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This column provides highlights of federal statutory,
regulatory, case law, and guidance developments of relevance to Florida
practitioners. If you are aware of a federal legal development which
you think should be shared with your colleagues, please either email it
to asht0364@mlb.com or fax it to
David Ashton at 305-579-0321.
EPA Issued its Long-awaited Final Compliance Assurance Monitoring (CAM) Rule under the CAA. The controversial rule, which has been the subject of debate since 1993, will impose monitoring requirements on certain large pollutant-specific emission units at facilities that are required to have Title V permits. Title V permits are required for all major sources of regulated air pollutants, which include VOCs, NOx, SO2, particulate matter, and over 180 hazardous compounds. The CAM Rule will result in the generation of additional data which the government (and citizens groups) assert may be used as evidence of noncompliance with CAA standards. The key requirements of CAM, codified at 40 CFR Part 64, are (1) to monitor compliance in a manner sufficient to yield data that provides a “reasonable assurance of compliance” with underlying applicable requirements of the CAA, and that allows a source to make an informed annual compliance certification under its Title V permit, (2) to take necessary corrective actions in response to monitoring data indicating excursions or exceedances of relevant parameters or emission limits, (3) to report on these monitoring results, and (4) to maintain records of such monitoring consistent with Title V permit requirements. CAM applies to individual emissions units at Title V facilities that use control devices to achieve compliance with emissions limitations or standards. To be subject to the rule, the unit must have potential emissions, without considering any reductions from controls, that equal or exceed the relevant major source threshold for that pollutant. Earlier versions of the rule had targeted smaller emissions units. The final CAM Rule does not apply to emissions limitations or standards proposed by EPA after November 1, 1990 (such as New Source Performance Standards or National Emission Standards for Hazardous Air Pollutants). Sources with units subject to CAM must prepare plans that (among other elements) establish ranges or designated conditions of the indicators to be monitored. CAM plans must provide that at least four data points per hour be collected for each parameter monitored at emissions units with potential emissions (considering reductions from controls) that are equal to or exceed the major source threshold for that pollutant. Covered sources must take prompt corrective action in response to excursions from indicator ranges or exceedances of emission limitations or standards. Permitting authorities may under certain circumstances require a source to develop and implement a quality improvement plan or QIP. QIPs must be in writing, must include procedures for evaluating control performance problems and, as appropriate, for improved maintenance practices, process operation changes, improvements to control methods, and more frequent or improved monitoring. The CAM Rule will be implemented through the Title V permit program in a phased approach. Sources with units having emissions that exceed the major source threshold for a given pollutant (considering controls) must submit proposed CAM monitoring by April 20, 1998, unless by that date the permitting authority has determined that the facility's Title V application is complete. Proposed CAM monitoring for other units subject to the rule generally is not required to be submitted until Title V permit renewal. However, if a source applies for a significant Title V permit revision after April 20, 1998, the application must contain proposed CAM monitoring for any emission unit subject to the CAM Rule and covered by the proposed permit revision. The compliance certification provision of the rule requires that sources identify CAM excursions and exceedances as “possible exceptions to compliance.” EPA's preamble to the final rule also discusses a number of issues addressing the interrelationship between CAM, enforcement, and EPA's recently adopted, “any credible evidence” rule. Sources subject to CAM will need to design CAM plans, monitoring protocols, and associated indicator ranges carefully to minimize the potential to give rise for inaccurate CAM data or inappropriate enforcement proceedings by government or citizens groups. The CAM Rule became effective November 21, 1997. 