environotes

U.S. EPA Pushes Back Effective Date of SPCC Rule Changes
U.S. EPA Proposes Changes to Condensable Particulate Matter Test Methods
U.S. Appeals Court Strikes Down PM 2.5 Standards
U.S. EPA Proposes Performance Specifications and Quality Assurance Requirements for Continuous Parameter Monitoring Systems at Stationary Sources
Environmental Appeals Board Rejects Sierra Club's PSD Increment Analysis Argument
IDEM Office of Land Quality to Adopt Drilling Procedures and Monitoring Well Construction Guidelines

U.S. EPA Pushes Back Effective Date of SPCC Rule Changes
By Andy Bowman, Chair, Environmental Law Department, Bingham McHale LLP

On March 30, 2009, the U.S. EPA announced that the April 4, 2009 effective date of the December 5, 2008 amendments to the Spill Prevention, Control and Countermeasures (“SPCC”) regulations has been extended. The amendments will now be effective on January 14, 2010. In addition, the U.S. EPA is requesting comments on whether a further extension of the effective date should be granted. The deadline for submitting comments will be announced when notice of the extension to January 14, 2010 is published in the Federal Register.

The SPCC regulations apply to facilities that have above-ground oil storage capacity of greater than 1,320 gallons or underground storage of greater than 42,000 gallons. The rule requires these facilities to prepare and implement SPCC Plans. The 2008 amendments to the rule exempt certain facilities from the SPCC requirements and provide additional flexibility for certain facilities when preparing their SPCC plans. Specifically, the amendments exempt the following containers from the SPCC requirements:

• Hot-mix asphalt and hot-mix asphalt containers;
• Residential heating oil containers used solely at single-family residences;
• Pesticide application equipment and related mix containers;
• Underground oil storage tanks that supply emergency diesel generators at nuclear power generation facilities;
• Intra-facility gathering lines subject to the pipeline regulations of the U.S. Department of Transportation and
• Produced water containers that do not contain oil in harmful quantities (as certified by a professional engineer).

The 2008 amendments also provide a new provision that allows certain smaller facilities to prepare a less burdensome “SPCC Plan template” rather than a full SPCC plan. Under the 2006 amendments to the rule, the owners and operators of “qualified facilities,” facilities with less than 10,000 gallons of above-ground storage, were given the option of self-certifying their SPCC plans rather than requiring that the plans be reviewed and certified by a professional engineer. The 2008 amendment splits the “qualified facility” definition into two categories – Tier I and Tier II qualified facilities. Tier 1 qualified facilities are facilities that have no individual above-ground storage containers with a capacity greater than 5,000 gallons. These Tier I facilities may use the streamlined “SPCC Plan template” rather than preparing a full SPCC plan. The template can be found in Appendix G of the revised rule.

Other changes to the rule include:

• A revised definition of the term “facility” to clarify the facilities boundaries;
• A new definition of the term “loading/unloading rack” to clarify when these units are subject to the rule;
• Amendments to the general secondary containment requirement;
• Exemption for non-transportation-related tank trucks from sized secondary containment requirements;
• Amendments to the security measure provisions to allow facilities to tailor the security measures to the specific characteristics of the facility; and
• Amendments to the integrity testing requirements for bulk storage containers to allow greater flexibility in the use of industry standards at all facilities.

More information on the SPCC Rules can be found at: www.epa.gov/emergencies/content/spcc.

U.S. EPA Proposes Changes to Condensable Particulate Matter Test Methods
By Andy Bowman, Chair, Environmental Law Department, Bingham McHale LLP

On March 25, 2009, the U.S. EPA published notice of a proposed rule to modify the methods for measurement of condensable particulate matter (CPM) during stack testing. 74 Federal Register 12969 (March 25, 2009). CPM is material that is in vapor stage at stack conditions but which condenses upon cooling and dilution in the ambient air to form particulate matter (PM) immediately after discharge from the stack. U.S. EPA is proposing to change Method 201A to include the capability of measuring fine particulate matter (PM2.5) and to modify Method 202 to provide for more accurate measurement of the condensable component of PM2.5 and course PM (PM10). A particle-sizing cyclone will be added to the sampling train under Method 201A. Method 202 will be changed to make certain currently optional procedures mandatory. U.S. EPA believes that the revised Method 202 will reduce the formation of sulfuric acid artifacts by at least an additional ninety percent, allow greater consistency among testing contractors, improve precision of the method and provide for more accurate quantification of direct PM emissions.

