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    • EPA To Move Forward With Greenhouse Gas Tailoring Rule By Maureen Harbourt In testimony before the Senate Appropriations Subcommittee on Interior and Related Agencies on March 3, 2010, Administrator Lisa Jackson of the Environmental Protection Agency indicated that EPA plans to move forward with adopting the Greenhouse Gas (“GHG”) Tailoring Rule (74 Fed.Reg. 55,292) later this month.  The Tailoring Rule is intended to ameliorate the impact of GHGs becoming “regulated pollutants” under the Clean Air Act Prevention of Significant Deterioration and Title V programs, which would otherwise be fully triggered by the enactment of another EPA proposed rule concerning GHG emissions from cars and light duty trucks. (74 Fed.Reg. 49,454)Jackson announced that the applicability threshold for coverage of sources under PSD will initially be 75,000 TPY CO2e rather than 25,000 TPY as proposed.  This threshold would apply in 2011 and 2012, but would later be reduced to lower thresholds.  She estimated that ....
    • EPA Recognizes That Baton Rouge Area Attained the 1-Hour Ozone Standard By Maureen Harbourt The February 10, 2010 Federal Register contains a notice of EPA's final decision that the Baton Rouge ozone nonattainment area “has attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS)." (The Baton Rouge area consists of the parishes of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge.) EPA found that the ambient monitoring data for 2006-2008 demonstrated attainment and noted there were no exceedances of the standard in 2009. Although this 1-hour ozone standard was revoked in 2005 and replaced with a more stringent 8-hour standard, some of the SIP requirements associated with the old 1-hour standard were continued under the Clean Air Act’s “anti-backsliding” provisions. The EPA action, known as a "Clean Data Policy Determination," formally suspends several requirements associated with the Louisiana Department of Environmental Quality’s (“LDEQ’s”) State ....
    • Office of Conservation Proposes Rules for Groundwater Evaluation and Remediation at Exploration and Production Sites By Len Kilgore and Esteban Herrera In the January 20, 2010 Louisiana Register, the Office of Conservation, Louisiana Department of Natural Resources issued a Notice of Intent to amend Statewide Order 29-B to incorporate new rules for the evaluation and remediation of groundwater conditions at exploration and production sites. The proposed rules can be found at this link.   As part of the proposal, Conservation has published a draft manual entitled “Exploration and Production Waste Site Evaluation and Remediation Procedures Manual” or “SERP Manual.”   A copy of the SERP Manual can be found here.  Conservation will accept comments on the proposal through March 8, 2010.   A public hearing on the proposal is scheduled for March 1, 2010, at 9:00 a.m. (CST).   Anyone with interests involving energy exploration and production sites should carefully review the proposal. ....
    • State of the State: Louisiana Government Active in Green Initiatives By Tokesha Collins During the past few years, the Louisiana Legislature has adopted many “green” initiatives as part of climate and energy policies. The state has placed a strong emphasis on increasing both renewable energy generation and energy efficiency. The following is a list of some of these important initiatives: The Louisiana Renewable Energy Development Act allows Grid Tied Net Metering systems throughout the state, which allows electric utility customers, who wish to install a net metering facility, to reduce their monthly electricity bill by using electricity that is generated from solar, wind, hydroelectric, geothermal, or biomass resources. See La. R.S. 51:3061-51:3063 (2003).   Tax Exemptions for Cogeneration Equipment provide tax exemptions for electric power or energy and any materials or energy sources used to fuel the generation of electric power for resale or used by an industrial manufacturing plant for self-consumption or cogeneration. See La. R.S. ....
    • Louisiana's Coming Antidegradation Policy Implementation Procedures By M. Dwayne Johnson The Louisiana Department of Environmental Quality (LDEQ) is developing written procedures to implement Louisiana’s antidegradation policy (1). These implementation procedures will significantly affect the permitting of wastewater discharges under the Louisiana Pollutant Discharge Elimination System (LPDES) program, especially the permitting of new or expanded discharges.The state antidegradation policy basically provides that state waters whose existing quality exceeds that specified in the applicable water quality standards shall be maintained at their existing high quality (2). In other words, under the policy, if the ambient concentrations of pollutants in a bayou are much lower than necessary for the bayou to meet its designated fishable/swimmable uses, the state must strive to keep the pollutant concentrations at this lower level when permitting wastewater discharges to the bayou. The antidegradation implementation procedures being developed by LDEQ will ....