62 Fed. Reg. 54,900 (Oct. 22, 1997) revising 40 CFR Parts 70 and 71. EPA Establishes New Source Performance Standards (NSPS) and Emission Guidelines (EG) for Hospital, Medical and Infectious Waste Incinerators (HMIWI). The NSPS and EG establish emission limits for particulate matter, opacity, sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, dioxins and dibenzofurans, and fugitive ash. Both the NSPS and EG provide emission limits, operator training requirements, siting requirements, testing and monitoring requirements, and reporting and recordkeeping requirements. The NSPS apply to all HMIWI that commenced construction after June 20, 1996, and all existing HMIWI that commence modification after March 16, 1998. In contrast, the EG are not direct federal requirements. Rather, they require states to develop plans to control emissions from HMIWI built on or before June 20, 1996. The state plan must be at least as protective as the EG. Under the regulation, HMIWI applies to incinerators at hospitals that burn hospital wastes and other incinerators that burn 10 percent or more hospital waste and/or medical/infectious waste. Municipal waste incinerators with capacities greater than 250 tons per day are not subject to the standards and guidelines. In addition, pathological waste, low-level radioactive waste, and chemotherapeutic waste are excluded from regulation under the standards and guidelines. Crematories are not subject to the HMIWI regulations unless they burn waste that meets the definition of medical/infectious waste or hospital waste. The regulations require that new HMIWI owners and operators collect and submit significant amounts of information. Accordingly, EPA has developed an Information Collection Request (IRC) document under the Paperwork Reduction Act. The comment period on the IRC document closed November 14, 1997. 62 Fed. Reg 48,348 (Sept. 15, 1997). EPA Issued a Notice Deferring Public Comment on Proposed Title V Operating Permits Program (40 C.F.R. Part 70) Regulatory Revisions. EPA will revise the draft regulations and provide notice in the Federal Register of an opportunity for public comment. 62 Fed. Reg. 36,039 (July 3, 1997). EPA Proposed Revisions to New Source Performance Standards (NSPS) For Nox Emissions from New Fossil-fuel Fired Electric Utility and Non-Utility Steam Generating Units. The revised NSPS standards are designed to reflect best demonstrated technology (BDT). EPA also proposes to allow owners and operators of affected units to report quarterly NOx, SO2 and opacity emissions electronically, in lieu of submitting written compliance reports. The comment period ended September 8. 62 Fed. Reg. 36,948 (July 9, 1997). EPA Issued Clarifying Amendments to the National Emissions Standards for Hazardous Air Pollutants (NESHAPS) for Group I and IV Polymers and Resins. Among other issues, the rule clarifies that the phased implementation approach provided under the equipment leak provisions of the Hazardous Organic NESHAP (HON) also are applicable to the equipment leak provisions under the Group I and Group IV Polymers and Resins NESHAPs. 62 Fed. Reg. 37,720 (July 15, 1997). EPA Published a Draft List of Hazardous Air Pollutant (HAP) Source Categories under Section 112(c)(6) of the CAA. Section 112(c)(6) requires that EPA list categories of sources that account for at least 90 percent of the aggregate emissions of alkylated lead compounds, hexachloro-benzene, polycyclic organic matter, mercury, PCBs, and certain furans and dioxins. EPA believes that in order to meet the requirements of this provision, the following source categories would require HAP regulation: gasoline distribution (aviation), open burning of scrap tires and wood treatment/preserving. Other source categories that contribute to emissions of Section 112(c)(6) HAPs are not included because they are subject to other CAA regulations. Once the list is final, EPA will perform further emission and control analyses to determine regulatory requirements for these source categories, which the CAA requires to be in place by 2000. 62 Fed. Reg. 33,625 (June 20, 1997). EPA Issued a Notice of Proposed Determination under Section 183(e) of the CAA That Control Technique Guidelines (CTGS) Are Substantially as Effective as National Regulations in Reducing Volatile Organic Compound (VOC) Emissions in Ozone Nonattainment Areas from Wood Furniture, Aerospace, and Shipbuilding and Ship Repair Coatings. Section 183(e) of the CAA requires that EPA list for regulation those consumer and commercial products accounting for at least 80 percent of VOC emissions from the use of such products in ozone nonattainment areas. Section 183(e) also provides that EPA may determine that CTGs are substantially as effective as regulations in controlling VOC emissions from affected source categories. EPA published its consumer and commercial products category list in 1995, and is required to regulate certain product categories by 1997, including wood furniture, aerospace, and shipbuilding and ship repair coatings. EPA's proposed determination would allow EPA to issue CTGs for these source categories in lieu of national regulations developed under Section 183(e). The comment period ended October 21. 