The Low-Threat Closure Policy recognizes that many petroleum release cases pose a low-threat to human health and the environment. The policy’s purpose is to establish consistent California statewide case closure criteria for low-threat petroleum UST sites. To potentially qualify for closure, the site must satisfy eight general criteria (applicable to all sites), as well as media-specific criteria as it pertains to groundwater, vapor intrusion to indoor air and direct contact, and outdoor air exposure. Below is a brief description of each of these criteria.

The general criteria are as follows:

• Site must be in a service area of a public water system:  The policy recognizes that while new water supply wells are unlikely to be installed in the shallow groundwater near former UST release sites, it is difficult to predict whether this will always be the case, particularly in rural areas that are undergoing new development. Therefore, the policy is limited to areas with available public drinking water supplies.
• Release must consist of “petroleum:” This is defined as crude oil, or any fraction thereof, including motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents and used oils.
• Release must be stopped:  Sites with ongoing leaks do not qualify.
• Free product must be removed to the maximum extent practicable:  The free product must be removed in a manner that minimizes the spread into previously uncontaminated zones; abatement of free product migration must be used as a minimum objective for the design of any free product removal system; and flammable products must be stored for disposal in a safe and competent manner to prevent fires or explosions. 
• A conceptual site model must be prepared and validated:  This is not a new requirement and should be developed as part of the remediation process.
• Secondary source removal must be addressed:  Sites are required to undergo secondary source (i.e., petroleum-impacted soil or groundwater located at or immediately beneath the point of release from the primary source) removal, which removes or destroys in place the most readily recoverable fraction of source-area mass.
• MTBE testing requirement:  Soil, groundwater, or both, must be tested for MTBE if applicable.
• No nuisance can exist:  Sites cannot be closed if they result in a nuisance as defined by Water Code section 13050.

In addition to these general criteria, the Low-Threat Closure Policy discusses the media-specific criteria (groundwater, vapor intrusion to indoor air and direct contact, and outdoor air exposure) that must be met to obtain closure:

• Groundwater:  With respect to groundwater, the policy describes the criteria on which to base a determination that risks to existing and anticipated future beneficial uses of groundwater have been mitigated or are de minimus. The area of the plume that exceeds the water quality objective must be stable or decreasing.   
• Petroleum Vapor Intrusion to Indoor Air:  This criteria applies when existing buildings are occupied or may be reasonably expected to be occupied in the future, or when buildings for human occupancy are reasonably expected to be constructed in the near future.  If the site is an active commercial petroleum fueling facility, the criteria does not apply.
• Direct Contact and Outdoor Air Exposure:  This criteria describes conditions where there is direct contact with contaminated soil or inhalation of contaminants volatized to outdoor air poses an insignificant threat to human health. 

If the regulatory agency determines that a site meets both the general criteria and the media-specific criteria, they are supposed to notify the responsible parties that they are eligible for case closure.  The regulatory agency must then give notice of case closure, make sure that all monitoring wells are destroyed and all waste has been removed.  The regulatory agency can then issue a closure letter within 30 days unless it revises its determination based on comments received on the proposed closure.

Even sites that do not meet all of the criteria, may still be able be to obtain closure.  The policy instructs that regulatory agencies should issue a closure letter if the site is determined to be a low-threat based upon a site specific analysis.  Also, while the policy addresses USTs, the policy states that if a non-UST site (e.g., an aboveground tank or pipelines) exhibits attributes similar to those addressed in the policy, the criteria for closure evaluation of these sites should be similar to those discussed in the policy. 

Adoption of the Low-Threat Closure Policy should make it easier for many sites to obtain closure.  As with any agency action, it is important to be aware of your rights.  If you think that you have a site that may qualify, it is worth checking with your environmental consultant or environmental counsel.  We will keep you posted as to whether the SWRCB adopts the policy.

