Tennessee Environmental Law Blog

EPA Issues Sustainable Design and Green Building Toolkit for Local Governments

The U.S. Environmental Protection Agency (EPA) recently issued its Sustainable Design and Green Building Toolkit for Local Governments (Toolkit) in order to assist local governments in identifying and removing barriers to sustainable design and green building within their permitting process. This Toolkit addresses the codes/ordinances that would affect the design, construction, renovation, and operation and maintenance of a building and its immediate site. There are two sections to the Toolkit: the first section is an Assessment Tool and Resource Guide. The second section is a guide to developing an Action Plan for implementing changes within a community’s permitting process.

The goal of the Assessment Tool is to help the user better understand how a jurisdiction’s current codes/ordinances and permitting process might allow or disallow sustainable design and green building practices. The Toolkit contains an Assessment Tool, a Resource Guide, and an Action Plan for implementing changes to the permitting process. The Assessment Tool is designed for local governments to review their permitting process and identify barriers or resistance to sustainable design practices. The Assessment offers a green/yellow/red progress indicator for the user. Green indicates that the community is doing well in encouraging sustainable design through its codes and ordinances. Yellow indicates that there is room for improvement within the existing permitting process. Red indicates that the community may want to identify the cause of the barrier(s) and remove it from the process.

The Resource Guide contains links to existing organizations and documents that will help communities learn more about each category in the Assessment Tool. Additionally, the Resource Guide provides users with information that can aid in making codes and ordinances more compatible or supportive of sustainable design and green building. If green tools or techniques are not permitted or encouraged, this information can help local governments implement changes to allow these techniques.

PROPOSED EPA STORMWATER RULES WILL HAVE SIGNIFICANT IMPACT ON SMALL BUSINESS: EPA SOLICITS ASSISTANCE

The U.S. Environmental Protection Agency (EPA) is inviting small businesses and municipalities to nominate representatives to provide input on a proposed stormwater rule. Click here for detailed information. EPA has determined that this rule if implemented will have a significant impact on small businesses and small governments. The rule would strengthen the national stormwater program under the Clean Water Act (CWA) and focus on stormwater discharges from developed sites, such as subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers.

The proposed rules are at 74 FR 68617-68622). As described in that notice, EPA is considering numerous actions as part of its rulemaking, for example:

· Expanding the scope of stormwater discharges regulated under the CWA. This may mean regulating additional discharges from MS4s, regulating additional discharges from areas served by currently regulated MS4s, and/or regulating discharges from developed sites.

· Establishing national standards for stormwater discharges from newly developed and redeveloped sites.

· Strengthen existing requirements for discharges from MS4s.

· Revising existing MS4 regulations to set out the requirements for MS4 permits together in one place (as opposed to the separate Phase I and Phase II rules).

· Revising the existing MS4 regulations to include requirements for retrofitting stormwater controls at existing developed sites that discharge to an MS4, and

· Including specific regulatory provisions for stormwater discharges in the Chesapeake Bay watershed.

If you are a representative of or a developer or owner of sites such as, but not limited to, subdivisions, roadways, industrial facilities, and commercial buildings or shopping centers and your business is a small business, or you represent or own or operate a small MS4 that may potentially be subject to this rulemaking, you may be eligible to serve as a Small Entity Representative (SER).

Selected participants would provide input to a Small Business Advocacy Review panel, which will consist of officials from EPA, the U.S. Small Business Administration and the Office of Management and Budget. The representatives will provide input on how EPA can minimize the potential burden on small entities of the proposed regulation. Nominations must be received by August 4, 2010 by sending a message to RFA-SBREFA@epa.gov or call (202) 564-2855 by no later than August 4, 2010.

COAL ASH RULEMAKING PUBLISHED IN FEDERAL REGISTER

The May 4, 2010 prepublication version of EPA's co-proposal on how it plans to regulate coal ash from utilities was published on June 21, 2010. Click here to view the rules. The public has until July 21 to request a public hearing. The comment period closes on September 21.