62 Fed. Reg. 44,672 (Aug. 22, 1997). EPA Issued Proposed Rules That Would Correct and Amend the Hazardous Organic NESHAP (HON), Revises Chemical Process List. The HON regulates hazardous air pollutants (HAPs) at facilities in the synthetic organic chemical manufacturing industry with major HAP sources. EPA proposes to clarify the HON's definition of enhanced biological treatment system or process and to revise other portions of the HON to reflect this change. This action also proposes to revise the compliance demonstration procedures for biological treatment units to remove restrictions on the use of batch test procedures. These proposed changes are relevant to the HON's wastewater control provisions. In a separate development, EPA proposed to make production of tetrahydrobenzaldehyde (THBA) and crotonaldehyde subject to the HON, and to delete acetaldol from the list of HON-regulated chemical production processes. Owners and operators of THBA and crotonaldehyde processes would have one year from the date of final rule adoption to comply with the HON's equipment leak provisions and three years from final rule adoption to comply with other applicable HON requirements. The comment periods ended September 22. 62 Fed. Reg. 44,608, 44,614 (Aug. 22, 1997). EPA Deleted Certain Hydrochloric Acid Solutions from the List of Regulated Substances under its Accidental Release Prevention Program at Clean Air Act (CAA) Section 112(r) and Announced Clarifying Interpretations. EPA's final rule deletes hydrochloric acid solutions of less than 37 percent hydrogen chloride concentration as part of a settlement resolving a private party challenge to the list. Previously, hydrochloric acid solutions of 30 percent or greater were regulated. The rule also vacates related provisions of the accidental release prevention program. EPA has separately published clarifying interpretations of its regulations implementing Section 112(r). These interpretations pertain to calculation of the threshold quantities for listed substances regulated under the program and focus on mixtures and aqueous solutions. Other interpretive clarifications address the relationship between the accidental release prevention program and certain reporting requirements under TSCA Section 8(d) and 8(e). 62 Fed. Reg. 45,129, 45,133 (Aug. 25, 1997). EPA Amended the Emission Guidelines and New Source Performance Standards for Existing Municipal Waste Combustor (MWC) Units in Response to a Decision by the U.S. Court of Appeals for the District of Columbia in Davis County Solid Waste Management and Recovery District v. EPA, 108 F. 3d 1454 (D.C. Cir. 1997). In 1995, EPA promulgated emission guidelines and performance standards for existing MWCs at plants with aggregate plant combustion capacities greater than 39 tons per day (40 CFR Part 60, Subparts Cb and Eb). In Davis, the court issued an order vacating these regulations as they apply to MWC units with the capacity to combust 250 tons or less of municipal solid waste (MSW) per day and all cement kilns combusting MSW. In two direct final rules, EPA has now limited the applicability of the MWC regulations to units combusting more than 250 tons of MSW per day. This change requires a recalculation of MACT for these units, resulting in more stringent emission guideline limits for hydrogen chloride, sulfur dioxide, nitrogen oxides and lead. MACT emission limits for other pollutants remain unchanged. EPA's action also excluded MSW-firing cement kilns while the Agency reconsiders this issue. The amendments became effective on October 24. 62 Fed. Reg. 45,115, 45,123 (Aug. 25, 1997). EPA Extended All Interim Approvals of State Title V Operating Permit Programs up to October 1, 1998, by Revising Appendix a to 40 CFR Part 70. According to EPA, this action will allow states to combine the program revisions necessary to correct interim approval deficiencies with program revisions required to implement changes to Part 70 (expected to be issued by mid-summer 1998). States and local permitting authorities had expressed concern that they would otherwise be required to revise their programs twice: once to address the deficiencies described in EPA's interim approval and again to implement changes required by future revisions to EPA's Part 70. EPA's extension was prompted by further delays in promulgating Part 70 revisions and the fact that a number of interim approvals will expire before Part 70 is revised, thus denying states the opportunity to combine program revisions. 62 Fed. Reg. 45,732 (Aug. 29, 1997). EPA Announced its Schedule for the next
Periodic Review of Air Quality Criteria and National Ambient Air Quality
Standards (NAAQS) for Particulate Matter (PM). EPA's schedule
is driven by requirements of the federal CAA and the Presidential Memorandum
on implementation of the newly revised NAAQS for ozone and PM (published
on July 18, 1997), which calls for completion of the
next PM review by 2002. EPA is to complete its review prior to any areas
being designated as nonattainment under the newly established standards
for fine particles (PM2.5) and prior to the imposition of new controls
related to the revised standards. EPA intends to prepare a PM criteria
document development plan beginning in November 1997. 62 Fed. Reg. 55,201
(Oct. 23, 1997).
