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The Chicago-Naperville, IL-IN-WI ozone nonattainment area failed to attain the 2008 ozone NAAQS by the attainment date of July 20, 2018.   The area, which is currently classified as “Moderate” for the 2008 ozone NAAQS, will automatically be bumped-up to a “Serious” classification upon the effective date of the final reclassification notice.  The Chicago area joins six (6) other Moderate areas that likewise failed to attain the standard, including Dallas-Fort Worth, TX; Greater Connecticut, CT; Houston-Galveston-Brazoria, TX; Nevada County (Western part), CA; New York-North New Jersey-Long Island, CT-NY-NJ; and San Diego County, CA.

The U.S. Environmental Protection Agency (USEPA) published a proposed rule of the reclassification on November 14, 2018.  The reclassification is based on ozone monitoring data for the years 2015-2017.  The bump-up to a Serious classification will give Illinois, Wisconsin and Indiana until July 20, 2021 to attain the standard.  These states will be required to submit to USEPA the SIP revisions for these areas that meet the requirements applicable to “Serious” areas under Section 182(c) of the Clean Air Act.  USEPA is proposing in the rule to allow the states up to 12 months after the effective date of the final reclassification notice to submit SIP revisions for non-RACT requirements and until August 3, 2020 to submit RACT SIP revisions.

The effect of failing to attain the standard is significant for owners or operators of sources in the area that emit volatile organic compounds (VOCs) or nitrogen oxides (NOx).  The main impacts of the reclassification include:  (a) the Title V major source threshold will be going from 100 tpy to 50 tpy; (b) the new source review major modification threshold will be going from 40 tpy to 25 tpy aggregated over 5 years; (c) the emissions offset requirements will be going from 1.15 to 1, to 1.2 to 1; and (d) new RACT requirements may be implemented to control sources emitting between 50 to 100 tpy.

With the lowering of the Title V major source threshold, sources should begin to seek emission reductions and permit revisions to stay below the new 50 tpy threshold.  Sources that cannot stay below the major source threshold will need to apply for and obtain a Title V permit.  Sources should also be considering the new source review and major source threshold changes when planning upcoming projects at your facility.

USEPA is accepting comments on the proposed rule by December 14, 2018.  Assuming no public hearing is held, the automatic bump-up could happen as early as February 2019.  We will continue to keep you apprised of developments as they occur.

With EPA’s e-Manifest set to officially launch on June 30, 2018, companies need to begin preparing to register for the system.  Here is the latest information from EPA about how the registration will work.

All receiving facilities must have an EPA ID number by June 30, 2018, regardless of whether they will be using paper or e-Manifests.  The receiving facilities are the parties that will be responsible for payment of the user fees and the EPA ID number will be the means for tracking billing.  Generators will also need an EPA ID number if they want to sign electronic manifests or correct manifests post-receipt.  Transporters that do not already have an EPA ID number will need one if they want to sign electronic manifests.

Facilities can obtain an EPA ID number from their states, except that facilities in Iowa, Alaska and New York will need to request one from their EPA Regional office.  Facilities will need to complete EPA’s Site Identification Form 8700-12 to obtain the EPA ID number.  In states that have opted in to the EPA MyRCRAid electronic submittal program, the form can be submitted electronically.  Facilities will need to complete Items 1-10, 18 and 19 on the form.  Under the reason for submittal on the form, the party should mark “on-going regulated activity.”  If a facility already has an EPA ID, they do not need to do anything further.

The e-Manifest system will be linked to EPA’s RCRAInfo program.  Currently, RCRAInfo is used for electronic submittals of the Site ID Form (8700-12) and Biennial Report (8700-13), for states that have opted in to the electronic reporting.  Once e-Manifest launches, RCRAInfo will also be used for the electronic submittal of the Uniform Hazardous Waste Manifest (8700-22) in all states.  The basic instructions for completing the e-manifest will not be materially different from submitting a paper manifest.  The data elements will remain the same, but the instructions will be updated to address completing the electronic form and signing the form electronically.

Companies can start registering site managers now under the RCRAInfo system for those states that have opted in to the Biennial Report and/or My RCRAid under the RCRAInfo system.  The site manager will have permission to view, prepare and sign forms for their sites, in addition to approving other users in their company.  EPA is recommending that each site register at least two (2) site managers, but they can register more and site managers can be registered for multiple sites.  If a company registers now, they will automatically gain access to the e-Manifest system when it launches.  EPA will announce when registration will be open in all states.