303 (d) List Available For Public Comment

TDEC recently presented its Draft 303 (d) List, which is currently available for public comment. Under the authority bestowed by the Clean Water Act, TDEC is soliciting public comments on its draft List of impaired waters. To view the draft, please click here.

For those of you unfamiliar with the term "303 (d) List," TDEC defines it as a compilation of the streams and lakes in Tennessee that are “water quality limited” or are expected to exceed water quality standards in the next two years and need additional pollution controls. Water quality limited streams are those that have one or more properties that violate water quality standards even with the application of technology based effluent limitations. They are considered impaired and do not fully meet designated uses. Most of the impairments are based on biological indicators. TDEC evaluates streams on a 5-year basis using standard operating procedures to compare the biology in a stream with a reference stream. The 303(d) process then leads to the development of a total maximum daily load (TMDL) that provides waste load allocations for point source discharges. The TMDL is the sum of the loading from point sources as well as non point sources plus a margin of safety. Once established, the TMDL could siginficantly affect activities from point sources. Therefore, it is important to make sure that TDEC properly evaluates the stream in the first place to make sure it properly belongs on the list.

According to 40 CFR 130.7 (b)(1), “[e]ach State shall identify those water quality-limited segments still requiring [Total Maximum Daily Loads] within its boundaries for which: (i) Technology-based effluent limitations are required … ; (ii) More stringent effluent limitations … are required by either State or local authority … ; and (iii) Other pollution control requirements (e.g., best management practices) are required by local, State, or Federal authority are not stringent enough to implement any water quality standards (WQS) applicable to such waters.”

RECENT UST LEGISLATION

Legislation effective May 11, 2010 extends liability to other persons not previously considered to be responsible parties, allows the Commissioner to order permanent closure of a UST site and allows the commissioner to apportion liability between liable parties for costs incurred by the department. In addition, the legislation, which became Public Chapter No. 903, clarifies that the underground storage tank fund can be used not only for petroleum sites that contain the underground tanks, but allow the fund to be used to address releases where the UST’s have been removed. More significant, however, the Act adds two additional categories of responsible parties: (1) Persons who intentionally directly cause the release of petroleum and (2) any person who negligently directly causes the release of petroleum. This latter category is directed at persons not affiliated with the owner or operator of the UST or the owner of the site. Thus, the fuel supplier, for example, who negligently causes a release of petroleum when resupplying the tanks could be liable for cleanup.

The legislation also permits the Commissioner to order permanent closure of a UST if the UST is not brought into compliance within six months of being prohibited from receiving petroleum or if all fees, penalties and interest are not paid by the following year when the next year’s fees are due. Current law permits the Commissioner to file an action in court to collect its oversight costs. Public Chapter No. 903 makes that easier by allowing the Commissioner to issue an administrative order. In doing so, the Commissioner can apportion the amount among the responsible parties. The factors for apportionment, however, are those that typically appear in penalty considerations rather than apportionment. For example in Superfund type apportionments of oversight costs, the commissioner considers the relative contribution and other equitable factors. Apportionment among the responsible parties in this legislation include, financial benefit, culpability, efforts and expenses already paid. Like other Commissioner’s orders the assessment is final if not appealed within thirty days of receipt.

PROPOSED COAL ASH RULEMAKING

EPA announced today it will initiate a rulemaking procedure that would be used to assist EPA in determining how to better regulate coal ash. The proposal calls for public comment on two approaches: Subtitle C of RCRA for hazardous waste or Subtitle D of RCRA as a solid non-hazardous waste primarily enforced by citizen suits. Click the link for coal ash rulemaking to view more on the rulemaking procedure. Of course Subtitle C pertains to cradle to grave management while Subtitle D addresses facilities. A chart comparing and contrasting the two approaches is available HERE.

