Download the full report for July 2011 (PDF)
AIR
FEDERAL: EPA revised the New Source Performance Standards (NSPS) for stationary compression ignition internal combustion engines, set forth at 40 CFR Part 60, subpart IIII, to conform to recent changes to standards for comparable nonroad engines. Under subpart IIII, owners/operators of new, modified or reconstructed stationary compression ignition internal combustion engines, such as those found in generators, must comply with emission limitation, testing and other requirements; the emission limits are based on standards previously adopted by EPA for comparable marine equipment. With the recent rulemaking, EPA revised the subpart IIII stationary engine standards to reflect changes to the marine engine standards. The new rule also provides engine owners/operators with greater flexibility by giving them the option of developing their own operation and maintenance plans rather than requiring them to maintain engines in accordance with manufacturer specifications. As part of the rulemaking, EPA also made minor changes to the standards of performance for new, reconstructed and modified stationary spark ignition internal combustion engines, set forth at 40 CFR Part 60, subpart JJJJ, to mirror certain changes adopted for compression ignition engines. The rule can be found in the June 28, 2011 Federal Register at: www.gpo.gov/fdsys.
Implications: The revisions potentially affect owners/operators of certain new, reconstructed or modified stationary compression and spark ignition internal combustion engines.
FEDERAL: EPA published a direct final rule revising the area (i.e., minor) source standard for plating and polishing issued under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. Among other things, EPA clarified that 40 CFR Part 63, subpart WWWWWW was not intended to apply to bench-scale operations, which EPA defines as “Any operation that is small enough to be performed on a bench, table or similar structure so that the equipment is not directly contacting the floor.” The rule, which also contains numerous other technical corrections, will take effect September 19, 2011 unless EPA receives significant adverse comment by July 20, 2011. It can be found in the June 20, 2011 Federal Register at: www.gpo.gov/fdsys.
Implications: The revisions potentially affect area (i.e., minor) sources engaged in metal plating and polishing.
NEW YORK STATE: DEC has set the fees for Title V facilities for 2011 consistent with the sliding scale enacted by the legislature in 2009. That law levies Title V air permit fees based on the quantity of annual emissions as follows: $45.00 per ton for facilities with total annual emissions of less than 1,000 tons; $50.00 per ton for facilities with total annual emissions of 1,000 tons or more but less than 2,000 tons; $55.00 per ton for facilities with total annual emissions of 2,000 tons or more but less than 5,000 tons; and $65.00 per ton for facilities with total annual emissions of 5,000 tons or more. The Clean Air Act requires states to impose fees on Title V facilities sufficient to cover the costs of the Title V program. Applying this principle, DEC calculated Title V fees at $169.70 per ton for 2011; however, the legislature has capped Title V fees as outlined above. Notice concerning the 2011 Title V fees can be found in the June 22, 2011 Environmental Notice Bulletin at: www.dec.ny.gov/enb/20110622_not0.html.
Implications: Title V facilities must pay permit fees according to the schedule above.
CLIMATE CHANGE
FEDERAL: EPA, in conjunction with the U.S. Department of Transportation, adopted changes to the fuel economy labels posted in the window of new cars, light-duty trucks, and medium-duty passenger vehicles. The current label contains EPA fuel economy estimates for city, highway and combined driving, an estimated annual fuel cost, and a comparison of fuel economy relative to other vehicles. By comparison, the new label for gasoline vehicles also includes: an estimate of the number of gallons used every 100 miles; an estimate of savings in fuel costs compared to the average vehicle; an estimate of carbon dioxide emitted per mile; a comparison of combined GHG emissions and fuel economy relative to other vehicles; and an average smog rating. Specific labels also have been provided for diesel, ethanol flexible fuel, compressed natural gas, electric, plug-in hybrid electric, and hydrogen fuel cell vehicles containing information tailored to the vehicle type. For example, information on charge time and range are included for electric vehicles and plug-in hybrid electric vehicles. The redesigned labels also include a smartphone interactive code that permits direct access to additional online resources. EPA rejected an alternative label that would have included a letter grade ranging from A+ to D based on fuel economy and GHGs. The new labeling requirements apply to model year 2013 and later vehicles with a voluntary manufacturer option for model year 2012. The rule can be found in the July 6, 2011 Federal Register at: www.gpo.gov/fdsys.
Implications: The rule is of interest to motor vehicle manufacturers, distributors and consumers.
BULK STORAGE
FEDERAL: EPA published guidance clarifying how tank owners/operators can demonstrate compliance with compatibility requirements for underground storage tank (UST) systems storing certain biofuel blends. Under the federal UST regulations, the tank and other UST system components must be compatible with the material stored. Currently, tank components are generally compatible with blends containing 10 percent or less ethanol; in addition, many tanks and piping have been listed by Underwriters Laboratory (UL) as compatible with higher-concentration ethanol blends. However, other tank components such as leak detection devices, seals, and containment sumps have not been listed by UL as compatible with these higher-concentration blends; also, questions have arisen about possible compatibility problems associated with biodiesel blends. As the biofuel supply increases, storage of blended fuels is likely to increase. EPA’s guidance introduces the compatibility issue, lists the UST system equipment required to be compatible, and identifies options for meeting the compatibility requirements. The guidance can be found in the July 5, 2011 Federal Register at: www.gpo.gov/fdsys.