The Third Circuit Held That a District Court Lacks Jurisdiction to Hear a Challenge to a Remedial Action in a Citizen's Suit Brought Pursuant to Section 159 of CERCLA When the Remedial Action Has Not Been Completed by EPA (Overruling its Prior Opinion in United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3rd Cir. 1994)). The court left intact the alternative holding of Princeton Gamma-Tech that a district court has jurisdiction to hear remedial challenges regardless of whether the remedy has been completed when the United States has instituted a cost recovery action. Clinton County Commissioners v. United States EPA, No. 96-7683 (3rd Cir. June 26, 1997). The Fifth Circuit Held That CERCLA Does Not Restrict Recovery of Response Costs to Persons with a "Protectable Interest" in a Cleanup Site. The court found that neither CERCLA's text nor its legislative history demonstrate congressional intent that CERCLA include a "protectable interest" requirement. OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574 (5th Cir. 1997). The Fifth Circuit Held That Government Monitoring or Oversight of a Private Party Remedial or Removal Action Is a Response Cost for Which Private Parties Are Liable under CERCLA. In so doing, the court rejected the Third Circuit's conclusion that the government's oversight costs are not costs for which private parties may be held liable under CERCLA. The court reasoned that CERCLA's language and liability scheme permit the government to recover the cost for oversight of private party response actions. United States v. Lowe, No. 96-20817 (5th Cir. July 31, 1997). The Second Circuit Held That Prior Owners and Operators Are Not Liable for Passive Migration under CERCLA. The court reasoned that CERCLA's language, structure and purposes demonstrated congressional intent that prior owners or operators not be held liable for passive migration. Accordingly, the court determined that CERCLA's definition of "disposal" did not include passive migration. ABB Indus. Sys., Inc. v. Prime Technology, Inc., No. 970, Docket 96-7869 (2d Cir. July 25, 1997). The Third Circuit Reaffirmed the Use of the "Actual Control" Test in Determining the CERCLA Operator Liability of Shareholders of a Corporation That Had Owned Wood Treatment Plants. The court further found that a successor corporation that expressly assumed all liability of its predecessor more than 25 years prior to the enactment of CERCLA was liable as an owner. Aluminum Company of America v. Beazer East, Inc., No. 96-3420 (3d Cir. Sept. 2, 1997). The Eleventh Circuit Authorized the Award of Attorney's Fees under the Equal Access to Justice Act in a CERCLA Case Against the U.S. Navy. However, the court remanded for a reduction in the amount of fees based on the plaintiffs' relatively minimal CERCLA recovery. Andrews v. United States, No. 96-2730, 96-2764 (11th Cir. Sept. 19, 1997). The District Court for the Eastern
District of Arkansas Held a Company Jointly and Severally Liable under
CERCLA as an Arranger for the Disposal of Hazardous Substances Based on
a Tolling Agreement Following a Jury Trial. The court found that
(1) the company owned the material it supplied to a manufacturer for processing
into herbicides; (2) the company retained an ownership interest in
the material during the processing stage; (3) the company owned the processed
herbicides; (4) generation of hazardous substances was inherent during
processing of the material; and (5) the process resulted in the release
of hazardous substances. The court rejected the company's divisibility
of harm defense, reasoning that the company had proffered insufficient
evidence demonstrating a reasonable basis for determining the contribution
of each PRP to the contamination at the site. The court further found that
it was bound by the jury's determination with respect to contribution claims
between the parties because the parties had agreed to a jury trial, but
found that it was not bound by the jury's findings with respect to the
elements of a section 107 action because there is no right to a jury trial
in that type of action. United States v. Vertac Chemical Corp., Nos. CIV.