The takeaway is:

  • If you don’t have an EPA ID and will be receiving waste, you need to request an EPA ID from either your state or EPA regional office; and
  • Register now at least two (2) site managers for your company for those states that have opted into the Biennial Report and /or My RCRAid programs.

We will continue to keep you posted on developments as they become available.

Last May, the Trump EPA issued a 90-day stay of two Obama-era landfill methane rules, namely the Standards of Performance for Municipal Solid Waste Landfills (NSPS Subpart XXX) and the Emissions Guidelines (EG).  EPA was responding to concerns by industry groups to reconsider portions of the rules.  After the stay was put into place, the Natural Resources Defense Council (NRDC) and others filed a petition in the D.C. Circuit Court of Appeals for review of the stay.  While that petition was pending, the stay expired on August 29, 2017 and the rules went into effect.

This past week, the NRDC voluntarily dismissed the lawsuit following surprising stipulations by EPA that the stay did not affect the May 30, 2017 deadline for states to submit implementation plans for existing landfills or EPA’s obligation to approve or disapprove those plans by September 31, 2017 or promulgate federal plans for states that did not timely submit state plans by November 30, 2017.  In short, EPA conceded that the deadlines have past and weren’t met.

The environmental groups are claiming victory with EPA’s concessions.  However, it remains to be seen when EPA will begin enforcing the rules.  EPA’s website still states that it intends to complete the reconsideration process and comments from waste industry representatives indicate that they still intend to pursue rule revisions.  With EPA not actively enforcing the rules, more litigation is likely to come.  Check back here at Environmental Law Next for additional updates as they develop.

Continuing on our discussion of the electronic manifest (e-Manifest) system, EPA Administrator, Scott Pruitt, signed the e-Manifest User Fee Final Rule on December 20, 2017.  EPA expects the final rule to be published in the Federal Register in the coming weeks.  The pre-publication version of the final rule is attached here.

Under the final rule, user fees are only being assessed on the hazardous waste and state-only regulated waste receiving facilities.  The “billable event” is the submission of the final manifest copy signed by the receiving facilities.  In assessing the user fee on the receiving facilities only, EPA stated that it was simplifying the billing process and assuming that the receiving facilities will pass on the fees through to the generators by service agreements.

The users will pay different fees depending on the type of manifest submitted.  Given that the user fee is based on cost recovery and that paper manifests are expected to cost more to process, paper manifest fees will be considerably higher than electronic manifests.  EPA is projecting that an electronic manifest will cost $4/manifest, while a mailed copy of a paper manifest will cost $20/manifest.  Image uploads are projected to cost $13/manifest and data file uploads $7/manifest.  These fees are estimates only, based on projections of project costs.  Final user fees will be forthcoming when EPA has a final budget and contracts in place for the system.  EPA will also be publishing revised user fee schedules at two-year intervals.  Based on these estimated numbers, there is a significant incentive for receiving facilities to submit manifests electronically.

The final rule is effective June 30, 2018, which coincides with the launch of the e-Manifest system.  EPA will begin collecting fees on that date.   Receiving facilities will receive an invoice each month and will be directed to the Department of Treasury’s Pay.gov website to submit electronic payments.

We will continue to follow and provide updates from EPA on the e-Manifest system.

 

 

 

The U.S. Environmental Protection Agency’s (EPA) e-Manifest system is anticipated to officially launch in June 2018.   The e-Manifest is a nationwide system for tracking hazardous waste shipments electronically and will establish the first national repository of manifest data.  This is a much overdue modernization and consolidation of the current paper system.  The anticipated benefits of the e-Manifest are many, including (1) a reduction of paperwork that is expected to save approximately $75 million annually; (2) nearly real-time shipping tracking capabilities; (3) higher quality data due to better legibility; (4) immediate notice of problems or discrepancies; (5) a unified data system for state and federal wastes; and (6) a single method for reporting manifest data to EPA and states.

Under this new system, EPA is required to collect manifests from any entity required to submit a manifest under federal or state law.  Tens of thousands of generators, transporters, and treatment, storage and disposal facilities will be required to register for the e-Manifest system to submit manifests directly to EPA.  EPA is authorized to collect reasonable fees to pay for the system.  The final rule establishing the user fee methodology is expected later this month. The program will become effective on the same date in all states.