Following EPA’s approval of the 2004 SIP, Sierra Club and several environmental groups petitioned the Ninth Circuit Court Appeals to review EPA’s approval on the basis that mobile source data, current at the time the plan was submitted to EPA in 2004, was outdated and inaccurate by the time the plan, which was amended in 2006 and clarified in 2008, was approved in 2010.  During the six-year period between plan submission and approval, California had replaced the computer modeling tool it used to estimate mobile source emissions with the next generation of that modeling tool, which was better able to capture emissions from heavy-duty trucks.  Also during that time period, California had presented EPA with the Valley’s 2007 SIP for the 8-hour ozone standard (“2007 SIP”), which relied on data compiled through the use of the updated tool.  The court noted that a comparison of the emissions inventories in the 2004 and 2007 plans revealed apparent disparities in emissions estimates for nitrogen oxides (NOx), with the 2004 SIP potentially underpredicting total daily NOx emissions in the Valley.  In the court’s opinion, these disparities, which the court attributed to the state’s change in modeling tools, undermined the accuracy and currency of the 2004 SIP emission inventory data.

In rendering the decision of the court, Judge Gould acknowledged that the court’s role was not to substitute its conclusions for those of the agency, clarifying that the court “express[ed] no opinion as to what conclusion EPA should have reached, with respect to the validity of the 2004 SIP, upon consideration of the 2007 data.”  However, the court refused to “silently rubber stamp agency action that [was] arbitrary and capricious,” specifically EPA’s “reliance on old data without meaningful comment on the significance of more current compiled data.”

In considering a 2002 policy memorandum relied upon by EPA to support its position, Judge Gould noted, “[w]hile there is some period of time after the release of a new computer modeling tool in which the [Clean Air Act] does not require a finding that SIPs based on the previous version are not current and accurate, there comes a time after which reliance on outdated models and data is inconsistent with requisite guidelines for ensuring that agency action is timely and responsive to current public needs.”  In the instant case, EPA did not approve the 2004 SIP until more than 3 years after the release of California’s more current computer modeling tool; EPA had access to data compiled through the use of the more current tool; and the new data revealed significantly different measurements of expected NOx emissions in the Valley.  Based on these facts, EPA had to either 1) analyze the new data or 2) cogently explain why it was exercising its discretion not to consider the new data.  EPA’s approach, however, was to “merely repeat[] its mantra that EPA had no duty under the [Clean Air Act] to consider new data so long as the data relied upon was current and accurate when submitted.”  This approach was not only arbitrary and capricious, but further left the court “with no means of determining whether there is any merit to [intervenor San Joaquin Valley Unified Air Pollution Control] District’s argument” that it was appropriate for EPA to ignore the 2007 8-hour ozone emissions inventory data because any comparison to the 2004 1-hour ozone emissions inventory data would not be “an apples to apples comparison.”

The court’s decision makes clear that if EPA does not require states to rework previously submitted air quality plans as new emissions data becomes available, EPA will have to either reconcile the older and newer data, or cogently explain why it has not.  Forcing EPA to provide a reasoned explanation for its choice, may result in more states having to update existing SIPs or SIPs awaiting approval when new information indicates that the SIP is inaccurate or not current.   

While environmental groups have emphasized the importance of emissions inventories and argued that plans should have current and accurate inventories upon approval, EPA has expressed the practical concern that states could never effectively plan for air quality improvements if they had to constantly revise their inventories as new data became available.     

Although the 1-hour ozone standard was revoked in 2005 and replaced with the 8-hour ozone standard, for purposes of “anti-backsliding,” EPA still requires the Valley to have a fully-approved attainment demonstration plan for the 1-hour standard.

The Case is Sierra Club, et al., v. United States Environmental Protection Agency, et al., Case No. 10-71457 (9^th Cir., Jan. 20, 2012).

BACKGROUND FACTS TO INFORM YOUR READING:

The Act:  The Clean Air Act is a comprehensive program that sets forth a cooperative state-federal approach to improving the nation’s air quality.  Under the Act, EPA publishes a list of air pollutants and sets national ambient air quality standards (“NAAQS”) for each pollutant identified.  Each state has “primary responsibility for assuring air quality” within the region comprising such state, and each state must develop a state implementation plan (“SIP”) detailing the rules and regulations that the state will use to satisfy the NAAQS. 