Under both approaches proposed by EPA, the agency would leave in place the Bevill exemption for beneficial uses of coal ash in which coal combustion residuals are recycled as components of products instead of placed in impoundments or landfills. Large quantities of coal ash are used today in concrete, cement, wallboard and other contained applications that should not involve any exposure by the public to unsafe contaminants. These uses would not be impacted by today’s proposal. EPA is seeking public comment on how to frame the continued exemption of beneficial uses from regulation and is focusing in particular on whether that exemption should exclude certain non-contained applications where contaminants in coal ash could pose risks to human health.

The public comment period is 90 days from the date the rule is published in the Federal Register.

Administrator Jackson to Hold Press Conference Regarding Coal Ash

Today at 12:30 EST, Administrator Jackson will hold a press conference to make an announcement regarding coal ash. Please stay tuned to find out the content of the press conference.

For more information on the background of coal ash, please read this article, The Battle Over Regulation of Coal Combustible Products as Waste, by Bill Penny and myself.

For more information on the conference call, click here.

TDEC Issues New Petroleum Spill Policy

On April 28, 2010 at the 39^th Annual Solid And Hazardous Waste Conference, the Division of Solid Waste Management presented its new policy with regard to environmental cleanup for transportation related spills. Click on the following link to access the policy: uploads/Environmental Cleanup Transportation Petroleum Spills Original 2010 04.pdf . The policy, prepared and presented by Rick Whitson of the Division of Solid Waste Management, is a detailed step by step requirement of how to properly address such spills. The policy creates two categories for environmental cleanups. The first is for traffic accident spills contaminating environmental media with less than 25 gallons of petroleum. The second is for traffic accident spills contaminating environmental media with more than 25 gallons of petroleum. Contaminated media is defined as petroleum that spills directly onto and/or migrates from paved surfaces into gravel, soil and/or water.

For spills under 25 gallons, the Division of Solid waste management and TEMA need not be notified, but the petroleum contaminated media must be addressed usually be excavation and containment within 24 hours. The Division will allow up to five cubic yards of this contaminated media to be disposed of without special waste approval in a Class I landfill with their permission or otherwise properly treated. This must be done within two weeks.

For spills in excess of 25 gallons the owner or operator of the vehicle must adhere to much more detailed guidance. TEMA is to be notified immediately. TEMA will notify the Division of Solid Waste Management. Samples must be taken as appropriate and excavation will be required where levels exceed the Division of Underground Storage Tanks No further action levels (NFALs). Site spills above the NFAL are transferred to the State Rediation Program. Within 50 days collected liquid must be appropriately treated or recycled and contaminated media must be appropriately treated or sent to an appropriate disposal facility after obtaining special waste approval. Within 75 days the owner or operator of the vehicle must submit a report to the field office containg 17 different components.

According to Division officials this policy will be enforced consistent with other division enforcement requirements, such as notices of violations, commissioners orders and civil penalties. Of course, they expect voluntary compliance. It should be noted that this policy is not for emergency response.

For more information contact Rick Whitson at 423-854-5464.

REFLECTIONS ON EARTH DAY 2010

Earth day 1970 ushered in the field of Environmental Law as we now know it. It is truly amazing how the field has grown since then and reflecting on the sea change that has occurred since that time. What many thought would be an “ephemeral fad” turned out to be the beginning of our modern day environmental regulatory process. In his book The Making of Environmental Law, (University of Chicago Press 2004) Professor Richard Lazarus describes the formation of some of the key environmental laws. He notes that President Richard Nixon, who later vetoed the Clean Water Act and stated that environmentalists were going crazy, created much of the environmental regulatory infrastructure largely out of what appears to be political ambition.

