment of the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). EPA is making a  final determination that the BPA nonattainment area has attained the 1997 8-hour ozone NAAQS, based on  complete, quality-assured, and certified ambient air quality monitoring data for 2006–2008. Preliminary data available for 2009 and 2010 show that the area continues to attain the 1997 8- hour ozone NAAQS. In finalizing  its approval of the redesignation request, EPA also approves, as a revision to the BPA State Implementation Plan  SIP), a 1997 8-hour ozone maintenance plan that includes a 2021 Motor Vehicle Emissions Budget (MVEB).  PA is also approving the BPA area’s 2002 base year emissions inventory as part of the BPA SIP. EPA  also is approving as part of the BPA SIP, the Texas Clean-Fuel Vehicle (CFV) Program Equivalency Demonstration. EPA finds that with final approval of these revisions, the area has a fully approved SIP that  meets  all of the 1997 8-hour ozone  requirements and 1-hour ozone antibacksliding requirements under section 110 and Part D of the Federal Clean Air Act (CAA or Act) that are applicable for purposes of redesignation. EPA  is also approving a determination that the BPA area is meeting the 1-hour ozone standard based upon three  years of complete, quality-assured, and certified ambient air quality monitoring data for 2006–2008.  Preliminary data available for 2009 and 2010 show that the area continues to attain the standard. Additionally,  EPA is taking final action to approve the post-1996 Rate of Progress (ROP) plan’s contingency measures, the  substitute control measures for the failure-to-attain contingency measures, and the removal from the Texas SIP  of a 1-hour ozone failure-to-attain contingency measure, a volatile organic compound (VOC) SIP rule for marine  vessel loading, as meeting the requirements of section 110(l) and part D of the Act. EPA also is providing  clarification of an earlier separate EPA rulemaking action approving the Section 110(a)(1) Maintenance Plan for  the 1997 8-hour ozone standard for the El Paso 1997 8- hour attainment area. DATES: Effective Date: This rule  will be effective November 19, 2010.
  • Prevention of Significant  Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact  Levels (SILs) and Significant Monitoring Concentration (SMC). 40 CFR Parts 51 and 52 [EPA–HQ–OAR–2006–0605; FRL–9210–9] RIN 2060–AO24. SUMMARY: The EPA is amending the
    requirements for particulate matter less than 2.5 micrometers (PM2.5) under the Prevention of Significant  Deterioration (PSD) program by adding maximum allowable increases in ambient pollutant concentrations  (‘‘increments’’) and two screening tools, known as the Significant Impact Levels (SILs) and a Significant  Monitoring Concentration (SMC) for PM2.5. The SILs for PM2.5 are also being added to two other New Source  Review (NSR) rules that regulate the construction and modification of any major stationary source locating in an  attainment or unclassifiable area,  where the source’s emissions may cause or contribute to a violation of the national ambient air quality standards (NAAQS). DATES: This final rule is effective on December 20, 2010.

Notices

Tuesday, October 19, 2010

Final Rules

  • Approval of Implementation Plans of Wisconsin: Nitrogen Oxides Reasonably Available Control Technology. 40 CFR Part 52 [EPA–R05–OAR–2007–0587; EPA–R05–OAR–2009–0732; FRL–9205–8] .  SUMMARY: EPA is approving revisions to the Wisconsin State Implementation Plan (SIP) submitted on June 12, 2007 and on  September 14, 2009. These revisions incorporate provisions related to the implementation of nitrogen oxides  (NOX) Reasonably Available Control Technology (RACT) for major sources in the Milwaukee-Racine and Sheboygan County ozone nonattainment areas. EPA is approving SIP revisions that address the NOX RACT requirements found in the Clean Air Act (CAA). EPA is also approving other miscellaneous rule changes that  affect NOX regulations that were previously adopted and approved into the SIP.
  • Determination of Attainment for PM10: Eagle River PM10 Nonattainment Area, AK. 40 CFR Part 81 [Docket EPA–R10–OAR–2010–0433; FRL–9214–7] . SUMMARY: EPA has determined that the Eagle River  nonattainment area in Alaska attained the National Ambient Air Quality Standard (NAAQS) for particulate  matter with an aerodynamic diameter of less than or equal to a nominal ten micrometers (PM10) as of December 31, 1994.

