Tennessee Environmental Law Blog

EPA Issues Correction of Construction Stormwater Reg

Yesterday, the EPA corrected its December 1, 2009, Federal Register notice for the final construction stormwater rule found at 74 FR 62995 to reflect the correct date of applicability as August 2, 2011. The Federal Register notice stated that the compliance dates for the turbidity limitation for sites that disturb 20 or more acres of land at one time was set to begin 18 months after the effective date of the rule. The notice mistakenly stated that the applicable date was August 1, 2010, NOT August 2, 2011.

As a refresher, the EPA issued its Final Rule for “Effluent Guidelines for Discharges from the Construction and Development Industry" at the end of 2009. The rule significantly affects construction projects that disturb 10 acres or greater at any one time. One of the most significant and controversial provisions is a numeric limitation for turbidity- the rule requires average daily turbidity for discharges to not exceed 280 Nephelometric turbidity units (Ntu).

 
For more information on yesterday’s correction, please click here.

For more information on the Construction Stormwater reg, please read our November 24, 2009, blog article.

TDEC Announces Impending Expiration of Current General ARAP Permits

Last week, TDEC issued Public Notice 10-33, announcing that the current general ARAP permits are set to expire on June 30, 2010. The Public Notice included draft versions of the proposed general permits, and encouraged participation in the public comment process.

The general permits proposed for reissuance are: Alteration of Wet Weather Conveyances; Bank Stabilization; Construction and Removal of Minor Road Crossings; Construction of Launching Ramps and Public Access Structures; Construction of Intake and Outfall Structures; Emergency Road Repairs; Maintenance Activities; Minor Alterations of Wetlands; Minor Dredging and Filling; Sand and Gravel Dredging; Sediment Removal for Stream Remediation; Stream Restoration and Habitat Enhancement; Surveying and Geotechnical Exploration; Utility Line Crossings; and Wetlands Restoration and Enhancement.

The division will hold public hearings to discuss and receive public comment on the proposed general permits at the following times and locations:

Date	City	Location	Time
March 30, 2010	Knoxville	Environmental Field Office 3711 Middlebrook Pike Knoxville, TN 37921	2:00 PM EDT and 7:00 PM EDT
April 1, 2010	Nashville	L&C Tower, 17th Floor 401 Church Street Nashville, TN 37243	2:00 PM CDT and 7:00 PM CDT
April 6, 2010	Memphis	Environmental Field Office 8383 Wolf Lake Dr. Bartlett, TN 38133	2:00 PM CDT and 7:00 PM CDT

Moving Toward Roadway Sustainability

Last month, researchers from the University of Washington and the engineering firm CH2M Hill unveiled their green rating system for roads “Greenroads.” The unveiling comes as the Federal Highway Administration gears up to create national guidelines regarding roadways.

Similar to- and certainly inspired by- LEED, the roadway sustainability rating system singles out minimum requirements in order to be classified as a green roadway, including noise mitigation, stormwater management, waste management, reduction of light pollution, encouragement of non-motorized vehicles, quiet pavement, etc.

If you would like to learn more about the program, please click here.

EPA Releases Coal Ash Facility Action Plans

February 4, 2010, was a significant day for electric utility facilities with coal ash impoundments. On that day, the EPA released to the public "action plans" developed by twenty two facilities with coal ash impoundments. Those action plans describe the measures the facilities are taking to make their impoundments safer.

Not only did the EPA release the action plans of the utilities, but it also took the opportunity to introduce reports relating to the structural integrity of forty other coal ash impoundment sites across the nation. According to the EPA, “most of the 40 impoundments have a rating of “high” or “significant” hazard potential, indicating the potential for harm in the event of impoundment failure.”

For more information on this topic, please click here.

When the SEC Tells You How to Embrace Climate Change, Your Business Should Listen!

Last week, the Securities and Exchange Commission (“SEC”) voted to provide the public with an interpretive guidance document of its disclosure requirements regarding climate change.

The SEC is an independent agency of the United States government with primary responsibility for enforcing the federal securities laws and regulating the securities industry.

Existing SEC rules require businesses to “disclose the impact that business or legal developments related to climate change may have on its business. The relevant rules cover a company's risk factors, business description, legal proceedings, and management discussion and analysis.” According to the SEC’s press release, the interpretive guidance sheds light on the following issues that may be affected by climate change:

Legislation and Regulation: A company should consider whether the impact of certain existing laws and regulations regarding climate change may impact current business operations (or potential impact of pending legislation). It may be required to disclose such impacts because such legislation might impact a company's bottom line.

International Accords: A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change. For instance, the Kyoto Protocol, recent discussions in Copenhagen, and the European Union Emissions Trading System may impact a company's operations, and consequently, its bottom line.

Indirect Consequences of Regulation or Business Trends: A company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends, such as the effects of legal, technological, political and scientific developments regarding climate change on current business practices. For instance, an indirect consequence might be that legislation affects a supplier company that would have the effect of causing a spike in the supplier's product. In turn, your company would have to bear the pass-through increased costs. Conversely, indirect costs may affect a company in a positive way if the company takes advantage of climate change and develops new products that are in demand because of climate change. Both these scenarios have the potential to impact a company's bottom line.