EPA is authorized to develop and implement the e-Manifest system under the Hazardous Waste Electronic Manifest Establishment Act, which was adopted in 2012.  EPA issued a final rule in February 2014, implementing certain provisions of that Act.  We will post an update on the user fee rule as soon as it is available.

On August 18, 2017, the Montana Department of Environmental Quality (MDEQ) formally proposed regulations providing additional requirements for the management of technologically enhanced naturally occurring radioactive material (TENORM) waste, making Montana the latest state to propose such regulations. The proposed regulations come on the heels of its neighbor, North Dakota, adopting new rules with TENORM disposal limits, which may have prompted Montana to act.

In preparing its proposed regulations, Montana DEQ relied on two detailed studies regarding oil and gas production wastes that had been recently conducted:  a North Dakota study conducted by Argonne National Laboratory (ANL) and a Pennsylvania study conducted by the Pennsylvania Department of Environmental Protection, both of which found that landfilling of waste from the oil and gas industry poses minimal risk to workers and the public.  MDEQ’s proposed TENORM regulations are consistent with North Dakota’s (and ANL’s recommendations), in that they both set TENORM disposal limits at 50 pCi/gm for Ra-226 and Ra-228. MDEQ is also requiring that the TENORM concentration of waste in a landfill not exceed the dose limit of 100 mrem/y at the boundary of the active disposal unit based on the results of MDEQ-approved site-specific modeling.  And, in what is becoming the norm for state TENORM regulations, MDEQ is also requiring generators to sample and characterize the TENORM waste prior to disposal and landfill owners and operators to screen every incoming load for radiation concentrations.

MDEQ is holding public hearings on the proposed regulations on September 7th in Helena and on September 20th in Sidney. Be sure to check back here at Environmental Law Next for additional developments as more states propose these regulations.

The Michigan legislature recently introduced Senate Bill 503 to tighten up Michigan’s existing disposal guidelines pertaining to TENORM or Technologically Enhanced, Naturally Occurring Radioactive Material. Michigan has always been ahead of the curve when it comes to TENORM regulation.  Michigan’s current TENORM disposal guidelines were established in 1996.  They provide that the disposal of Radium-226 contaminated materials, from any source, containing a concentration not exceeding 50 pCi/g can be accepted without regard to radioacitvity in a Type I (hazardous waste) or Type II (municipal solid waste) landfill.  At the time, Michigan was the only state that explicitly allowed radium-bearing wastes to be disposed of in municipal, nonhazardous waste landfills.

Michigan’s TENORM regulations were assessed by the Argonne National Laboratory in a study funded by the U.S. Department of Energy and American Petroleum Institute in 1999.  The Argonne study concluded that the Michigan disposal guidelines of 50 pCi/g of Radium-226 would not adversely impact human health or the environment, provided the TENORM wastes were placed deeper than approximately 10 feet below the landfill cap.

In 2014-2015, the Michigan Department of Environmental Quality (MDEQ) assembled a panel of experts to review Michigan’s TENORM disposal guidelines to determine if they sufficiently protect the public health and the environment.  The TENORM Disposal Advisory Panel reviewed the 1999 Argonne study, current federal and state regulatory standards, the nature of TENORM and how it decays over time, and the design and operation of modern landfills.  Based on its study, the Panel agreed that the disposal limit was safe, but made several recommendations for MDEQ in a White Paper, including requiring landfills that accept TENORM waste to restrict its placement to at least 10 feet below the landfill cap, restrict the total volume placed annually to limit worker exposure and monitor leachate and ground water monitoring wells.

Senate Bill 503 implements many of the recommendations in the White Paper and provides the following:

  • The disposal in a landfill of TENORM with a concentration of Radium-226, Radium-228 or a combination thereof over 50 pCi/g is prohibited.
  • TENORM shall be deposited at least 10 feet below the landfill cap and be “kept separate from other waste in the landfill.”
  • The landfill shall not dispose of more than 2,000 cubic meters of TENORM per year.
  • Prior to delivering TENORM to a landfill for disposal, generators shall test the TENORM for Radium-226 and Radium-228 and provide the results, as well as the proposed date of delivery and the name and address of the landfill, to the State.
  • The landfill is required to independently test all waste received by the landfill for Radium-226 and Radium-228.
  • The landfill is also required to test the landfill leachate and groundwater for Radium-226 and Radium-228.