During the promulgation of the Clean Air Fine Particle Implementation Rule (72 Federal Register 20586) in 2007, U.S. EPA acknowledged problems with the current Method 202. U.S. EPA found that some stack testing contractors were inappropriately applying sampling hardware and optional analytic procedures which could lead to inaccurate CPM measurements. In addition U.S. EPA determined that SO2 could be absorbed during use of Method 202 resulting in sulfuric acid artifacts being erroneously counted as CPM. As a result, U.S. EPA established a transitional period for States to develop emission limits for condensable PM2.5 which ends January 1, 2011. After January 1, 2011 States are required to consider inclusion of CPM emissions in new or revised emission limits. U.S. EPA allows each State to determine whether or not and at what time it is appropriate to revise existing facility emission limits or operating permits to incorporate information from the revised CPM test method once it becomes final.

U.S. EPA believes that the use of the proposed changes to Method 202 will likely result in reduced levels of CPM emissions measured at a source compared to the existing method. However, there may be cases where the revised test method results in higher measurements of condensable particulate matter due to changes in the way sample water is evaporated.

Key changes to Method 202 include replacing the wet impingers with dry impingers and requiring the use of an out-of-stack low-temperature filter. A one-hour nitrogen purge of the impinger water is now required to remove SO2 before it can form sulfuric acid artifacts. In the event the revised test methods are finalized, sources will need to evaluate whether their operating permits will require modification.

U.S. EPA is taking comments on the proposed changes to the test methods through May 26, 2009. Comments can be submitted at www.regulations.gov under Docket ID No. EPA-HQ-OAR-2008-0348. U.S. EPA is also taking comments on whether the transition period should end earlier than January 1, 2011 for purposes of new source review.

U.S. Appeals Court Strikes Down PM2.5 Standards
By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

On February 24, 2009, the U.S. Court of Appeals for the D.C. Circuit remanded the PM2.5 standard that the U.S. EPA promulgated in 2006. The decision will likely lead to a stricter National Ambient Air Quality Standard (“NAAQS”) for fine particulate or PM2.5.

The Clean Air Act requires the U.S. EPA to promulgate NAAQS for certain criteria pollutants, including particulate matter (“PM”). The Act requires that the U.S. EPA establish two NAAQS for each pollutant – a “primary” standard that protects public health and a “secondary” standard which protects public welfare. In 1997 the U.S. EPA revised its PM standards and added a second set of standards for “fine particulates” known as PM2.5. The U.S. EPA established a daily limit (65 ug/m3) and annual limit (15 ug/m3) for this new indicator. In 2006, the daily limit was tightened to 35 ug/m3, but the U.S. EPA retained the annual limit at 15 ug/m3 despite urgings from its own scientific advisors to tighten the standard.

Several environmental groups and states challenged the 2006 rulemaking. The Court ruled that the EPA failed to adequately explain how the 15 ug/m3 annual limit was protective of public health as required by the Clean Air Act and remanded the limit back to the agency to support the limit with adequately reasoned decisionmaking.

By remanding, rather than vacating, the Court of Appeals has left the standard intact, for now, with instructions for the U.S. EPA to reconsider the standard. Given the administration change at U.S. EPA, it is likely this reconsideration will lead to a more stringent standard that will be consistent with the scientific advisors’ recommendations.

A revised standard may lead to more Indiana counties being designated as “nonattainment” for PM2.5 and leading to stricter permitting requirements for sources located in those counties.