Proposed Rules

  • Approval and Promulgation of Air Quality  Implementation Plans; Texas; Revisions to Rules and Regulations for Control of Air Pollution; Permitting of Grandfathered and Electing Electric Generating Facilities. 40 CFR Part 52 [EPA–R06–OAR–2005–TX–0031; FRL–9215–1] . SUMMARY: The EPA is proposing to partially approve and  partially disapprove revisions of the Texas State Implementation Plan (SIP) submitted by the Texas Commission  on Environmental Quality (TCEQ, or Commission) on January 3, 2000, and July 31, 2002, as  supplemented on August 5, 2009. These revisions are to regulations of the TCEQ which relate to application and  permitting procedures for grandfathered electric generating facilities (EGFs). The revisions address a mandate  by the Texas Legislature under Senate Bill 7 to achieve nitrogen oxide (NOX), sulfur dioxide (SO2) and particulate matter (PM) emission reductions from grandfathered EGFs. These emissions reductions will contribute to achieving attainment and help ensure attainment and continued maintenance of the National  Ambient Air Quality Standards (NAAQS) for ozone, sulfur dioxide, and particulate matter in the State of Texas.  As a result of these mandated emissions reductions, in accordance with section 110(l) of the Federal Clean Air  Act, as amended (the Act, or CAA), partial approval of these revisions will not interfere with attainment of the  NAAQS, reasonable further progress, or any other applicable requirement of the Act. EPA is proposing that the  revisions, but for a severable provision, meet section 110, part C, and part D of the Federal Clean Air Act (the  Act or CAA) and EPA’s regulations. Therefore, EPA is proposing to approve the revisions but for a severable  portion that allows collateral emissions increases of carbon monoxide (CO) created by the imposition of technology controls to be permitted under the State’s Standard Permit (SP) for Pollution Control Projects (PCP). EPA is proposing to disapprove this severable portion concerning the issuance of a PCP SP for the CO collateral  emissions increases. EPA is taking comments on this proposal and plans to follow with a final action.
  • Determination of Attainment for PM10: Eagle River PM10 Nonattainment Area, Alaska. 40 CFR Part 81 [Docket: EPA–R10–OAR–2010–0433; FRL– 9214–8] . SUMMARY: EPA proposed to determine that the Eagle River  nonattainment area in Alaska attained the National Ambient Air Quality Standard for particulate matter with an  aerodynamic diameter of less than or equal to a nominal ten micrometers (PM10) as of December 31, 1994.
  • Source Specific Federal Implementation Plan for  Implementing Best Available Retrofit Technology for Four Corners Power Plant: Navajo Nation. 40 CFR Part 49 [EPA–R09–OAR–2010–0683; FRL–9213–7] . SUMMARY: The Environmental Protection Agency (EPA) is proposing to promulgate a source specific Federal Implementation Plan (FIP) requiring the Four Corners Power Plant (FCPP), located on the Navajo Nation, to  achieve emissions reductions required by the Clean Air Act’s Best Available Retrofit Technology (BART)  provision. In this action, EPA is proposing to require FCPP to reduce emissions of oxides of nitrogen (NOX) and  particulate matter (PM). These pollutants are significant contributors to visibility impairment in the numerous  mandatory Class I Federal areas surrounding FCPP. For NOX emissions, EPA is proposing to require FCPP to  meet an emission limit of 0.11 lb/MMBtu, representing an 80% reduction from current NOX emissions. This NOX  imit is achievable by installing and operating Selective Catalytic Reduction (SCR) technology on Units 1–5.  For PM, EPA is proposing to require FCPP to meet an emission limit of 0.012 lb/MMBtu for Units 1–3 and 0.015  lb/MMBtu for Units 4 and 5. These emissions limits are achievable by installing and operating any of several  equivalent controls on Units 1–3, and through proper operation of the existing baghouse on Units 4 and 5. EPA  is proposing to require FCPP to meet a 10% opacity limit on Units 1– 5 to ensure proper operation of the PM controls. EPA is requesting comment on whether APS can satisfy BART on Units 1–3 by operating the existing  venturi scrubbers to meet an emission limit of 0.03 lb/MMBtu with a 20% opacity limit. EPA is also proposing to  require FCPP to comply with a 20% opacity  limit on its coal and material handling operations.

Notices

  • Notice of a Regional Project Waiver of Section 1605 (Buy American) of the American Recovery  and Reinvestment Act of 2009 (ARRA) to the City of Lowell, MA. [FRL–9214–6] .  SUMMARY: The EPA is hereby granting a waiver of the Buy American requirements of ARRA Section 1605 under the authority of Section 1605(b)(2) [manufactured goods are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality] to the City of Lowell, Massachusetts (‘‘City’’) for the purchase of a foreign manufactured heat recovery ventilator for the Lowell Wastewater Treatment Facility and Warren Street  Combined Sewer Overflow (CSO) Diversion Station Improvements Project. This is a project specific waiver and  only applies to the use of the specified product for the ARRA project being proposed. Any other ARRA recipient  that wishes to use the same product must apply for a separate waiver based on project specific circumstances.  Based upon information submitted by the City and its consulting engineer, it has been determined that there are  currently no domestically manufactured heat recovery ventilators available to meet its proposed project and  performance specifications. The Regional Administrator is making this determination based on the review and recommendations of the Municipal Assistance Unit. The Assistant Administrator of the Office of Administration  and Resources Management has concurred on this decision to make an exception to Section 1605 of ARRA. This  action permits the purchase of a foreign manufactured heat recovery ventilator by the City, as specified in its  July 14, 2010 request.

Environmental Law & Climate Change Law Newsletter

October 18, 2010, Volume 2, Number 31

The following is a summary review of articles from all over the nation concerning environmental law settlements, decisions, regulatory actions and lawsuits filed during the past week.  These were all first posted, in abbreviated form, on http://twitter.com/smtaber.  This Newsletter also appears as a post on our website Taber Law Group every Monday. Archives can be found there and on our blog, The Environmental Law and Climate Change Law Blog.  For more information about the Taber Law Group, please visit our website at taberlaw.com.

SETTLEMENTS

ConocoPhillips Company and Sasol North America Agree to Reimburse Costs for Calcasieu Estuary, Bayou Verdine Cleanup. – EPA News Release, October 13, 2010

The Department of Justice, the Environmental Protection Agency and the United States Attorney’s Office announced today, the settlement of claims against ConocoPhillips Company and Sasol North America Inc. to resolve their liability to EPA under CERCLA for contamination in the Calcasieu Estuary of Louisiana. The Justice Department also announced a settlement of claims for natural resource damages against ConocoPhillips Company and Sasol North America Inc. related to contamination in the Estuary. Under the terms of a consent decree lodged in the federal district court for the Western District of Louisiana together with a filed complaint, ConocoPhillips and Sasol North America will reimburse the EPA Superfund more than $4.5 million and will complete a removal action valued at about $10 million to clean up Bayou Verdine within the Calcasieu Estuary. The Louisiana Department of Environmental Quality (LDEQ) is also a plaintiff in the case and party to the settlement.

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