    • Louisiana Legislature Prepares the Way for Carbon Sequestration by Maureen N. Harbourt Two days before the end of the 2009 Legislative Session, the Louisiana Legislature adopted the Louisiana Geologic Sequestration of Carbon Dioxide Act. Introduced as HB661, the final amended bill passed both the House and Senate unanimously. There are three major facets to the law: establishment of a comprehensive regulatory program for the control of injection, storage, and use of carbon dioxide under the auspices of the Office of Conservation within the Department of Natural Resources; establishment of liability limits for operators with transfer of liability for storage operations to the Geologic Storage Trust Fund (run by the state) after a specified time; and authority for expropriation of pipeline servitudes, storage facilities and other associated facilities necessary for carbon sequestration operations upon a determination of public convenience and necessity.The regulatory program authorizes the Commissioner of Conservation to adopt rules for injection and ....
    • EPA Issues Proposed Reporting Rule for Greenhouse Gas Emissions By Laura Hart The EPA has proposed a rule that would require mandatory reporting of greenhouse gas (GHG) emissions from large sources in the United States.  The proposed rule was signed by the EPA Administrator on March 10, 2009 and published in the Federal Register on April 10, 2009 (74 Fed. Reg. 16,448).  As proposed, the rule will require reporting of stationary source GHG emissions for the 2010 calendar year by March 31, 2011.  According to the EPA, the proposed rule is intended to “collect accurate and comprehensive emissions data to inform future policy decisions.”The reporting requirements apply to suppliers of fossil fuels or industrial GHG manufacturers of vehicles and engines, and facilities with GHG emissions of 25,000 metric tons of carbon dioxide equivalent or more per year. Based on EPA’s estimations, the threshold emission level would be equal to the annual GHG emissions from approximately 4,500 passenger vehicles. According to the EPA, ....
    • NEDA Files Petition for Rehearing on Controversial Decision (Sierra Club v. EPA) by Kyle B. Beall On April 3, 2009, the National Environmental Development Association (NEDA) filed a petition for rehearing en banc on a controversial decision (Sierra Club v. EPA) by the D.C. Circuit Court of Appeals. In that case, decided December 19, 2008, the court vacated the Startup, Shutdown, Malfunction (SSM) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. The exemption has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act. Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. The appeal stems from proposed rulemakings by the EPA in 2002, 2003 and 2006 to revise the SSM requirements.In its petition, NEDA argued that the panel’s jurisdictional ruling ....
    • D.C. Circuit's Decision Eliminates the Startup, Shutdown, or Malfunction Exemption By Maureen Harbourt and Tokesha Collins   On December 19, 2008, the D.C. Circuit Court of Appeals issued a startling ruling vacating the Startup, Shutdown, Malfunction (“SSM”) rules contained within the NESHAP General Provisions, 40 C.F.R. Part 63, Subpart A. Sierra Club v. Environmental Protection Agency (Docket Nos. 02-1135, 03-1219, 06-1215, 07-1201). The Sierra Club asked the court to strike down the SSM exemption – an exemption that has been in place since the EPA adopted the General Provisions to 40 C.F.R. Part 63 in 1994 pursuant to Section 112 of the federal Clean Air Act (CAA). Until this decision, sources were exempted from MACT technology-based emission limits if all elements of the SSM exemption were satisfied. Sources were nevertheless required by the general duty clause to minimize emissions to the greatest extent possible. In 2002, 2003 and 2006, the EPA promulgated rulemakings to revise these SSM requirements.The Sierra Club argued that these ....
    • Louisiana Mercury Risk Reduction Act - Proposed Rule Released by LDEQ By Laura Hart I.  LDEQ Recently Issued Proposed Rule Pursuant to Louisiana Mercury Risk Reduction Act to Reduce Use of Mercury-Containing Products and to Force Proper Disposal or Recycling of Mercury-Containing Products In the August 2008 publication of the Louisiana Register, the Louisiana Department of Environmental Quality (“LDEQ”) issued a proposed rule that will supplement the procedures and requirements set forth in the Louisiana Mercury Risk Reduction Act (La. R.S. 30:2571–2588) for manufacturers of mercury-added products offered for sale, users of mercury-added products in drinking water and wastewater treatment systems, and dismantlers of end-of-life productions that contain mercury-added products within Louisiana (hereinafter “Proposed Rule”). See, La. Admin. Code Tit. 33, §§ 2701, 2703, 2705, 2707, 2709, 2711, 2713, 2715, 2717, 2719, and 2721 (2008). The Proposed Rule was published after the LDEQ’s consideration of numerous ....