U.S. EPA Proposes Performance Specifications and Quality Assurance Requirements for Continuous Parameter Monitoring Systems at Stationary Sources
by Jennifer K. Thompson, Environmental Law Department, Bingham McHale LLP

On October 9, 2008 the United States Environmental Protection Agency (“U.S. EPA”) proposed Performance Specification 17 (“PS-17”) and Procedure 4 (“P-4”) for continuous parameter monitoring systems (“CPMS”) at stationary sources. The proposed performance specifications and quality assurance procedures would apply to facilities that are required to install CPMS (used to monitor temperature, pressure, flow rate, pH and conductivity) pursuant to 40 C.F.R. Parts 60, 61, and 63, excluding those facilities that are not subject to 40 C.F.R. § 63.8(a)(2). Table 1 at 73 Fed. Reg. 59957–59959 lists the applicable source categories to which the proposed PS-17 and P-4 would apply. U.S. EPA’s notice states that PS-17 and P-4 are necessary to ensure that CPMS are properly selected, installed, and placed into operation and concludes that the proposed rule is not a significant regulatory action.

Generally, proposed PS-17 would require owners and operators of affected CPMS to: (1) select a CPMS that satisfies equipment design criteria; (2) install their CPMS according to standard procedures; (3) validate their CPMS prior to placing it into operation; and (4) record and maintain information on their CPMS and its operation.
Proposed P-4 would require periodic accuracy audits, visual inspections and other operational checks, and development and implementation of a QA/QC program for each affected CPMS.

In addition to PS-17 and P-4, U.S. EPA’s notice also proposes amendments to: (1) Procedure 1 of the “Quality Assurance Requirements for Gas Continuous Emission Monitoring Systems Used for Compliance Determinations” to clarify what owners and operators of continuous emission monitoring systems subject to PS-9 or PS-15 must do to comply with Procedure 1; and (2) the General Provisions to the New Source Performance Standards and the National Emission Standards for Hazardous Air Pollutants to ensure consistency with the requirements of PS-17 and P-4.

As currently drafted, the PS-17 and P-4 would become effective ninety (90) days after publication of the final rule and affected facilities would become subject to the rule either:

1. at the time a new CPMS is installed and placed into operation ;

2. at the time of replacement or relocation of the sensor of an existing affected CPMS;

3. at the time of replacement of the electronic signal modifier or conditioner, transmitter, external power supply, data acquisition system, data recording system, or any other mechanical or electrical component of an affected CPMS that affects accuracy, range, or resolution;

4. for facilities required to have a Title V Permit, at the time of Title V renewal or when key components of the affected CPMS are replaced as set forth above (note, however, that PS-17 requires Title V sources to comply with the basic requirements of PS-17 prior to submitting their Title V renewal application);

5. for area sources not required to obtain a Title V Permit, five (5) years after the date of publication of the final rule, or when key components of the affected CPMS are replaced as set forth above.

The U.S. EPA is in the process of reviewing and considering the public comments submitted during the public comment period for the proposed rulemaking notice, which closed on February 5, 2009. The comments submitted, include but are not limited to the following:

1. The U.S. EPA has not demonstrated a problem with the current CPMS requirements and practices to justify the proposed rule, nor has it outlined the demonstrable benefits associated with the new requirements. Many commentors raised concerns with the cost and time to implement the proposed rule compared to the benefits in accuracy and precision of measurements.

2. The U.S. EPA has grossly underestimated the number of affected facilities and the cost of the proposed rule. U.S. EPA should comply with the administrative procedures for a major regulatory action in further development of this proposed rule.

3. The timing of the requirements needs to be changed and a more reasonable schedule should be adopted (three to five years from promulgation). Furthermore, a single compliance deadline should be adopted.

4. The validation, monitoring, and recordkeeping requirements are overly burdensome.

5. The proposed rule may require a Title V Permit modification for replacement or relocation of an existing CPMS.

6. A one size fits all approach is not appropriate. The proposed rule does not account for CPMS that are factory-tested and do not require additional calibration or accuracy testing, nor does it allow facilities the flexibility to make adjustments based on system performance.

