ENVIRONOTES

IDEM Creates New Rule 6 Storm Water Report Form & Establishes eDMR System
Court Ruling NPDES Permit Required for Pesticide Spraying Is Temporarily Stayed; Industry Petition for Rehearing Is Denied
IDEM Proposes Guidelines for Approval and Use of Representative Stack Test Data
Georgia Appeals Court Reverses Only Judicial Ruling Requiring CO2 Limits in Air Permits
IDEM Release TPH Guidance and Revised RISC Default Closure Tables

IDEM Creates New Rule 6 Storm Water Report Form & Establishes eDMR System
By Andy Bowman, Chair, Environmental Law Department, Bingham McHale LLP

The Office of Water Quality has posted a new state form on its website which must be used by holders of industrial storm water general permits to meet initial and annual monitoring requirements under the industrial storm water rules at 327 IAC 15-6.

The Storm Water Discharge Monitoring Report form must be submitted within one year of filing an initial or renewal Notice of Intent (NOI) letter and 365 days thereafter during the subsequent years two through five. The analytical results of a grab sample collected from each of the outfalls identified in the NOI are entered on the report form along with field information. If the facility monitors its stormwater discharge more frequently than annually or analyses samples for parameters beyond the required parameters, the additional sampling information must be included with the report. The laboratory report and chain of custody form must be attached to the report form. The new report form is available at www.in.gov/icpr/webfile/formsdiv/53590.pdf.

In June the Office of Water Quality announced the availability of electronic filing of Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs) by NPDES permit holders. The new system, called “eDMR”, is optional and does not require payment of a fee. To use eDMR, the permit holder’s data entry person, authorized representative and certified operator must each register to use the system on forms available at https://eauth.idem.in.gov/eauth/eauthlogin.aspx?AAID=8002.

Court Ruling NPDES Permit Required for Pesticide Spraying Is Temporarily Stayed; Industry Petition for Rehearing Is DenieD
By Larry Kane, Partner, Environmental Law Department, Bingham McHale LLP

There has been recent developments concerning the decision of the Sixth Circuit Court of Appeals in National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009) holding an NPDES permit is required to apply pesticides to or near navigable waters or federally regulated wetlands. To review succinctly, National Cotton Council involved a challenge by various environmental advocacy organizations to a 2007 EPA rulemaking that established an express exemption from NPDES permitting requirements for the application of pesticides into waters of the United States for control of aquatic pests or over such waters to control mosquitoes or other flying insect pests so long as the pesticide application was consistent with all relevant requirements set under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). See 40 CFR 122.3(h), as added at 71 FR 68492 (Nov. 27, 2006). Various industry groups intervened in the litigation to support EPA’s rulemaking. Prior to adoption of the regulatory exemption, EPA and states with NPDES authority had tacitly avoided requiring NPDES permits for pesticide application where conducted in conformance with FIFRA requirements.

The Sixth Circuit ultimately sided with arguments of the environmental advocacy groups that the regulatory exemption from NPDES permitting for pesticide application was inconsistent with the express language of the definition of “pollutant” in Section 502(6) of the Clean Water Act, 42 U.S.C. § 1362(6). The Court concluded that biological pesticides were “biological materials,” one of the listed examples of a “pollutant.” Similarly, excess pesticides that are applied into waters or sprayed over or near waters and also enter waters were construed to be “chemical wastes,” another express example of “pollutant” from the statute. Given this view of “pollutants” and the point source nature of pesticide applicators, the Court found the NPDES permit requirements of Section 402 of the Clean Water Act to unambiguously apply to the application of pesticides to waters. As a result, the Court vacated the EPA rule.

Following the Court’s decision, industry interveners petitioned for a rehearing of the case by the Sixth Circuit en banc. On August 3, 2009, the Sixth Circuit denied the petition for rehearing, leaving no further recourse for those parties except to seek review by the U.S. Supreme Court. If such an appeal is sought, a petition for certiorari must be filed by November 3.

Denial of the petition for rehearing does not affect the 24-month stay of the National Cotton Council decision granted to EPA (and effectively to states with NPDES authority) to develop a general permit or other strategy for providing NPDES authorization for pesticide applicators. EPA had petitioned the Court on April 9, 2009, for a stay of the vacatur order for a two-year period “to avoid significant disruption to EPA and [the states with NPDES authority]”. EPA contended that immediate vacation of the EPA rule would be disruptive because NPDES permits would be now required for “all applications of biological pesticides” and “almost all applications of chemical pesticides to, over, or near waters of the United States. EPA estimated that hundreds of thousands of pesticide applications occur annually and the only feasible manner of addressing the permit obligation would be through development and adoption of a general permit. State NPDES authorities will need to develop their own general permit authorities for pesticide application.