    • Keeping Up With Spill Prevention, Control, and Countermeasure Regulations By T. Shane Sandefer Several developments concerning the Spill Prevention, Control, and Countermeasure (SPCC) regulations occurred in 2006 and 2007. Thoughtful planning and continued tracking of these developments will be necessary to ensure compliance. EPA revised the SPCC plan requirements in 2006 to: Provide the option to self-certify SPCC Plans in lieu of review and certification by a Professional Engineer for facilities that have an aboveground oil storage capacity of 10,000 gallons or less and meet other qualifying criteria. Provide an alternative to the general secondary containment requirement without requiring a determination of impracticability for qualified oil-filled operational equipment. Define and exempt particular vehicle fuel tanks and other on-board bulk oil storage containers (called motive power containers). Exempt mobile refuelers from the sized secondary containment requirements for bulk storage containers. Remove SPCC requirements for animal fats and vegetable ....
    • Recent Daubert Challenges to Experts in Environmental Litigation By Esteban Herrera and Richard McConnell Environmental litigators face unique challenges in dealing with the expert phase of a lawsuit.  For example, a lawsuit involving alleged environmental contamination of soil, groundwater, or surface waters may require the use of experts such as environmental/civil engineers, hydrogeologists, hydrologists, geologists, soil scientists, agronomists, analytical chemists, toxicologists, environmental chemists, risk assessment experts, wetlands scientists, health physicists, biologists, and statisticians.  These experts must often present difficult and complicated technical information in a way that can be understood by judges, lawyers, and juries, who in most cases are not engineers and scientists.  In some cases, environmental litigators face the task of having to deal with many of these disciplines simultaneously.  Before any of these experts can testify at trial, however, each expert and his or her work must satisfy evidentiary ....
    • Louisiana Air Toxics Regulations Revised by LDEQ by Kyle B. Beall The Louisiana Department of Environmental Quality recently finalized revisions to the “Comprehensive Toxic Air Pollutant Emission Control Program” set forth in LAC 33:III.Chapter 51 of the Louisiana Air Quality Regulations. A final rulemaking, first initiated in September 2005, was published in the December 20, 2007 Louisiana Register and can be obtained at the following web address: http://www.deq.louisiana.gov/portal/tabid/2644/Default.aspx.  Unlike some states, Louisiana has its own air toxics program, which applies to major sources of “toxic air pollutants” as defined in LAC 33:III.5103. State toxic air pollutants include all federal “hazardous air pollutants” set forth in Clean Air Act § 112, and also 13 other pollutants, including ammonia, sulfuric acid, nitric acid, and hydrogen sulfide. The final rulemaking, published in AQ-256, provides for the following revisions: ....
    • European Union to Cut Greenhouse Gas Emissions by Twenty Percent by 2020: European Commission Issues Climate Change Policy Package by Laura L. Hart The European Commission recently released a preliminary package of broad climate change policies that would affect industry, energy generation and transportation in the European Union. The goals of the climate change policies are to: (1) to reduce greenhouse gas emissions by twenty percent (20%) below 1990 levels by the year 2020; (2) to increase the proportion of power generated by renewable resources to twenty percent (20%) of total energy consumption; and (3) to institute a mandate that ten percent (10%) of the fuel consumed by the European vehicles to be from biofuel sources.             The proposed measures include: an improved emissions trading system to cover all major industrial emitters, such as power plants, and to include more greenhouse gases such as nitrous oxide and perfluorocarbons; an improved emissions trading system that allows firms in one European Union country to buy allowances in any ....
    • EPA Adopts Final Rule to Clarify "Reasonable Possibility" Recordkeeping and Reporting Requirements by Maureen N. Harbourt On December 21, 2007, EPA published notice of its adoption of a final rule to “clarify” the recordkeeping and reporting requirements for projects that do not constitute a major modification under the prevention of significant deterioration (“PSD”) and nonattainment new source review (“NNSR”) programs when calculated by the baseline actual emissions to projected actual emissions (“BAE to PAE”) methodology, but which have a “reasonable possibility” to result in a significant emissions increase.  72 Fed. Reg. 72607. The final rule defines “reasonable possibility” as either: 1) where the difference between BAE and PAE is > 50% of the significance level for the regulated pollutant; or 2) where the difference between BAE and PAE prior to subtraction of the emissions excluded from PAE through the “capable of accommodating/demand growth” exclusion is > 50% of the ....
