Other Bulletins

May 2001
Environment Law Newsletter

U.S. Supreme Court Proceedings - Court Upholds EPA Air Standards

On February 27, 2001, the Supreme Court unanimously decided that the manner in which EPA revised the National Ambient Air Quality Standards (“NAAQS”) for ground-level ozone and particulate matter in July 1997 did not violate nondelegation principles and reversed an appeals court decision that had struck down the NAAQS. The Supreme Court also found that the Clean Air Act prohibited EPA from considering implementation costs in setting the NAAQS. We had previously reported that the challenges centered on whether the arbitrary manner by which EPA established the NAAQS was the result of an unconstitutional delegation of authority by Congress and whether EPA was required to consider compliance costs. (Earlier articles from July 1999, March and August 2000, and January 2001 are available online.)

Despite the Supreme Court’s decision, uncertainty still remains regarding the status of the NAAQS. The challenges to them were based on grounds, in addition to the delegation and cost issues, that the appeals court had not ruled on (e.g., that the rule was an abuse of discretion and outside the scope of EPA's statutory authority). Therefore the Supreme Court remanded the case back to the appeals court for further proceedings. It is possible, though perhaps unlikely, that the appeals court might strike down the NAAQS again for some different reason. Also, while the Supreme Court reversed the earlier decision striking down the revised NAAQS themselves, it determined that the policy by which EPA had planned to implement them was unlawful. The Court left it to EPA to develop a new implementation policy consistent with the Clean Air Act.

These uncertainties make it impossible to predict the impact of the Supreme Court’s decision. Ground-level ozone concentrations in Massachusetts have improved to the point that there has been discussion of applying to EPA for redesignation to “attainment” status with respect to the old ozone standard, but it is fairly certain that the tougher new standard will not be met. It has already been exceeded on May 2, 3 and 4 of this year according to preliminary EPA data. It is reasonable to assume that none of the existing Massachusetts Department of Environmental Protection regulations will be relaxed and that DEP will move forward with stricter regulations regarding fuel burning, architectural coatings and consumer products to further reduce ground-level ozone.

Court Declines to Hear NOx SIP Call Appeal

Ultimately, whether and when Massachusetts achieves attainment status under the new ozone standard or not may depend less on Massachusetts efforts and more on whether emission reductions are achieved in upwind states whose pollution is transported here. EPA has been trying to force upwind states to revise their state implementation plans (“SIPs”) to reduce ozone-producing emissions of oxides of nitrogen from power plans through a rule called the NOx SIP Call. On March 5, 2001, the Supreme Court denied three petitions for it to hear appeals challenging the NOx SIP Call. However, challenges to other aspects of the NOx SIP Call are still ongoing in lower courts.

Changes in Community

Right-to-Know Reporting Requirements

EPA regulations promulgated pursuant to the Emergency Planning and Community Right-to-Know Act (“EPCRA”) require certain facilities to file annual reports regarding specified chemicals. The facilities are those (1) with ten or more full-time employees, (2) included in Standard Industrial Classification (“SIC”) Codes 10 (except 1011, 1081 and 1094), 20-39, 4911 and 4939 (both limited to coal or oil-fired electrical generation), 4953 (limited to RCRA Subtitle C facilities), 5169, 5171 and 7389 (limited to solvent recovery services), and (3) that manufacture, process or otherwise use listed chemicals above established threshold amounts. Changes in EPA regulations have affected these reporting requirements as discussed below.

Persistent Bioaccumulative Toxic Chemicals:

EPA has lowered the reporting thresholds for certain persistent bioaccumulative toxic (“PBT”) chemicals and added other PBT chemicals for the first time. The new thresholds for PBTs are much lower than the previous thresholds of 25,000 pounds for any listed chemical manufactured or processed in a calendar year, and 10,000 pounds for listed chemicals otherwise used. The lowest reporting threshold, for dioxin and dioxin-like compounds, now is only 0.1 grams. The effect of the rule will be felt when facilities must submit their reports by July 1, 2001 for calendar year 2000. This change is expected to increase significantly the number of firms required to report under EPCRA.

Polycyclic Aromatic Compounds in Fuel Oil:

Among the changes was the lowering of the reporting threshold to 100 pounds total for a category called polycyclic aromatic compounds (“PACs”) that includes 21 separate PBT chemicals with individual names are too long to list here. This change drew relatively little notice until EPA released its November 2000 draft “Guidance for Reporting Toxic Chemicals: Polycyclic Aromatic Compounds Category” (“EPA Guidance”). The EPA Guidance was revised in March 2001, but it still has not been issued in final form. Among other things, the EPA Guidance discusses the presence of PACs in fuel oil, most notably No. 6 fuel oil. Some of the information in the EPA Guidance appears contradictory and subject to change. An “example” calculation in the November 2000 EPA Guidance indicates that a covered facility consuming 22,000 gallons of No. 6 oil in one year will reach the threshold of 100 pounds and need to report, but the calculation in the March 2001 EPA Guidance indicates that the same threshold will be reached when 5,084 gallons are burned. We would caution you not to rely too heavily on the 5,084 gallon figure; it may not be accurate with respect to a particular facility, and the EPA Guidance states on every page: “Do Not Cite or Quote as Final Agency Guidance.” One thing is clear: Many industrial facilities will need to submit reports regarding the burning of No. 6 oil in boilers for the first time.

Lead and Lead Compounds:

In the last days of the Clinton administration, EPA determined that lead also is a PBT chemical and published a final rule that lowered the reporting threshold for lead and lead compounds to 100 pounds. On February 16, 2001, EPA published a final rule delaying the effective date of the rule to April 17, 2001. There was discussion that the Bush administration might seek to rescind the rule, but ultimately the decision was made to let it take effect. Many more firms (such as electronics manufacturers that use lead solder) will need to file reports by July 1, 2002 for calendar year 2001 as a result of the change.

Toxics Use Reduction Act:

The changes in the EPA regulations will have a ripple effect on reporting under the Massachusetts Toxics Use Reduction Act (“TURA”), because the “threshold amounts” for PBTs in DEP regulations under that act are the same now as the federal threshold. However, TURA applies to more Massachusetts facilities than does EPCRA since TURA covers facilities in SIC codes 10-14, 40, 44-51, 72, 73, 75 and 76, which is broader than the range of SIC codes listed above for EPCRA applicability. We have heard unofficially that DEP will grant requests for a 90-day extension of the deadline to submit reports regarding PBTs, but this does not apply to the reporting required by EPA.

If you have questions on these subjects or otherwise wish to contact our Environmental Law Department, contact its Chairman, Chris Myhrum, at (413) 272-6281 or cmyhrum@bulkley.com