It is clear from the numerous comments submitted that proposed PS-17 and P-4 will significantly change affected sources’ CPMS requirements. To view the October 9, 2008 Federal Register click here.

Environmental Appeals Board Rejects Sierra Club’s PSD Increment Analysis Argument
Larry Kane, Partner, Environmental Law Department, Bingham McHale LLP

A challenge by the Sierra Club to a longstanding U.S. EPA interpretation of the operation of Prevention of Significant Deterioration (PSD) increment analysis for major modifications was soundly rejected by the U.S. Environmental Appeals Board (“EAB”) in a recent decision – In re: Northern Michigan University, Ripley Heating Plant, PSD Appeal No. 08-02 (EAB February 18, 2009).

One of the central issues in this appeal was Sierra Club’s contention that the plain meaning of PSD regulations governing the PSD increment analysis requires that, in the case of a major modification occurring after the major source baseline date to a source that was constructed before the major source baseline date, all actual emissions of the source as modified be excluded from the baseline concentration and used to consume available PSD increment. U.S. EPA’s historical interpretation of the application of increment analysis to this scenario has been that only the increase (or decrease) in emissions resulting from the major modification would be excluded from the baseline concentration and consume (or, conversely, expand) increment.

After finding that the applicable law was not clear and unambiguous, the EAB rejected Sierra Club’s asserted “plain meaning,” opining that it “produces results that confound the very sense and policy undergirding a workable increment consumption scheme.”

Notwithstanding its rejection of Sierra Club’s proffered interpretation, the EAB remanded this issue to the Michigan Department of Environmental Quality (DEQ) to provide a clearer and fuller explanation of the increment analysis performed for the Northern Michigan University power plant project.

Sierra Club’s contentions that BACT was required for CO2 emissions were addressed by the EAB in the same manner as in the earlier Deseret Power Cooperative decision, leading to a remand of that issue as well to Michigan DEQ for a specific decision whether to require BACT or not for that pollutant.

The permit was also remanded on three other issues, including (i) a BACT determination for SO2 that failed to adequately consider clean fuel alternatives; (ii) whether worst-case emissions were used for modeling of air quality impacts; and (iii) whether preconstruction monitoring was adequate. The first two issues are not particularly significant, arising from case-specific alleged inadequacies in the permit application and agency review.

IDEM Office of Land Quality to Adopt Drilling Procedures and Monitoring Well Construction Guidelines
By E. Ryan Murray, Attorney, Environmental Law Department, Bingham McHale LLP

On March 18, 2009, staff from the IDEM Office of Land Quality (“OLQ”) presented Non-Rule Policy Document (“NPD”) WASTE-0053, Drilling Procedures and Monitoring Well Construction Guidelines to the Solid Waste Management Board. NPD WASTE-0053 may be put into effect by the OLQ 30 days after presentation to the Board. The purpose of NPD WASTE-0053 is to assist drillers, geologists, and contractors to properly drill and construct borings and monitoring wells. NPD WASTE-0053 compiles in one document existing procedures for proper boring and monitoring well installations provided by state statutes and rules (IC 25-17.6, IC 25-39, 312 IAC 12, 312 IAC 13, and 329 IAC 9) as well as OLQ Remediation Services Branch guidance.

NPD WASTE-0053 provides procedures and clarifications for boring and monitoring well installations including: drilling methods; use and installation of bore holes; sampling and analyses of borings and monitoring wells; monitoring well construction including the proper use and installation of well casing, screen, filter pack, filter pack seal, grouting, and finished well casing; proper monitoring well development; proper management of drilling fluids, cuttings, and development water; decontamination of drilling equipment; submission of drilling data to the OLQ; and boring and monitoring well abandonment and plugging procedures.

NPD WASTE-0053 may be obtained online at http://www.in.gov/idem/files/nrpd_waste-0053.pdf (click here). Additional information regarding NPD WASTE-0053 may be obtained by contacting Larry Studebaker, Section Chief, IDEM OLQ at (317) 234-0991.