Professor Lazarus notes that in the 1968 election environmental protection was not an issue at all. But by late 1969 and 1970 both parties were trying to gain political clout with supporting environmental measures. Senator Muskie was poised to be Nixon's next political rival, and the Democratic Party was beginning to use environmental issues to gain political strength. Politically, President Nixon could not let that happen and began to establish his environmental agenda. He signed the National Environmental Policy Act of 1969 (NEPA) which was dubbed the “Magna Carta of environmental law” on January 1, 1970. Earth day happened on his watch in 1970. In July 1970 he appointed the Council on Environmental Quality. He created by Executive Order the Environmental Protection Agency and the National Oceanic and Atmospheric Administration. He signed the Clean Air Act into law later in 1970. By the end of his administration, interestingly enough, he had attempted to dismantle nearly all the environmental programs he tried to initiate. Professor Lazarus’ book The Making of Environmental Law is a must read to gain valuable insight into how our environmental laws were developed.

Turning to Earth Day 2010, it is clear that what began in 1970 as an apparent “movement” is now ingrained into our daily lives so much that many people do not even think about the impact. We drink water that meets the requirements of the Safe Drinking Water Act, passed in the 1970s. We drive automobiles whose emissions were first regulated by the Clean Air Act of 1970. Our sewage service is regulated through permits first required by the Clean Water Act Amendments in 1972. And we should recall that NOAA, created in the 1970s, was one of the first agencies to raise questions about climate change. The EPA is now a household name to most people who see their energy star label or fuel efficiency standards on automobiles. So, here’s to Earth day 2010 and the development of environmental law!

MS4 PHASE II PERMIT PUBLIC HEARINGS

TDEC has scheduled a series of public hearings to accept comments on the 2010 Draft Phase II MS4 NPDES General Permit. Check out the draft by clicking here. A Municipal Separate Stormwater Sewer System (MS4) is simply the series of ditches and watercourses not tied into the sanitary sewer that eventually discharge to a stream. The permit will involve requirements for local governments, but these requirements will in turn be imposed on all entities that have a stormwater discharge. This includes industrial discharges as well as construction. The permit will have significant impact on the construction industry as performance standards for post construction runoff, including requirements for runoff reduction and incentives for green infrastructure. This is an NPDES permit that more than 80 local governments use to comply with stormwater requirements. All four of Tennessee’s largest municipalities and TDOT have an individual MS4 permit. There are many significant differences in the permit from the existing one, which will be discussed in another post. The permit makes substantial changes and clarifications from the prior MS4 permit which is now in effect. Here is the schedule of public hearings:

April 26, 2010, Nashville, 1:30 pm CDT

401 Church Street, L&C Tower, 17th Floor

Nashville, TN 37243

April 27, 2010, Chattanooga, 1:30 pm EDT (Corrected Time)

Chattanooga State Office Building Auditorium, 1st Floor

540 McCallie Avenue

Chattanooga, TN 37402

April 28, 2010, Knoxville, 1:30 pm EDT

Knoxville Environmental Field Office

3711 Middlebrook Pike, Large Conference Room

Knoxville, TN 37921

May 3, 2010, Memphis, 1:30 pm CDT

Memphis Environmental Field Office

8383 Wolf Lake Drive

Bartlett, TN 38133

Saccharin: No Longer Hazardous?

The EPA is proposing a rule that would alter the treatment of saccharin. The agency proposes to amend its current regulations under RCRA and remove saccharin from its list of hazardous materials when discarded or intended to be discarded. It also proposes to amend its regulations under CERCLA to remove saccharin from its list of hazardous substances.

Saccharin is a white crystalline powder, used as an artificial sweetener that is three hundred times sweeter than sugar. Saccharin has a checkered past in terms of government regulation beginning in 1908. The USDA and the FDA tried, unsuccessfully, on many occasions to ban the substance on the basis that it is harmful to human health. Saccharin is currently treated as a hazardous material because it was believed to cause cancer in animals and humans in high concentrations.

Recently, the Calorie Control Council submitted comments to the EPA suggesting that saccharin should be removed from RCRA and CERCLA regs because it did not meet the criteria for hazardous materials. The EPA proposed to grant the Council’s petition “based on a review of the evaluations conducted by key public health agencies concerning the carcinogenic and other potential toxicological effects of saccharin and its salts, as well as EPA’s own assessment of the waste generation and management information for saccharin and its salts, which demonstrate that saccharin and its salts do not meet the criteria in the hazardous waste regulations for remaining on EPA’s lists of hazardous constituents, hazardous wastes, and hazardous substances.”