LR-C-80-109, LR-C-80-110 (E.D. Ark. May 21, 1997).
The District Court for the Middle District of Pennsylvania Rejected Arrangers' Claimed Ignorance of an Owner/Operator's Operations and Partially Allocated Response Costs to the Arrangers. The arrangers contended that they should be absolved of response cost liability because they did not know (1) what the owner/operator would do with the instrumentality causing environmental contamination, (2) how the owner/operator operated its facility, or (3) that the state environmental agency had accused the owner/operator of violating the environmental protection laws. Gould, Inc. v. A&M Battery & Tire Service, No. 3:CV-91-1714 (M.D. Pa. Sept. 4, 1997). President Clinton Signed Fiscal 1998 Appropriations Bill That Will Provide Additional Funding to Accelerate Hazardous Waste Cleanups If CERCLA Is Reauthorized by May 15, 1998. On October 27, 1997, President Clinton signed into law a fiscal 1998 appropriations bill for veterans, housing and independent agencies that includes $7.36 billion for the Environmental Protection Agency. In a compromise struck between Congressional conferees and the Clinton Administration, the signed bill provides an additional $650 million over the next two years to accelerate the pace of hazardous waste cleanups if Superfund is reauthorized by May 15, 1998. The Fourth Circuit Interpreted the RCRA Section 7002(a)(1)(B) "Imminent and Substantial Endangerment" Standard to Require an "Immediate" and "Serious Threat of Harm." A Black & Decker facility constructed a groundwater recovery and treatment system, which included charcoal filtering for a well supplying the Leisters' dairy farm. Black & Decker also developed a soil remediation plan to address the trichloroethylene and tetrachloroethylene contamination. The Leisters sued for injunctive, declaratory and monetary relief on various grounds, including RCRA § 7002(a)(1)(B). The District Court granted summary judgment on the RCRA count. The Court of Appeals upheld the grant of summary judgment, interpreting "an endangerment [as] 'imminent' if 'it threatens to occur immediately'" and as "'substantial' if 'it is serious.'" The Court agreed that there was no threat to public health from most direct pathways for exposure, because the Leisters' drinking water well was being filtered. Leister v. Black & Decker (U.S.) Inc., No. 96-1751, 1997 U.S.App. LEXIS 16961 (4th Cir. July 8, 1997). The District Court for the District of Oregon Extended the Supreme Court's Decision in Meghrig v. KFC Western, Inc. To Bar Damage Actions under RCRA Section 7002(a)(1)(B) for Ongoing Remediation. Express Car Wash Corporation was engaged in voluntary remediation on its property pursuant to an agreement with the Oregon Department of Environmental Quality. The agreement was entered into one year before filing suit. Express sought to recover damages for the cleanup prospectively from Irinaga Brothers, Inc. and Chevron, U.S.A., the prior owners. The court granted summary judgment on the RCRA claim because § 7002(a)(1)(B) provides only for injunctive relief, not for damages. The court determined that a plaintiff is not entitled to recover "those response costs that 'it will continue to incur' when remediation systems or activities are in place or substantially in place at the time of suit." The Court thus extended the decision of Meghrig v. KFC Western, Inc., 116 S.Ct. 1251 (1996), which held that Section 7002(a)(1)(B) cannot be used to recover for response costs incurred wholly prior to filing suit. Express Car Wash Corp. v. Irinaga Brothers, Inc., No. 96-696-JO, 1997 U.S. Dist. LEXIS 9086 (D. Or. June 4, 1997). The District Court for the Eastern District of Wisconsin Rejected Application of a Statute of Limitations and the Statutory Bar for Imminent and Substantial Endangerment Actions Brought under RCRA Section 