Section 106(b)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) provides that any person who receives and complies with the terms of an Administrative Order, may within sixty days after completion of the required action, petition for the reimbursement for the reasonable costs of such action, plus interest.  The federal Environmental Appeals Board (“EAB”) has stated that there are four prerequisites that must be met to be eligible for a reimbursement request.  They include:

                (1) complied with the order;
                (2) completed the required action;
                (3)  submitted the petition within sixty days of completing the action; and
                (4)  incurred costs responding to the order.

One of those factors was discussed in the April, 2012, reimbursement request decision issued by the EAB In re:  Safe Environmental Corporation of Indiana – CERCLA § 106(b) Petition No. 12-01.

The Safe Environmental Corporation of Indiana (“Safe Environmental”) had filed a petition with EAB seeking reimbursement for the costs it had incurred in responding to an amended Unilateral Administrative Order (“UAO”) issued under section 106(a) of CERCLA.  Safe Environmental was required to conduct certain removal activities to abate an imminent and substantial endangerment to the public health, welfare or the environment, etc.

Safe Environmental submitted a request for reimbursement and the EPA responded with a Motion to Dismiss.  EPA argued that Safe Environmental has not met one of the prerequisites for reimbursement.  Specifically, the issue was whether Safe Environmental has demonstrated that it completed the required action. 

The decision states that Safe Environmental had submitted a final report (and revisions) to EPA.  However, EPA had apparently not completed its review or approved the report.  Nevertheless, Safe Environmental’s position was that the submission of the report itself was completion of the “required action”, thereby commencing the statute of limitations.

The EAB disagreed stating the sixty day period during in which a petition for reimbursement must be filed with board commences on the date that EPA confirms that the required actions had been completed.  The Board granted EPA’s Motion to Dismiss without prejudice.

A copy of the EAB decision can be downloaded below.

The New Mexico Environmental Department (“NMED”) issued a May 11, 2012 news release stating it had settled an Administrative Compliance Order (“ACO”) issued in 2003 to Southwest Tire Processors (“STP”) and its operators — Jeanne M. Romero Gacanich and Moises Romero.  The agency states that the settlement includes payment of $119,229 for a civil penalty.

The NMED states that its 2003 ACO had alleged serious operational, safety and permit-related violations of the Solid Waste Act and Regulations at STP’s tire recycling facility located southwest of Socorro, New Mexico.  The agency stated that the alleged violations included the unsafe storage of an excess number of scrap tires, bales or processed rubber near or underneath electrical power lines.  The tire recycling facility was consumed in a fire that occurred in June, 2000.

A copy of the news release can be downloaded below.

The federal Environmental Protection Agency (“EPA”) has issued a Final Rule promulgating technology-based effluent limitations guidelines and new source performance standards under the Clean Water Act for discharges from airport deicing operations.  EPA states that the requirements generally apply to wastewater associated with the deicing of airfield pavement at primary airports.  Further, the rule requires all such airports to comply with requirements based on substitution of what EPA characterizes as “less toxic pavement deicers” that do not contain urea.

The Final Rule also establishes new source performance standards for wastewater discharges associated with aircraft deicing for a subset of new airports.  The federal agency states that these airports must also meet requirements based on collection of deicing fluid and treatment of the collected fluid.  The effluent limitations guidelines and new source performance standards will be incorporated into Clean Water Act National Pollutant Discharge Elimination System permits issued by the permitting authority. 

EPA states that it expects compliance with the regulation to reduce the discharge of deicing-related pollutants by 16 million pounds per year.  Further, it estimates the annual cost of the rule at $3.5 million.

A link to the unpublished version of the Final Rule can be downloaded below.

https://www.federalregister.gov/articles/2012/05/16/2012-10633/airport-deicing-category-effluent-limitations-guidelines-and-new-source-performance-standards

The North Carolina General Assembly enacted legislation requiring that the North Carolina Department of Environment and Natural Resources, the Department of Commerce, and the Department of Justice, in conjunction with the nonprofit World Advancement Foundation International, study the issue of oil and gas exploration in the state.  The study focused on the use of directional and horizontal drilling and hydraulic fracturing for natural gas production.

An April, 2012 study was completed and issued by these organizations.  The study addresses oil and gas resources present in the Triassic Basin, methods of exploration and extraction of oil and gas, potential impacts on infrastructure, including roads, pipelines and water and wastewater services, potential environmental and health impacts, potential social impacts, and potential oversight administrative issues associated with an oil and gas regulatory program.