Physical Impacts of Climate Change: Companies may be required to disclose the actual and potential material impacts of environmental matters on their business. For instance, in an increasingly cold climate, air conditioners may not be as popular as they are in a warmer climate. This may have the potential of impacting a company's bottom line.

Proposed Budget for the EPA's Seven Key Themes

Earlier today, the Obama Administration proposed a budget of $10 billion for the EPA. According to the EPA’s press release, “[t]his budget heeds the president’s call to streamline and find efficiencies in the agency’s operations while supporting the seven priority areas EPA Administrator Lisa P. Jackson outlined to guide EPA’s work.”

The Budget, like Administrator Jackson's seven key themes, focused in on the following areas:

1) Cleaning up communities: This budget includes $1.3 billion to address Superfund sites; $215 million is provided to help Brownfields’ redevelopment; $27 million for EPA’s new Healthy Communities Initiative that will address community water, green and healthy schools, air toxics monitoring in at-risk communities; and encourage sustainability.

2) Improving Air Quality: This budget includes $60 million to support state efforts to implement updated National Ambient Air Quality Standards (NAAQS). EPA recently tightened NO2 standards and this budget will go, in part, toward helping states achieve these standards.

3) Building Strong State and Tribal Partnerships: This budget includes $1.3 billion for state and tribal grants.

4) Taking Action on Climate Change: This budget includes $43 million for miscellaneous efforts to address climate change.

5) Protecting America’s Waters: This budget includes $63 million for efforts to protect and restore the Chesapeake Bay and $17 million for the Mississippi River Basin. The budget contemplates investing $3.3 billion to “maintain and improve outdated water infrastructure and keep our wastewater and drinking water clean and safe.”

6) Assuring the Safety of Chemicals: Allots $56 million for chemical assessment and risk review in an effort to “ensure that no unreasonable risks are posed by new or existing chemicals.”

7) Expanding the Conversation on Environmentalism and Working for Environmental Justice: $8 million for programs dealing with environmental justice.

ASHRAE 189.1: Complimenting LEED in a Mandatory Way?

ASHRAE 189.1 was approved by ANSI on January 22, 2010, and published as a standard on January 26, 2010.

ASHRAE 189.1 is the fruit of the collaboration between the American Society of Heating Refrigerating and Air Conditioning Engineers (ASHRAE), the Illuminating Engineering Society of North America (IES), and the United States Green Building Council (USGBC). 189.1 is a new standard for the design of commercial High-Performance Green Buildings and is being finalized such that it can be adopted by states and incorporated into their building codes. This new ANSI standard, if adopted by a state, will apply to new construction and major renovation, except for low-rise residential buildings, and will address “site sustainability, water use efficiency, energy efficiency, indoor environmental quality (IEQ), and the building’s impact on the atmosphere, materials and resources.”

ASHRAE 189.1 was designed to provide a green foundation for buildings, and is set to compliment LEED requirements. Unlike LEED, however, ASHRAE 189.1 was created with an eye toward being incorporated into building codes, which would require mandatory compliance.

Many thanks to Angela Stephens for making us aware of this development!

For a preview of ASHRAE 189.1 from the ASHRAE website, click here.

Lisa Jackson's 7 Key Themes

In January 2009, at the beginning of Lisa Jackson’s tenure as EPA Administrator, she developed five goals for the EPA.

Similarly, earlier today, Ms. Jackson again identified key themes to focus the work of the EPA. She said that, in 2010, the EPA will focus on the following seven items:

Taking Action on Climate Change
Improving Air Quality
Assuring the Safety of Chemicals
Cleaning Up Our Communities
Protecting America’s Waters
Expanding the Conversation on Environmentalism and Working for Environmental Justice
Building Strong State and Tribal Partnerships

EPA will continue to “carry out [its] mission by respecting [its] core values of science, transparency and the rule of law.”

WANT TO COMMENT ON EPA'S ENFORCEMENT PRIORITIES?

EPA is soliciting comments on its preliminary list of enforcement priorities for 2011-2013 fiscal year. The Federal Register Notice, issued January 4, 2010, states that comments must be received by January 19, 2010 and the comment period will not be extended. EPA's Enforcement Blog has links to information and background on the potential priorites. In addition over 100 comments have been received since EPA first posted its blog.

Happy New Year!

Here's wishing our readers a very happy new year, full of good things to come.

As Ben Franklin said... "Be always at war with your vices, at peace with your neighbors, and let each new year find you a better person."

Happy New Year!

How Big Business Can Help Save the Earth- and increase profits too

I came across an interesting article in the New York Times titled “Will Big Business Save the Earth?” In the article, author Jared Diamond discusses his theory that “[m]ajor U.S. corporations are now a force for environmental progress” instead of the more traditional view that corporations do nothing but destroy the environment.

Diamond explains that, economically speaking, sustainable practices help a corporation’s bottom line. In the short run, he says, lower consumption of environmental resources saves money. In addition, the maintenance of sustainable resource levels, the avoidance of penalties for pollution, and a clean image save money in the long run.