7002(a)(1)(B). A-C Reorganization Trust and The Edison M. Boerke Trust sought to amend their complaint brought under CERCLA to allege a claim under RCRA § 7002(a)(1)(B). Certain defendants and third-party defendants opposed the motion to amend on various grounds, including the five-year federal statute of limitations of 28 U.S.C. § 2462 and the § 7002(a)(1)(B) bar when EPA is involved in removal or remedial action at the site. The court noted that RCRA contains no statute of limitations and held that suits brought under § 7002(a) (1)(B) are solely equitable in nature. The court thus rejected defendants' arguments that the five-year federal civil penalty statute of limitations or any other limitations period should apply. Nonetheless, the court suggested that the equitable doctrine of laches might be applicable. The court also rejected defendants' claim that CERCLA barred amendment of the complaint. The court noted that EPA had not undertaken any removal or remedial action and that § 7002(a)(1)(B)(iv) prohibits imminent and substantial endangerment claims only to the extent that they are within the "scope and duration" of a CERCLA § 106 administrative order. The court found that an existing consent order did not currently address all aspects of contamination alleged in the complaint and thus permitted amendment. A-C Reorganization Trust and The Edison M. Boerke Trust v. E.I. DuPont De Nemours & Co., et al., No. 94-C-574, 1997 U.S. DIST. LEXIS 9549 (E.D. Wisc. June 27, 1997). EPA Proposed Modifications of the NPDES Storm Water Multi-Sector General Permit (MSGP) for Industrial Activities and Termination of the NPDES Storm Water Baseline Industrial General Permit. EPA provided notice that it intends to terminate the baseline industrial general permit (with limited exceptions) upon final modification of the MSGP. The MSGP would be modified to cover previously excluded facilities. As a result, most industrial facilities previously permitted under the baseline permit would be required to seek coverage under the modified multi-sector permit or apply for an individual permit. 62 Fed. Reg. 37,448 (July 11, 1997). The Third Circuit Dismissed a CWA Citizen Suit, Vacating a $2.6 Million Verdict, Because Plaintiffs Failed to Demonstrate Defendant's Illegal Discharges Injured Them and Thus Lacked Standing under the CWA. In an earlier proceeding, the court had affirmed the district court's ruling that the groups had standing. However, on appeal following the penalty phase, the court revisited the standing issue. The standing issue, it stated, must be resolved at every stage of litigation to ensure that reviewing courts have jurisdiction. The defendant presented evidence that there was no environmental harm in the penalty phase of the trial, and the district court found that the receiving waterway had not been damaged by defendant's violations but nonetheless proceeded with the penalty phase. The circuit court ruled that plaintiff groups lost standing as soon as it became clear that the CWA violations had not harmed the receiving waterway. The court found no injury, no threat of imminent impending injury, and to the extent any injury could be found to exist, no difference between the harm suffered by the citizen group and that suffered by the public at large. Finally, the court found no standing for claims based on monitoring and reporting violations, because any injury caused was not redressable. Further, according to the court, even if reports had been correctly filed, the citizen suit would still have been dismissed, because the discharges failed to injure or cause any threat or injury to the citizen's groups members. Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 1997 WL 434864, No. 96-5049, (3rd Cir. Aug. 5, 1997). The Fourth Circuit Held Cleanup Damages for Spills Limited to Those Available under the Oil Pollution Act. The court ruled that the Section 1004(a)(2) liability cap in the OPA prevented a ship owner from recovering more than $500,000 from a tug boat operator who was responsible for causing a fuel oil spill outside Norfolk, Virginia. National Shipping Co., the owner of the cargo vessel, could not recover cleanup costs or damages above the cap from Moran Trade Corp., the tug boat operator, under state common law theories or exceptions to the OPA liability cap. Because the tug operator's liability stemmed from the ship owner's liability under the OPA, not from state common law or statutory claims, the court held the ship owner could not seek recovery above the OPA cap under common law theories. Further, the court stated that National Shipping had not shown Moran had committed gross negligence or willful misconduct or violated federal operating standards, and therefore could not fit into any exceptions to the OPA liability cap. National Shipping Co. of Saudi Arabia v. Moran Corp. of Delaware, No. 96:1741 (4th Cir. Sept. 9, 1997). The Third Circuit Ruled That Cutting off Pieces of a Barge and Dumping Them in Navigable Waters of the United States Without a Permit Constitutes the Discharge of Pollutants from a Point Source in Violation of the Clean Water Act. The court ruled that barges are “floating craft” expressly included within the definition of “point source.” According to the court, the deliberate amputation of a portion of the vessel did not destroy its suitability as a point source. U.S. v. West Indies Transport, Inc., Nos. 96-7603, 96-7604, 96-7065, 1997 WL 632042 (3d Cir. 1997). OSHA Extended the Start-up Date for a Second Time for Most Provisions of the New Methylene Chloride Standard for Larger Employers. The new date is December 21, 1997. The start-up date for initial monitoring and engineering controls, which was set at September 7, 1997, remains unchanged, as do the later start-up dates for employers with fewer than 20 employees. OSHA also extended the start-up date for initial monitoring for foam manufacturers with 20 to 99 employees by 45 days to December 21, 1997. 62 Fed. Reg. 54,382 (Oct. 20, 1997). The Research and Special Programs Administration (“RSPA”) Revised Recently Promulgated Labeling and Placarding Requirements and Postponed Compliance for a Year. In a final rule published on January 8, RSPA amended the hazard communication requirements to impose new labeling and placarding requirements on materials that are poisonous by inhalation (PIH), require transport vehicles and freight containers containing large quantities of hazardous materials in non-bulk packages to display identification numbers, and reduce the upper weight limit for the alternative use of the "Dangerous" placard. Responding to industry requests, RSPA has postponed the effective dates of the rulemaking until October 1, 1998, and October 1, 1999 for PIH labeling requirements. RSPA also has clarified certain PIH labeling and placarding requirements. The most recent rulemaking retains the October 1, 2001, compliance date for the new PIH placards, thereby providing the United Nations with an opportunity to adopt international standards in the interim. 62 Fed. Reg. 39,398 (July 22, 1997). EPA proposed a CERCLA Settlement Methodology
for Resolving the Potential Liabilities of Owner/Operators, Generators
and Transporters at Municipal Solid Waste Sites That Accept Municipal Solid
Waste and Other Material, Including Industrial Waste. For generators
and transporters, the proposed guidelines would calculate settlement offers
based as a unit cost formula. For owners and operators, i.e., municipalities,
the proposed guide-lines would establish 20 percent of total response costs
as a baseline. The public comment period on the proposed co-disposal site
guidelines closed on August 25. 62 Fed. Reg. 37,231 (July 11, 1997).