Senate Bill 503 was introduced on July 12, 2017 and was referred to the Committee on Natural Resources.

Yesterday, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers proposed a rule to rescind the 2015 Clean Water Rule and recodify the definition of “waters of the United States,” known as WOTUS, that existed before 2015.  EPA and the Corps intend to re-evaluate and revise the WOTUS definition consistent with the Executive Order issued on February 28, 2017.  In the meantime, EPA states that the proposed rule will be implemented consistent with “Supreme Court decisions, agency guidance, and longstanding practice.”

By rule published in the Federal Register today, EPA is staying the New Source Performance Standards (NSPS) and Emissions Guidelines (EG) final rules for municipal solid waste landfills, in their entirety, for 90 days pending reconsideration.  The rules are found at 40 CFR Part 60, Subparts Cf and XXX and had been published on August 19, 2016.  The 90-day period is effective from today, May 31, through August 29, 2017.

In a letter dated May 5, 2017, EPA announced that it would be reconsidering the following topics: (1) tier 4 surface emission monitoring; (2) annual liquids reporting; (3) corrective action timeline procedures; (4) overlapping applicability with other rules; (5) the definition of cover penetration; and (6) design plan approval.

This stay has no effect on the existing rules at 40 CFR Part 60, Subparts WWW and Cc, which municipal solid waste landfills must continue to comply with.

A federal district court in Indiana recently ruled on whether email communications with environmental contractors hired by an attorney are protected from discovery. In Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, 2017 WL 1361308 (N.D. Ind. April 14, 2017), the Court held that the communications were not protected by the attorney-client privilege, but were, in part, protected by the work-product doctrine.  This decision provides much-needed guidance to lawyers when retaining environmental consultants on behalf of their clients.

The Valley Forge litigation involved a dispute between the owner of a scrap metal recycling facility and its insurer over a settlement agreement relating to an environmental clean-up at the insured’s property.  The settlement agreement allocated responsibilities for the clean-up pursuant to an agreed order with the Indiana Department of Environmental Management (IDEM).  USEPA also later asserted enforcement claims against the defendant.

Following these claims, the defendant’s attorney hired two environmental consultants – one to design a stormwater management system to treat PCB-contaminated stormwater and another to perform site remediation.  The attorney initially retained both consultants directly, with the defendant’s approval; however, the defendant was found to have later entered into a standard construction contract directly with one of the contractors.

The Court performed an in camera review of 185 emails or email threads with the environmental contractors that the defendant had withheld as privileged in response to discovery requests by the plaintiff.  Applying Indiana law, the Court held that none of the emails were protected by the attorney-client privilege.  The Court stated that, while the “attorney-client privilege can extend to consultants hired by the attorney on behalf of a client,” only communications made for the “primary purpose” of obtaining legal advice from the lawyer come within the attorney-client privilege.  These protected communications can include reports made by third parties from gathering information from the client, where the primary purpose of the report is to assist a lawyer in giving legal advice.

In this case, the Court held that that the primary purpose in retaining the environmental contractors was not to provide legal advice, but to provide environmental remediation services.  The Court further held that the attorney’s retention of the contractors, by itself, was not sufficient to bring the contractors within the scope of the attorney-client privilege, nor was labeling the communications as “privileged and confidential” or “attorney-work product.”

The Court then addressed whether the communications were protected by the attorney work-product doctrine, applying federal law.  The Court noted that the doctrine is “distinct from and broader than the attorney-client privilege,” and applies to documents prepared in anticipation of litigation by any representative of the client, “regardless of whether the representative is acting for the lawyer.”  The primary motivating purpose must be to “aid in possible future litigation.”

The record in this case supported the defendant’s claim that the motivating factor to complete the clean-up of its facility was the threat of litigation with IDEM and USEPA.  All of the emails at issue were created after the lawsuit was filed and after the parties became aware of the claims by IDEM and USEPA.  The fact that the emails also served an ordinary business purpose of completing the environmental remediation did not deprive them of their protection under the doctrine because the defendant was able to show that the anticipated litigation was the driving force behind the preparation of the requested documents.

In performing the in camera review, the Court declined to extend the protections of the work product doctrine to transmittal communications that did not contain any attorney comment, impressions or strategy, billing records or emails that merely pertained to administrative, logistical or scheduling matters.  The rest of the emails were held to be protected by the work-product doctrine.