IDEM Proposes Guidelines for Approval and Use of Representative Stack Test Data
By Jennifer K. Thompson, Partner, Environmental Law Department, Bingham McHale LLP

The Indiana Department of Environmental Management (“IDEM”) has proposed a new non-rule policy entitled “Guidelines for Approval and Use of Representative Stack Test Data”, Air-034-NPD (“NPD”). The proposed NPD sets forth the criteria IDEM will utilize when determining whether representative test data may be used to provide emission factors for permitting decisions, emission estimations for billing purposes, or to demonstrate compliance in lieu of a stack test. “Representative test data” means test data submitted in lieu of actual testing of a particular emission unit. Examples of representative test data include testing conducted by a trade group on units that are identical or very similar to the subject unit, testing of identical units at another site owned by the same company, mass balance studies, and testing using equivalent test methods approved by U.S. EPA.

The policy applies to units having potential emissions less than one hundred (100) tons per year of any regulated pollutant and with actual emissions less than fifty percent (50%) of an applicable limit. Pursuant to the policy, said sources may petition to use representative test data obtained from identical or very similar processes utilizing U.S. EPA approved or equivalent methods found in the appendices of 40 CFR Parts 51 and 60, Conditional Test Methods published by U.S. EPA or other sampling methods such as those published by the American Society for Testing and Materials (“ASTM”), the California Air Resources Board (“CARB”) or the National Council for Air and Stream Improvement (“NCASI”).

Requests and/or permit applications seeking IDEM’s approval to utilize representative stack test data should include the following information:

1. A description of the process and any associated air pollution control equipment.
2. A description of how the process for which the request is being made is identical (or at least very similar in design, operation, and control) to the process previously tested, including the identification of the process or equipment manufacturer, model number or other manufacturer’s designation, rated capacity, operating specifications and control device specifications.
3. Complete test results and a description of the sampling methodology used while performing the test, including sample calculations and all required quality assurance requirements.
4. Process data to document how the unit was run during the test, including process operating speed, raw materials used or type of fuel combusted.
5. Air pollution control monitoring data to document how the air pollution control unit was operated during the test, including flow rates, pressure drops, temperatures and other monitoring associated with the control device as applicable.

IDEM’s proposed NPD can be found at http://www.in.gov/idem/files/nrpd_air-034.pdf. After receiving comments from the public through August 24, 2009 on the proposed NPD, IDEM will present the NPD to the Air Pollution Control Board (“APCB”). IDEM has tentatively scheduled its presentation for the November 4, 2009 APCB meeting. IDEM may put the NPD into effect thirty (30) days after it has been presented to the APCB.

Georgia Appeals Court Reverses Only Judicial Ruling Requiring CO2 limits in Air Permits
By Matt Gernand, Attorney, Environmental Law Department, Bingham McHale LLP

On July 7, 2009 in Longleaf Energy Associates v. Friends of the Chattahoochee, Inc., A09A0387, A09A0388, Court of Appeals of Georgia, July 7, 2009 (hereinafter “Longleaf”), the Court of Appeals of Georgia reversed and remanded a trial court’s ruling that would have required a proposed coal-fired power plant to install best available control technology (“BACT”) for carbon dioxide (“CO2”). The lower court judge ruled in favor of the Sierra Club and other environmental groups who had appealed the proposed plant’s PSD permit and held that CO2 was a “pollutant subject to regulation under the [Clean Air Act]” and was subject to PSD and BACT, becoming the first and only court in the country to make such a ruling.

The Court of Appeals reversed, ruling that a December 18, 2008 memorandum issued by then U.S. EPA Administrator, Stephen Johnson, “established the EPA’s definitive interpretation of pollutants covered by the PSD program, and finds that a ‘regulated NSR pollutant’ to which the BACT requirement applies in the PSD program ‘exclude[s] pollutants for which EPA regulations only require monitoring or reporting but include[s] all pollutants subject to a provision in the Clean Air Act that requires actual control of emissions of that pollutant.’” Longleaf at 10. Because the Clean Air Act does not contain a provision which requires the actual control of CO2, the Court of Appeals held that it is not subject to BACT. Id. at 13.

