Environmental Business Alert

Date: Feb 02, 2012

EPA Analysis Indicates Palm Oil is Not a Suitable Feedstock for Biodiesel and Other Renewable Fuels

On January 27, 2012, the U.S. Environmental Protection Agency ("EPA") published its analysis which purportedly shows that palm oil is an unsuitable feedstock for use in producing biodiesel or renewable diesel under the Renewable Fuel Standard program (commonly referred to as the "RFS2" program). Assuming that most palm oil in biofuels used in the U.S. would be produced in Indonesia and Malaysia, EPA's analytical model determined that the production, distribution, and use of such fuels would reduce greenhouse gas (GHG) emissions from similar conventional fuels by less than the 20% threshold required by the Energy Independence and Security Act of 2007. Comments on the Agency's analysis are due February 27, 2012. 77 Fed. Reg. 4,300 (Jan. 27, 2012).

EPA Proposes National Uniform Standards for Heat Exchange Systems

In response to an industry petition for reconsideration, EPA is proposing to revise the heat exchange system requirements under the petroleum refinery maximum achievable control technology ("MACT") standards. These "uniform" standards also would apply as default leak action levels, delay of repair action levels and monitoring frequencies for other MACTs that do not specify these details. According to EPA, "establishing uniform standards for types of equipment found in a variety of industries will be efficient for facilities, state, local and tribal governments and the public." Facilities outside the refinery source category would only be subject to the uniform standards if and when EPA proposes to reference the standards in a rulemaking specific to their source category. Such a rulemaking also would provide an opportunity to comment on the specific application of the uniform standards. Given EPA's commitment to this "one size fits all" standard, all stakeholders should consider submitting comments on the current Agency proposal. Comments are due to EPA March 6, 2012. 77 Fed. Reg. 960 (Jan. 6, 2012).

EPA Seeks Peer Review of Draft Hydraulic Fracturing Report

EPA is seeking scientific experts to conduct a peer review of its draft report on hydraulic fracturing entitled, "Investigation of Ground Water Contamination near Pavillion, Wyoming." According to the draft report, certain chemical substances found in samples collected from two deep monitoring wells in the local aquifer likely are associated with hydraulic fracturing. Chemicals found in private and public drinking water wells were consistent with earlier testing conducted in 2010, and generally found to be below established health and safety standards. Peer review nominations are due February 17, 2012. 77 Fed. Reg. 2,292 (Jan. 17, 2012).

EPA Considering Overhaul of Hazardous Waste Generator Regulations

In an effort to improve the clarity and effectiveness of its Resource Conservation and Recovery Act ("RCRA") hazardous waste regulations, EPA announced its intention to develop a rulemaking that would consolidate the hazardous waste generator regulations currently at 40 C.F.R. Parts 261-265 into part 262. The Agency's Actions Initiated List identifies a host of other revisions under consideration, including clarifying regulations concerning: the marking of tanks; when a generator is subject to full regulation as a large quantity generator; and the regulatory status of facilities that generate both acute and non-acute hazardous waste in the same month. Other revisions the Agency is considering, which may not be seen as improvements, include requiring the labeling of conditionally exempt small quantity generator containers during accumulation times and periodic notification for small quantity generators. The Agency does not expect to publish a formal rule proposal before 2013.

Please Welcome Our New Environmental and Toxic Tort Litigation Partner

We are pleased to welcome Eric Gotting as a new Partner in our Environmental and Litigation practice groups. Eric joined the firm several months ago and specializes in environmental and toxic tort litigation. He is a former trial attorney at the United States Department of Justice, Civil Division, Environmental Torts Section, and has litigated cases in Federal and State courts across the country as both a government lawyer and in private practice.

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