EPA will seek public comments on its proposed rule as soon as it is published in the Federal Register and will continue to receive comments until 60 days after the date of publication. To see an unofficial pre-publication copy of the proposed rule, please click here.

Click here to see the EPA's press release.

Can You Explain Rulemaking to the EPA?

The EPA’s Office of Regulatory and Policy Management and the E-Rulemaking Program have teamed up to develop a contest to see who can best explain the rulemaking process to America. The EPA seeks videos of people where they would explain the rulemaking process in their own individual way. The winner will receive $2,500 and his or her video will be posted on YouTube.

There are three steps to enter:

1) Make your film

2) Upload your video to YouTube

3) Submit an online entry form

The deadline is May 17, 2010. Good luck!

For more information, please click here.

Final Rulemaking: Light-Duty Vehicle Greenhouse Gas Emissions Standards

The EPA and the Department of Transportation (DOT) have partnered up to establish new federal rules setting the first national greenhouse gas (GHG) emissions standards as they relate to gas emission levels for passenger cars and light trucks. On April 1, 2010, the agencies announced a joint final rule slated to drastically reduce GHG emissions nationwide. The rules affect model years 2012-2016.

According to the EPA’s press release, the rules will “require automakers to improve fleet-wide fuel economy and reduce fleet-wide greenhouse gas emissions by approximately 5% each year.” The new rule will culminate in a requirement that by 2016 all covered vehicles must reach an estimated 34.1 mpg- across the board. In addition, the EPA imposes a requirement that vehicle emissions combined may not exceed 250 grams of carbon dioxide per mile.

Currently, the EPA estimates that 60% of all transportation related GHG emissions are caused by cars, SUVs, vans, and light duty trucks.

Canada is also implementing its Light Duty Vehicle GHG-Emissions regulations.

EPA AGREES THAT TENNESSEE DOES NOT ALLOW MOUNTAINTOP REMOVAL COAL MINING AND VALLEY FILL

Following EPA Administrator Lisa Jackson’s press conference yesterday, April 1, 2010 on Mountaintop Removal Mining, I followed up with an email requesting clarification on the new EPA guidance as it related to Tennessee. I received the following response from EPA:

“We[EPA] understand and agree with your statement that Tennessee does not allow mountaintop removal coal mining or valley fills. The State has taken a very strong environmental position regarding surface coal mining and is working closely with mining operations to design coal mines that allow mining to proceed while providing effective protection for water quality and the environment.”

While this statement was not surprising, recent proponents of the so-called scenic vistas act being debated in committees of the Tennessee General Assembly are pressing the legislature to ban surface coal mining in excess of 2,000 feet in elevation. They are saying that this legislation is needed to stop mountaintop removal mining and valley fills. Hopefully, this statement clarifies the issue for all concerned.

EPA Issues Technical Corrections Direct Final Rule- RCRA Hazardous Waste Regulations

The EPA published a “Direct Final Rule” on March 18, 2010, relating to parts of the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations. Specifically, the EPA is making changes to the following issues:

hazardous waste identification,
manifesting,
hazardous waste generator requirements,
standards for owners and operators of hazardous waste treatment,
storage and disposal facilities,
standards for the management of specific types of hazardous waste and management facilities,
the land disposal restrictions program, and
the hazardous waste permit program.

According to the EPA, the rule “corrects existing errors” and “clarif[ies] existing parts of the hazardous waste regulatory program.” While it seems like a harmless rule that merely corrects mistakes, please be aware that it may have more of an impact on the regulated community.

The Direct Final Rule is effective on June 16, 2010, without further notice, except if adverse comments are received. If you would like to submit a comment, you may do so by visiting www.regulations.gov, email, fax, mail, or hand delivery. Be sure to include the docket ID number EPA-HQ-RCRA-2008-0678.

For the FR direct final rule, click here.