Implications: The guidance is primarily of interest to facilities that store gasoline and diesel fuel underground.
REMEDIATION
NEW YORK STATE: DEC’s Division of Environmental Remediation (DER) issued its Annual Report, which provides an overview of DER’s programs and accomplishments during the 2010-2011 fiscal year. The report covers the state superfund, brownfield cleanup, environmental restoration, voluntary cleanup, spill response, bulk storage, hazardous waste management, waste transporter, and radiation programs. Items of note include the following: (1) in September 2010, DEC moved the administration of the hazardous waste management, radiation and waste transporter permit programs to DER; (2) as of March 31, 2011, 47% of approved brownfield cleanup program (BCP) applications and active sites were in DEC Regions 2 and 3, while Regions 1, 4, 5 and 6 accounted for just 13%; (3) over 13,000 spill incidents were reported to the DEC Spill Hotline in fiscal year 2010-2011, while over 15,000 incidents were closed; (4) the number of bulk storage program inspections increased from 1,465 in 2005-2006 to 6,967 in 2010-2011 a change that is attributable to the federal Energy Policy Act of 2005, which requires certain facilities to be inspected at least once every three years; and (5) in 2010-2011, DER completed a multi-year eSmart initiative to enhance the tracking of hazardous waste from cradle to grave and improve DEC’s ability to audit special assessment taxes and calculate annual hazardous waste regulatory fee bills. The report can be found on DEC’s website at: www.dec.ny.gov/about/53234.html.
Implications: The Annual Report is of potential interest to anyone regulated under DEC’s remediation, hazardous waste, bulk storage, waste transportation or radiation programs.
OCCUPATIONAL SAFETY AND HEALTH
FEDERAL: The Occupational Safety and Health Administration (OSHA) adopted the latest in a series of rulemakings designed to remove or revise outdated, duplicative, unnecessary, and inconsistent requirements in its safety and health standards. Perhaps most significantly, OSHA removed the requirement in the general industry and shipyard standards that employers prepare and maintain a written record certifying compliance with training requirements for personal protective equipment. In addition, OSHA adopted changes relating to the following general industry standards: means of egress, respiratory protection, sanitation (relating to potable water), bloodborne pathogens (relating to handwashing facilities), slings, commercial diving, and toxic and hazardous substances (including trigger levels in the lead standards and occupational exposure to hazardous chemicals in laboratories). OSHA also adopted minor changes to the standards for shipyard employment, marine terminals, longshoring, gear certification, and construction. The rule, which took effect July 8, 2011, can be found in the June 8, 2011 Federal Register at: www.gpo.gov/fdsys.
Implications: The rule is of general interest to companies subject to OSHA standards.
FEDERAL: OSHA announced a new National Emphasis Program (NEP) for the primary metals industry after concluding based on inspections and other data that workers in the industry are exposed to serious safety and health hazards on a daily basis, including chemical exposures and physical stressors such as noise and heat. The NEP targets facilities in Standard Industrial Classification (SIC) Major Group 33, Primary Metal Industries, which includes industries involved in extracting and refining metals as well as those that manufacture nails, insulated wires and cables, steel piping and other similar products. The NEP contains procedures for: selecting sites for inspection; developing an outreach program to support OSHA’s enforcement efforts; conducting inspections (including opening conference, walkaround and records review, and exposure monitoring); issuing citations under specific OSHA standards; conducting follow-up inspections; and complying with other NEP requirements. OSHA hopes that the NEP will help identify and reduce or eliminate worker exposure to harmful chemical and physical hazards in establishments producing metal products. The NEP document can be found on the OSHA website at: www.osha.gov. OSHA has NEPs for hexavalent chromium, lead, crystalline silica, and combustible dust, among others.
Implications: The new NEP targets businesses in SIC Code 33, Primary Metal Industries.
FEDERAL: OSHA issued a revised instruction entitled Guidelines for Administering Corporate-Wide Settlement Agreements, which expands the availability of settlement agreements imposing obligations on employers with multiple locations. The new Instruction extends the use of CSAs to a broader range of enforcement cases involving significant patterns of noncompliance with OSHA across multiple sites. Among other things, the instruction: (1) identifies the suitability of cases for CSAs; (2) provides an overview of the CSA process; (3) summarizes CSA content; (4) addresses abatement verification, including consequences of a failure to abate; and (5) discusses establishment of a CSA monitoring plan and CSA reporting requirements. The instruction can be found on the OSHA website at: www.osha.gov.