Emissions Inventories:  As part of a SIP, states submit “a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants of the area.”  After developing base year emissions inventories, states use modeling and other analyses to calculate future emissions projections and target emissions levels, which inform the State’s development of progress milestones and control strategies for attaining NAAQs. 

The Pollutant:  Nitrogen oxides form when fuel burns at high temperatures, such as in motor vehicle engines. Nitrogen oxides cause a variety of health and environmental problems, such as ozone and smog.  Ozone and smog form in the atmosphere when nitrogen oxides mix with volatile organic compounds and sunlight.

The Suit:  The Clean Air Act allows citizens to directly petition the United States Court of Appeals for the applicable circuit court for review of EPA’s final approval of air quality plans.

Under the regulation, offsets may be used by a facility to meet up to 8% of its compliance obligation under the cap-and-trade program.  Not just any old GHG-reducing project warrants the issuance of an official offset, however… there are many requirements.  The reductions created by the project must be real, additional (meaning, beyond regulation or would otherwise occur), quantifiable, permanent, verifiable and enforceable.    

Programs are eligible for offset issuance if they are the result of an ARB adopted “compliance offset protocol.”  These protocols are scientific and technical requirements for a particular type of project (for example, a dairy digester).  Currently, there are adopted protocols for projects in only four project areas: forestry, urban forestry, livestock projects and destruction of ozone-depleting substances.  However, ARB plans to develop more protocols in the future as well as linking California’s regulation to the Western Climate Initiative’s program such that any protocols they have developed may also be used.

Prior to issuance of an offset credit, the project must be listed on an ARB-approved offset project registry (OPR).  In order to become an OPR, the regulation requires prospective registries to undergo an application and rigorous vetting process.  Once approved as an OPR, a registry may list projects and also assist in the reporting and verification steps (discussed in the next paragraph).

AB 32 requires that all reductions used to comply undergo regulatory verification; therefore, one of the primary requirements of the offset program is for third-party verification.  ARB will undertake the task of training and accrediting third-party verifiers.  In order to have an offset issued by ARB, the project must undergo this verification.  In addition, a project may undergo a second round of third-party verification in order to shorten to three years the statute of limitations within which an offset may be invalidated (without this review by a second verifier, the statute of limitations is eight years). 

Although ARB is essentially farming out much of the work to verify and monitor the compliance of the offset projects with the regulation, ARB will have extensive oversight through randomly auditing projects and verifiers and requiring OPRs to annually report certain information. 

This article is merely an overview of the main requirements a project must undergo under the regulation in order to be issued an offset credit.  As with anything, the devil is in the details… and there are many.  As far as next steps, ARB says that they intend to accredit offset verifiers, approve OPRs and develop and institute an ARB tracking system.  In addition, they intend to consider and develop new offset protocols.  Stay tuned!

The GHG Reporting Program came as result of EPA’s October 2009 issuance of the Mandatory Reporting of GHG Rule (74 FR 56260).  The rule requires certain large sources and suppliers of products that would emit GHGs if released or combusted to report their GHG data and other relevant information starting in 2010.  EPA’s online data publication tool allows the public to review the GHG data in multiple ways including by facility, industry, location or gas. 

Texas had the most reporting facilities at 678, followed by California at 456.  D.C. had the fewest reporting facilities at 7.  Power plants were the largest stationary source of direct emissions, followed by petroleum refineries.  Carbon dioxide accounted for the largest share of direct GHG emissions with 95 percent, followed by methane with 4 percent, and nitrous oxide and fluorinated gases representing the remaining 1 percent. 

The GHG Reporting Program differs from the Inventory of U.S. Greenhouse Gas Emissions and Sinks, because the Inventory cannot be broken down by location or facility.  The Inventory is an assessment of GHG emissions from the United States developed to fulfill the United States’ commitment to the United Nations Framework Convention on Climate Change (UNFCCC). 