    • First Circuit Decision to Potentially Affect Air Permitting in Louisiana by Kyle B. Beall On August 22, 2007, the Louisiana First Circuit Court of Appeal rendered a decision – In the Matter of Waste Management of Louisiana, L.L.C. (Docket No. 2006 CA 1011) – that may affect the Louisiana Department of Environmental Quality’s approval of previous pollution control projects under PSD/NNSR provisions. Appellants LEAN and Concerned Citizens of Livingston Parish asked the court to reverse the lower court’s affirmation of LDEQ’s issuance of a Title V air permit issued to Woodside Landfill in 2004. In 2003, LDEQ exempted from PSD review a pollution control project to install a gas collection and control system and bioremediation area at the landfill. The later-issued Title V permit included conditions for the flare that was installed as part of the project. It is unclear from the facts stated in the opinion whether the original 2003 authorization-to-construct the project or the 2004 permit also authorized an ....
    • Boiler MACT, Now It's Gone! by Maureen N. Harbourt In June, we reported that a three judge panel of the District of Columbia Court of Appeal had issued a decision in NRDC v. EPA, Docket 04-1385, to vacate both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”).  That report indicated that the court’s decision could be stayed by a timely request for hearing or a stay order. The deadline to request a rehearing expired on July 23,2007, and the deadline to request a stay expired July 30, 2007. As no party requested a rehearing or a stay by those deadlines, the clerk of court issued the mandate to EPA on July 30, 2007. The mandate directs EPA to vacate the Boiler MACT and the CISWI Rule and to take further action consistent with the court’s opinion. EPA will publish a notice ....
    • Boiler MACT Rule Vacated, But Not (Yet) Gone! by Maureen N. Harbourt On June 8, 2007, a three judge panel of the District of Columbia Court of Appeal issued a decision in NRDC v. EPA, vacating both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”). The decision will not become effective (meaning the CISWI and Boiler MACT Rules are still effective), until legal delays for rehearing and/or appeal have run. Moreover, two of the three judges wrote concurring opinions which strongly suggest that a stay order, with conditions, is likely to be issued if the parties so request it. With the September 13, 2007, Boiler MACT compliance deadline looming, EPA needs to provide prompt guidance to the thousands of regulated entities on their compliance obligations in light of the decision.The two rules were addressed in the ....
    • Louisiana Adopts Procedure and Standards For "Contained-Out" Determinations For Contaminated Environmental Media by Maureen N. Harbourt In final rules adopted on March 20, 2007, the Louisiana Department of Environmental Quality (“LDEQ”) adopted amendments to the Louisiana Hazardous Waste Rules to create a procedure by which an applicant may obtain a determination that contaminated media (soil/sediment, groundwater, and/or surface water) do not contain a hazardous waste and may be managed as nonhazardous. This procedure does not establish clean-up standards; instead, it will be used to determine whether hazardous waste rules apply to the management of such media when removed from their location or otherwise managed.The procedure is known as a Nonhazardous Environmental Medium (“NHEM”) Determination. It is intended to apply when hazardous waste is the suspected source of the contamination. The rule does not address the question of any presumption as to the source of the contamination (for this, see EPA’s 1998 Guidance on Management of Remediation Waste ....
    • New Trace Benzene Study To Be Published by Erich P. Rapp During a presentation at the Defense Research Institute’s Toxic Torts and Environmental Law Seminar in New Orleans on Friday March 9, 2007, Dr. Pamela Williams of ChemRisk, Inc. indicated that she was preparing to publish a study on the potential for exposure to benzene from products containing trace (less than 0.1%) levels of benzene. Her study will likely conclude that measured airborne concentrations of benzene during the handling or use of petroleum-derived products in the United States have typically not exceeded workplace standards since at least the early 1980's. The Williams’ study will also likely conclude that indoor air modeling shows that workplace exposures are likely to be minimal during the application of products containing trace levels of benzene. Finally, the Williams study will likely conclude that petroleum-derived products containing trace levels of benzene are not expected to produce 8-hour TWA airborne concentrations that exceed ....