Implications: The instruction is potentially of interest to employers with facilities in multiple locations.
FEDERAL: OSHA announced creation of a new interactive website to help employers better comply with their injury/illness recordkeeping requirements under 29 CFR Part 1904. The Recordkeeping Advisor presents a series of questions designed to help users determine: (1) whether an injury or illness is work-related; (2) whether an event or exposure at home or on travel is work- related; (3) whether an exception applies to the injury or illness; (4) whether a work-related injury or illness needs to be recorded; and (5) which provisions of the regulation apply when recording a work-related injury or illness. Responses entered into the program are confidential and the system does not record or store any of the information provided by the user. The Recordkeeping Advisor can be accessed on OSHA’s eLaws webpage at: www.dol.gov/elaws.
Implications: The new tool is potentially useful to employers subject to OSHA’s injury/illness recordkeeping requirements.
OTHER
FEDERAL: EPA, together with other federal agencies, issued a Federal Radon Action Plan, which outlines the federal government’s multiyear program to protect families from the danger of radon through expanded radon testing of existing homes, mitigation of high radon levels, and implementation of radon-resistant new construction techniques. According to EPA, radon is the second leading cause of lung cancer in the United States. However, the vast majority of Americans are unaware of the danger; moreover, relatively few homes are tested for radon and those with high levels typically are not mitigated. The Action Plan lays out a strategy for addressing this problem through three basic steps: (1) demonstrating the importance of radon risk reduction (via education and outreach, incorporation of radon testing and mitigation into federal programs, improving radon tracking, etc.); (2) addressing finance and incentive issues to drive mitigation and testing; and (3) building demand for professional services (update various federal housing standards, test remediation protocols, address radon in conjunction with weatherization assistance programs, require radon testing at various federal and federally subsidized facilities, etc.). The Action Plan can be found on EPA’s website at: www.epa.gov/radon/action_plan.html.
Other Recent Developments (Proposed)
OCCUPATIONAL SAFETY AND HEALTH
FEDERAL: OSHA proposed to update the list of industries that are partially exempt from maintaining records of occupational injuries and illnesses and change the rules governing when certain injuries must be reported. Under 29 CFR §1904.2, establishments in certain lower-hazard industry classifications are exempt from the requirement to maintain employee injury and illness records. To establish the current list of exempt industries, OSHA reviewed the average lost workday injury list for businesses in SIC Groups 52-89, which encompass retail trade, finance, insurance and real estate, and service industries; those industries with an injury rate below a specified threshold were excluded from regulation. With this rulemaking, OSHA is converting the industry list from SIC to North American Industry Classification System codes and applying recent data concerning injury rates to identify low hazard industries for exemption. OSHA also is proposing to change the rules governing when injuries/illnesses must be reported. Currently, OSHA requires an employer to report to OSHA within eight hours all work-related fatalities and in-patient hospitalizations of three or more employees. The proposed rule would require employers to report all work-related fatalities and in-patient hospitalizations within eight hours; work-related amputations would have to be reported within 24 hours. OSHA is accepting comments on the proposed rule until September 20, 2011; it can be found in the June 22, 2011 Federal Register at: www.gpo.gov/fdsys.
Implications: The proposed rule is potentially of interest to any employer who is now or may be subject to OSHA’s employee injury/illness recordkeeping and reporting requirements.
Recent Decisions
The U.S. Supreme Court recently rejected lawsuits brought by eight states, New York City, and three land trusts against several of the nation’s largest electricity generating companies seeking abatement of their ongoing contributions to the public nuisance of global warming. In the absence of federal action on climate change, the plaintiffs sued the five largest emitters of greenhouse gases in the country, alleging that they had substantially and unreasonably interfered with public rights in violation of the federal common law of interstate nuisance. After the district court dismissed the suit on the ground that it raised a nonjusticiable political question, the Court of Appeals for the Second Circuit concluded that the plaintiffs had stated a claim under the federal common law of nuisance that was not displaced by the Clean Air Act. In American Electric Power Co. v. Connecticut, 2011 WL 2437011 (2011), the U.S. Supreme Court reversed, finding that the CAA and EPA’s actions under the Act displaced any federal common law right to seek abatement of carbon dioxide emissions from fossil fuel-fired power plants. Citing its recent decision in Massachusetts v. EPA, the Court concluded that carbon dioxide is a pollutant under the Clean Air Act and that EPA has the authority regulate it under 42 USC § 7411, which authorizes the establishment of new source performance standards (NSPS) and emission guidelines. In so finding, the court rejected plaintiffs’ argument that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., sets standards governing emissions from defendants’ plants. While the decision was pending, EPA agreed in a judicial settlement to propose NSPS for GHG emissions from power plants in the near future. The decision can be found online at: www.supremecourt.gov/opinions/10pdf/10-174.pdf.
Download the full report for July 2011 (PDF)