EPA News: Latest Need-to-Know from JD Supra

What’s new at the Environmental Protection Agency? A temporary suspension of contracts with BP Exploration and Production, Superfund guidance, an NSR settlement, and more.

For your reference, a roundup of EPA-related law news and updates:

EPA’s Temporary Suspension of BP Contracts with the U.S. Government–The Other Shoe to Drop (Warner Norcross & Judd):

“On Wednesday, November 28, 2012, the U.S. Environmental Protection Agency (EPA) announced that it has temporarily suspended BP Exploration and Production, Inc. (BP) from future contracts with the U.S. Government. The temporary suspension, however, does not affect any existing contracts the company has with the U.S. Government, including those relating to current and ongoing drilling and production operations in the Gulf of Mexico. This latest EPA administrative sanction remains in effect until BP can demonstrate ‘present responsibility’ to conduct business with the U.S. Government.” Read on>>

EPA Issues New Superfund Guidance (Greenberg Glusker Fields Claman & Machtinger LLP):

“Settlement plays a fundamental role in the Environmental Protection Agency’s (‘EPA’) Superfund enforcement program. Potentially Responsible Parties (seeking to resolve their liability through the settlement process should take note that EPA recently issued two new guidance memoranda on its settlement procedures.” Read on>>

EPA Notches Another NSR Settlement: Is This The Most Successful Program That Shouldn’t Exist? (Foley Hoag LLP):

“Last week, EPA announced that it had reached yet one more – its 24th – settlement under as a result of its NSR enforcement initiative. This time, it was Louisiana Generating’s Big Cajun II plant, in New Roads, Louisiana. By now, the contours are familiar, including a penalty of $14 million and injunctive relief estimated to cost approximately $250 million.” Read on>>

Federal Court Rejects Attempt to Amend $700 Million Cleanup Remedy in Wisconsin (Leonard, Street and Deinard):

“On November 21, 2012, a federal court in Wisconsin refused to allow a group of defendants to force the EPA to formally amend a cleanup remedy issued under the federal Superfund law to allow for a $269 million cost increase. The case involves environmental enforcement and cleanup efforts in the Lower Fox River in northeastern Wisconsin, which was contaminated by PCBs from the recycling of carbonless paper by pulp and paper mills located along the river in the 1950s and 1960s.” Read on>>

Little Ado About Very Much: EPA Reinterprets Its PCB Guidance (Foley Hoag LLP):

“On Tuesday, EPA issued its ‘reinterpretation’ of its understanding of what building wastes constitute ‘PCB bulk product waste’ under TSCA regulations, as opposed to ‘PCB remediation waste.’ Previously, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB bulk product waste, while the underlying contaminated building material would be considered PCB remediation waste.” Read on>>

Approaching Compliance Dates: Stationary Engines (Burr & Forman):

“Compliance dates for the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE), 40 CFR 63 Subpart ZZZZ, for existing sources are soon approaching. In 2010, EPA expanded the applicability of this rule to control hazardous air emissions not only from new engines but also existing engines, regardless of whether those engines are located at major source or area (minor) sources of HAPs.” Read on>>

And Some Potential Developments on the Water Side As Well (Foley Hoag LLP):

“Yesterday, I did an update on Clean Air Act developments. Today, it’s the Clean Water Act’s turn. According to the Daily Environment Report, EPA will meet its deadline of June 13, 2013 to promulgate a post-construction stormwater rule. I found it interesting that the story states that EPA has nearly completed its cost-benefit analysis for the rule – even though it has not yet made a decision on the size threshold.” Read on>>

PCBs in Caulking Materials (Kilpatrick Townsend):

“The United States Environmental Protection Agency (U.S. EPA) recently settled an enforcement action with The University of Massachusetts System (UMASS or the System) for alleged violations of the Toxic Substance Control Act (TSCA). This action concerned the System’s discovery that window glazing compound in a UMASS building in Amherst, MA, contains PCBs.” Read on>>

Opportunities and Risks in Green Buildings — Be careful not to overstate certifications and other environmental achievements (Lane Powell PC):

“Commercial buildings account for more than a third of our energy consumption, so reducing energy usage through strategies such as changing lighting is a simple step that can reap greater benefits. Right now, 73 buildings in Washington state are competing with nearly 3,000 other buildings around the country in the Environmental Protection Agency’s ‘Battle of the Buildings’ to see which can achieve the greatest reductions in energy use intensity.” Read on>>

D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule (Burr & Forman):

“On August 21, the D.C. Circuit Court of Appeals, in EME Homer City Generation, L.P v. EPA, F.3d (D. C. Cir. 2012), vacated the Cross-State Air Pollution Rule (CSAPR, also known as the ‘Transport Rule’) and remanded the rulemaking proceeding to EPA. The D.C. Circuit directed EPA to continue to administer the Clean Air Interstate Rule (CAIR) ‘pending implementation of a valid replacement’.” Read on>>

Five Steps to Take When an EPA Inspector Knocks (Michael Volkov):

“A question I often am asked is ‘What can and should our company do when it receives an information request from EPA or an EPA inspector shows up unannounced at one of our facilities?’ This is an excellent question in light of EPA’s extremely broad authority to conduct investigations and collect information from the companies it regulates. It also is highly relevant now given EPA’s aggressive enforcement posture.” Read on>>

Recent Common Sense Decisions on Source Aggregation: A Roadmap for Regulating Oil and Gas Emissions? (King & Spalding):

“The determination of whether air emissions from oil and gas operations are primarily regulated under state or federal permitting programs depends on whether the emissions from the ‘source’ exceed one or more federal thresholds. If a threshold is exceeded, the facility qualifies as a “major source” and is subject to federal New Source Review, Title V Permitting, or both.” Read on>>

Superfund Meets the Reality of Climate Change (Foley Hoag LLP):

“What happens when Superfund runs headlong into Mother Nature? Hurricane Sandy provides a vivid answer. As the NY Times reports today, Hurricane Sandy had a significant impact on the Gowanus Canal Superfund Site in Brooklyn, NY. The Canal was completed in 1869 and for over a century was the recipient of industrial discharges from mills, tanneries, and chemical plants resulting in what EPA describes as ‘one of the nation’s most heavily contaminated water bodies.’” Read on>>

Boiler MACT Still Aloft (Pierce Atwood LLP):

“On January 13, 2012, we authored an Alert titled ‘Status of Boiler MACT Up in the Air.’ Well, it has almost been a year, and the status of Boiler MACT is still up in the air. Our previous Alert described the status of the boiler regulations and the amendments proposed by EPA on December 21, 2011. At the time, EPA had indicated its intent to issue amendments to the Boiler MACT (major sources), Boiler GACT (minor sources), and CISWI (incinerators) rules in June 2012.” Read on >>

EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C’est La Meme Chose (Foley Hoag LLP):

“EPA recently released two guidance documents relevant to Superfund practitioners. One establishes revised procedures regarding how EPA will manage negotiations with PRPs. The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.” Read on>>

IOGA-WV Spearheads Effort to Protect Independent Producers and Challenges EPA Air Rules (Spilman Thomas & Battle, PLLC):

“On October 15, 2012, IOGA-WV, the Independent Petroleum Association of America and five other state-level oil and gas associations filed suit in the D.C. Circuit Court of Appeals challenging the U. S. Environmental Protection Agency’s (‘EPA’) New Source Performance Standards promulgated for the oil and natural gas industry on August 16, 2012. On the same day, this group of associations also petitioned EPA Administrator Lisa Jackson to reconsider certain aspects of the regulations that disproportionately impact the smaller, independent natural gas producers.” Read on>>

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