EPA Issued Final Guidance on Federal Liability Waivers for Voluntary Cleanups at Brownfields Sites Performed under State Programs. The guidance document, Developing Superfund Memoranda of Agreement Language Concerning State Voluntary Cleanup Programs, was signed August 1. The guidance outlines what assurances EPA will give to participants in state voluntary cleanup programs that they are unlikely to face future Superfund enforcement action once a cleanup is approved by a state. EPA can provide such assurances through Superfund Memoranda of Agreement (MOA) with states. The guidance is intended primarily to help EPA regional offices evaluate the adequacy of a state's voluntary clean-up program and determine whether a negotiated MOA should acknowledge the state program. If the MOA makes such an acknowledgment, the region and the state can agree that the EPA will not exercise cost recovery authority and does not generally anticipate taking action at sites addressed under the state program. Under the two tier classification system established by the guidance, a contaminated site is either high-risk (Tier I) or low-risk (Tier II). EPA outlines a "Tier I/II Designation and Screening Process" that private parties can use to determine whether a contaminated property would be considered a Tier I or Tier II site. According to the EPA, the five major steps involved in evaluating a property for Tier I or Tier II status coordinate to a large degree with the private due diligence process. The five steps are: 1.) exclusion; 2.) Phase I; 3.) expanded Phase I; 4.) limited sampling; and 5.) extensive sampling. Each step involves gathering sufficient information to determine whether the site should be classified as Tier II or whether more information is needed. Generally, Tier I sites are those more likely to require long-term or emergency clean-up under Superfund. Tier I sites involve a release of a hazardous substance, pollutant, or contaminant that has caused or is likely to cause human exposure or contamination of a sensitive environment. When contamination of drinking water, surface water, air or soils have caused or are likely to cause exposure to nearby populations, Tier I classification will typically apply. Sites listed on the National Priorities List (NPL) are classified as Tier I. Tier I sites are not eligible for inclusion within the scope of an MOA. They will be dealt with, according to the guidance, on a site specific basis. Tier II low-risk sites are those that are less likely to require long-term or emergency work under Superfund. Tier II includes sites that: 1.) do not qualify for response under Superfund (e.g., CERCLA petroleum exclusion sites); 2.) score below 28.5 based on EPA's Hazardous Ranking System (HRS); 3.) are being adequately addressed under other federal statutes (subject to certain restrictions); or 4.) otherwise do not meet the criteria for Tier I sites. According to the guidance, EPA "does not generally anticipate" pursuing cost recovery for low-risk sites. However, the EPA could still address a site under certain conditions, including 1.) a request from the state for federal action; 2.) a determination by EPA that the contamination presents an imminent and substantial endangerment; or 3.) the discovery of new conditions at the site that require federal action. Additionally, the guidance requires EPA regions to review existing and new MOAs with states three years after the MOAs were first signed. The guidance establishes six criteria state voluntary cleanup programs must meet to receive or maintain their agreements with EPA. These key ingredients include investigative and remedial procedures, cleanup criteria appropriate to sites, state sign-off conditions and procedures, and liability provisions. This guidance is available at http://www.epa.gov/swerosps. EPA Published Draft Guidance for Industries Subject to Toxic Release Inventory (TRI) Requirements. EPA recently expanded the scope of EPCRA to require seven additional industries to comply with the toxic chemical release reporting requirements in § 313. (62 Fed. Reg. 23,834 (May 1, 1997). Effective October 1, these industries must evaluate their chemical use and management activities to ascertain potential reporting responsibilities. EPA has drafted guidance to assist the newly regulated community in complying with these requirements. Guidance documents are available for the following facilities: chemical distribution, petroleum bulk storage, solvent recovery, RCRA Subtitle C TSD, metal mining, and coal mining. The Research and Special Programs Administration (“RSPA”) Issued Guidance on Leak Testing for Cargo Tank Gas Delivery Systems. Under the advisory guidance, operators of large cargo tanks that transport compressed gas can test the leak-proof quality of their delivery systems by charging their cargo tank pumps and hoses with gas before opening the valves on their customers' tanks. RSPA issued the guidance in response to a petition by the Fertilizer Institute for reconsideration of a final rule that set conditions for transport by cargo tank of compressed gas. The institute raised concerns that pressure testing could damage cargo tank pumps and the units that provide the pumps with power. 62 Fed. Reg. 49,171 (Sept. 19, 1997). If you require copies of any of these materials, please E-mail a request to asht0364@mlb.com. --------------------------------- David Ashton practices in the Environmental Practice Group of Morgan, Lewis & Bockius, LLP and is located in the Miami office. He has a J.D. from the University of Miami and an LL.B. from Exeter University, England.
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Federal Highlights