He goes on to discuss the sustainable practices of market giants Wal-Mart, Coca Cola, and Chevron, and how and why they work. He mentions that:

Wal-Mart cut carbon dioxide emissions and saved $26 million per year
Coca Cola recycles plastic bottles and replaced petroleum based plastic in bottles with organic materials
Chevron recognizes that 1) "it is cheaper to to prevent [oil spills] than it is to clean them up," 2) clean practices reduce lawsuits, 3) building sustainably reduces the amount spent on future retrofitting of buildings, 4) clean operations give benefits that span across borders, and 5) environmentally sound practices improve the morale of employees.

In closing, Diamond gives a nod to the power, discipline, and determination of corporations by stating that “American businesses are going to play as much or more of a role in [environmental] progress as the government.” What do you think?

EPA: "Greenhouse Gases Threaten Public Health and the Environment"

The EPA announced yesterday that its research shows that greenhouse gases do, indeed, threaten public health and the environment. This is an unprecedented proclamation that could potentially have far-reaching implications on the regulated community.

"Science overwhlemingly shows grenhouse gas concentrations at unprecedented levels due to human activity."

The EPA's announcement covers carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride.

Clickhere to see the EPA's press release.

Coal Ash Advisory Board Issues Findings

TDEC’s Advisory Board released a report titled “Lessons Learned from the TVA Kingston Dredge Cell Containment Facility Failure: TDEC Advisory Board Recommendations for Safe Performance.” The report gives an overview of the different issues involved in the cleanup of the Kingston Facility as well as information concerning other TVA facilities.

In addition to background information, the report discusses various recommendations for the management of coal ash in the State. The Advisory Board was tasked with analyzing current regulations and determining what changes need to be implemented regarding the storage and disposal of coal ash.

Advisory Board members include:

Lyle Bentley, TDEC Division of Water Supply - Safe Dams Program, P.E.

Steve Jacoby, Benham Consultants, P.E.

Richard Kramer, Benham Consultants, P.E.

Glen Pugh, TDEC Division of Solid Waste Management

Saya Qualls, TDEC Division of Water Pollution Control, P.E.

Karrie Jo Shell, Environmental Protection Agency – Region IV, P.E.

Dr. Bruce Tschantz, Professor Emeritus, University of Tennessee – Knoxville, P.E.

The TDEC Advisory Board’s report and recommendations can be found at www.tn.gov/environment/kingston.

EPA issues Final Rule on Construction Stormwater Discharges

EPA issued its Final Rule for “Effluent Guidelines for Discharges from the Construction and Development Industry" on November 23, 2009. The rule will significantly affect construction projects that disturb 10 acres or greater at any one time. One of the most significant and most controversial provisions is a numeric limitation for turbidity. The rules require average daily turbidity for discharges to not exceed 280 Nephelometric turbidity units (Ntu). The numeric limits are not applicable if the rainfall event exceeds the two-year 24-hour storm event. The rule will be phased-in over a four year period. Sites that disturb 20 acres or more must comply beginning 18 months after the effective date of the rule. Sites that disturb 10 acres or more at one time have four years from the effective date to comply. The final rule will be effective 60 days after publishing in the federal register.

The proposed rules, which were published November 28, 2008, contained a number of options, including numeric limitations on suspended solids and turbidity, but the final rule established only turbidity as a numeric criteria. This rule is a somewhat dramatic change in direction from the current position that construction projects should be based on best management practices. EPA estimates that once this rule is fully implemented the annual cost will be approximately $953 million. Despite the inclusion of the numeric turbidity requirement, the final rules are improved over the proposed rules. The proposed rules suggested a turbidity limit of 13 Ntu. This was almost clear water, and could not be met. In addition, the proposed rules had standard sediment basin sizing and soil clay content provisions which ignored site specific conditions. Many commenters, including the Homebuilders Association of Tennessee (HBAT), opposed these provisions, and they do not appear in the final rule.

TDEC’s construction general permit expires in July 2010. It is likely that these new requirements will be placed in the revised permit at that time.

Gibson Guitar Accused of Violating Environmental Laws

Nashville’s Gibson Guitar was raided earlier this week and accused of violating federal environmental laws. The U.S. Fish and Wildlife Service presented a warrant at the guitar company’s manufacturing plant and proceeded to go through the company’s inventory. The U.S. Fish and Wildlife Service alleges that Gibson has violated the Lacey Act by manufacturing guitars with Madagascar rosewood, an endangered wood. For the full article in the Tennessean, please click here.

The Lacey Act, 16 U.S.C. §§ 3371 - 3378 provides generally that it is unlawful for any person to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law whether in interstate or foreign commerce.

A violation of the Lacey Act can result in civil penalties up to $10,000 per each violation or maximum criminal sanctions of $20,000 in fines and/or up to five years imprisonment. In addition, anything taken in violation of the Lacey Act may be subject to forfeiture as well as all vessels, vehicles, aircraft, and other equipment used to aid in the transportation or acquisition of fish or wildlife or plants.

Many thanks to Jeremy Brook for bringing this article to my attention!