In reaching this conclusion, the court acknowledged that requiring BACT limits for CO2 would “impose a regulatory burden on Georgia never imposed elsewhere.” The court elaborated,

[a requirement for CO2 BACT limits] would compel the EPD to limit CO2 emissions in air quality permits, even though no CAA provision or Georgia statute or regulation actually controls or limits CO2 emissions, and even though (to this Court’s knowledge) no federal or state court has previously ordered controls or limits on CO2 emissions pursuant to the CAA. It would preempt ongoing Congressional and EPA efforts to formulate a CO2 emissions policy for all states, and require the EPD to invent in a vacuum CO2 emission controls for permits. If accepted it would engulf a wide range of potential CO2 emitters in Georgia – and Georgia alone – in a flood of litigation over permits, and impose far reaching economic hardship on the State. (internal footnotes omitted). Id. at 7-8.

Several similar challenges have been filed in Indiana by the Sierra Club and other environmental groups and although the Longleaf decision is not binding on Indiana courts, it nonetheless provides Indiana courts facing this issue a rationale for not requiring CO2 BACT limits.

IDEM Releases TPH Guidance and Revised RISC Default Closure Tables
By E. Ryan Murray, Attorney, Environmental Law Department, Bingham McHale LLP

In a pair of announcements made in May and July, 2009, the Indiana Department of Environmental Management (“IDEM”) released revised RISC Default Closure Tables including the addition of new Default Closure Levels (“DCLs”) for three compounds and Total Petroleum Hydrocarbon (“TPH”) guidance with revised TPH DCLs.

Revised RISC Default Closure Tables

On May 1, 2009, the IDEM revised the RISC Default Closure Level Table (Table A), the Chemical/Physical Properties Table (Table B) and the Human Health Toxicity Parameters Table (Table F) in the 2006 RISC Technical Resource Guidance Document (“Technical Guide”) Appendix 1 to include revised and new DCLs. As part of these changes, the IDEM made the following revisions to Appendix 1 of the Technical Guide:

• Added DCLs for ethylene glycol, propylene glycol monomethyl ether, and trichlorofluoromethane;
• Eliminated DCLs applicable to bis(2-chloroisopropyl)ether;
• Revised the RISC Default Closure Tables to reflect changes made in August 2006 revising the DCLs applicable to certain polycyclic aromatic hydrocarbons (acenaphthene, anthracene, benzo(b)fluoranthene, benzo(k)fluoranthene, chrysene, fluoranthene, fluorene, indeno(1,2,3-cd)pyrene, and pyrene);
• Revised the RISC Default Closure Tables to reflect the November 2006 adoption of the proposed toxicity value for trichloroethylene (“TCE”) and posted additional information regarding the revised TCE DCLs at http://www.in.gov/idem/5316.htm; and
• Corrected the construction closure level for vinyl chloride.

A revised Technical Guide, Appendix 1 including the above-described revisions is available at http://www.in.gov/idem/files/risctech_appendix1_2006_r1.pdf.

TPH Guidance

On July 16, 2009, the IDEM announced substantial updates to the TPH DCLs and to site closure procedures. The July 16, 2009 announcement summarized the conclusions of a workgroup organized by the IDEM in cooperation with the Midwest States Environmental Consultants Association (“IDEM Workgroup”) to address challenges related to determining the nature and extent of TPH-ERO contamination in ground water. Among other actions, the IDEM Workgroup established revised TPH DCLs and developed a “weight of evidence approach” for closure of sites with TPH-DRO contaminated ground water.

The IDEM workgroup developed revised TPH DCLs through the substitution of revised toxicological surrogates used to calculate the closure levels. The result of the IDEM Workgroup’s use of updated toxicological surrogates was a substantial increase in the TPH DCLs. The following revised TPH DCLs were developed by the IDEM Workgroup:

According to the IDEM, the revised TPH DCLs became effective immediately upon release of the IDEM’s announcement.

In addition to the revised TPH DCLs, the IDEM workgroup developed a “weight of evidence approach” for closure of sites with TPH-DRO contaminated ground water. The "weight of evidence" approach may be used to obtain closure for sites not representing a serious threat where all chemicals of concern (“COC”) in soil and groundwater are below residential default closure levels (“RDCL”), except TPH-DRO in groundwater. The weight of evidence approach can be used if: (1) TPH-DRO is the only diesel COC that exceeds RDCL in groundwater but is below the industrial default closure level ("IDCL"); (2) TPH-DRO in soil is below the residential migration to groundwater level (230 mg/kg for residential in the new guidance); and (3) Groundwater samples are from a properly constructed and developed monitoring well using low flow sampling.

IDEM also announced it will be posting guidance on TPH background levels from shale and crude oil in soils.

IDEM’s July 16, 2009 announcement summarizing the findings of the IDEM Workgroup is available at http://www.in.gov/idem/files/risc_tph_announce_20090716.pdf.