A copy of the Executive Summary can be downloaded below.

Senator James M. Inhofe of Oklahoma has introduced Senate Bill 3053 which addresses federal Environmental Protection Agency (“EPA”) Regional Administrators.  Senate Bill 3053 would require that Regional Administrators of the EPA be appointed by and with the advice and consent of the Senate.  The bill was introduced on May 9, 2012.  The bill currently has 22 sponsors and has been referred to the Senate Committee on Environment Public Works. 

The State of Oklahoma is in Region 6 (Dallas, Texas) where the Regional Administrator recently resigned.

A copy of the text from the Bill is not currently available from GPO.

The American Petroleum Institute (“API”) issued a March, 2012 analysis of federal Environmental Protection Agency regulations that allow higher amounts of ethanol in gasoline (E15).  The report argues that an estimated half of all gasoline station equipment is not compatibility with E15.  As a result, the report states that this could result in serious safety and environmental problems for consumers. 

A copy of the report can be downloaded below.

The United States Army Corps of Engineers, Vicksburg District (which includes parts of Arkansas) announced in a May 9, 2012 Special Public Notice the availability of the Regional Supplement to the Corps of Engineers Wetland Delineation Manual:  Eastern Mountains and Piedmont, Version 2.0.  The district states that the supplement was developed by regional expert delineators with input from state and federal agencies, academia and other local experts.  Further, the district states it was peer reviewed by a panel of independent scientists and field tested by interagency teams of state and federal agencies to determine the clarity and ease of use of the document and whether its use will result in any spatial changes in wetland jurisdiction for Clean Water Act Section 404 purposes.

The Special Public Notice contains a link to Version 2.0 of the Eastern Mountains and Piedmont Regional Supplement. 

A copy of the Special Public Notice can be downloaded below.  Also attached are the comments of the independent peer-review team for the draft Eastern Mountains and Piedmont Regional Supplement, etc.

The Oregon Department of Environmental Quality (“DEQ”) created a Portland Air Toxics Solutions Project to work with local communities to develop air toxics reduction strategies for the Portland region.  Between August, 2009 and October, 2011, the agency collaborated with the Portland Air Toxics Solutions Advisory Committee to consider a technical study and develop a framework for an air toxics reduction plan. 

The Committee identified five high priority emission categories for follow up action, along with potential emission reduction recommendations for each category.  DEQ states that this prioritization is based on total modeled risk from air toxics, practicability of the emission reductions, and a directive in Oregon Air Toxics Regulations to address both area wide and localized risks.  It states the five priority categories are:

• Residential wood combustion
• Light duty cars and trucks
• Heavy duty vehicles
• Construction equipment
• Industrial metals

A copy of the April, 2012 report can be downloaded below.

The alleged violations included:

During the CEI it was determined the Respondent has been sending their D001 Sherwin Williams ignitable waste solvent to HCC as a non-hazardous waste without preparing and offering to the transporter a manifest.  By doing so, they are in violation of APC&EC Reg. 23 § 262.20(a)(1).  Consequently, this action of Respondent is also a violation of Ark. Code Ann. §§ 8-7-205(1) and (4). 

The Democrat has agreed to pay an $8,000 penalty and conduct a Pollution Prevention Study to investigate ways to reduce the amount of waste from the facility.  The Democrat is required to submit a Report of Findings to ADEQ within sixty days of the effective date of the CAO.

A copy of the CAO can be downloaded below.

The federal Environmental Protection Agency (“EPA”) has issued notice of a proposed settlement agreement between the agency and the industry petitioners in Portland Cement Ass’n v. EPA, No. 10-1358 (D.C. Circuit).  The notice is found in 77 Fed. Reg. 27055-27057 (May 8, 2012). 

The settlement agreement requires that EPA propose certain actions on pending reconsideration issues and on issues revised in the court’s remand in Portland Cement Ass’n v. EPA by June 15, 2012 (proposal) and December 20, 2012 (final)).  Further, EPA will also address the issue of whether there should be new compliance dates for amended standards for existing sources as part of that process. 

The industry petitioners have agreed not to seek rehearing of the D.C. Circuit’s opinion in Portland Cement Ass’n v. EPA, 665 F.3d 177.

The litigation involves Clean Air Act National Emission Standards for Hazardous Air Pollutants for the Portland Cement source category.

A copy of the Federal Register notice can be downloaded below.