EPA will require more sources to report next year under the GHG Reporting Program.

Not only will this project comply with the mandatory requirements of California Green Building Standards Code (as known as CALGreen), which went into effect as of January 1, 2011, this project will also comply with the Tier 1 discretionary measures and is also on track to accomplish LEED Certification, California ENERGY STAR Certification, and California Home Energy Efficiency Rating System (CHEERS) Verification, among other certifications and verifications.  For all of the talk in recent memory about the need to go “green” and preserve our natural resources from local citizens all the way to President Obama, Structure Home is actually making it happen.

This project will feature many sophisticated components and systems, both from a design and material perspective, which go well beyond double-paned windows and roof solar panels.  VISION House Los Angeles includes, among countless other features, advanced framing (24″ on center stud framing to maximize insulation), systems designed to manage and control microbial contamination and termite infestation, spray foam and spider blown-in insulation, hydronic radiant heating and water distribution systems, a reflective cool roof system, a car charging station, and an emergency generator.  Ultimately, the developers hope to surpass the minimum Title 24 requirements, California’s energy efficiency standards, by 18%.

Greenberg Glusker helped handle the acquisition and construction loans for the project.  We applaud Structure Home’s success in the green building arena.  Their vision of sustainability will surely help shape the green building landscape in our community and beyond.  VISION House Los Angeles is scheduled for completion in May 2012.

The SCAQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties, but does not have jurisdiction over tribal lands. Under the agreement announced yesterday, the tribe has voluntarily agreed to allow the SCAQMD inspectors to conduct air sampling, monitoring and inspection activities on the 640-acre Cabazon Resource Recovery Park industrial park near Mecca. It also requires facilities operating within the park, including Western Environmental Inc., to comply with applicable SCAQMD rules. The agreement will also allow the SCAQMD to enforce permits issued by the U.S. Environmental Protection Agency to facilities operating within the park.

While the agreement allows the SCAQMD to issue a violation notice, the Tribal Environmental Board (established to oversee environmental issues) will review it and approve, modify or reject it. However, a SCAQMD representative will be on the Tribal Environmental Board. Tribal Chairman, David Roosevelt, stated that this “agreement is the demonstration of our commitment to the community and environmental stewardship on sovereign lands.”

The Sacketts own about a half-acre vacant parcel of land in Idaho.  In early 2007, they filled the parcel with dirt and rock in preparation for building a house.  Later that year, EPA issued an administrative compliance order against the Sacketts alleging that the parcel of land is a wetland subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without obtaining a permit.  EPA ordered the Sacketts to return the land to its former condition or face over $30,000 in penalties per day for failure to comply. 

After EPA refused to hear the Sacketts’ challenge to the order, the Sacketts brought an action against EPA in the United States District Court for the District of Idaho seeking an injunction against EPA and declaratory relief.  However, the district court dismissed the action on the grounds that it did not have subject-matter jurisdiction (i.e., the right to consider that type of case).  The court concluded that the CWA precludes judicial review of compliance orders before EPA has initiated an enforcement action in federal court.  The Ninth Circuit agreed. 

The Ninth Circuit found that allowing pre-enforcement review would require EPA to litigate all compliance orders in court, even though Congress gave them the choice of either issuing a compliance order or bringing a civil action.  Additionally, the court found that because no sanctions can be imposed for non-compliance until EPA brings an enforcement action in court, a party would have an opportunity to challenge EPA’s action.  The court found that its ruling did not violate the Sacketts’ right to due process, especially given that any penalties are subject to judicial review and may only be imposed for violation of the CWA and not the compliance order per se. 

Fundamentally, the Supreme Court will decide whether a party has a right to challenge EPA compliance orders before EPA brings an enforcement action against the party.  If not, parties like the Sacketts may be required to incur thousands of dollars complying with an order without ever having their day in court or have to wait until they are sued by EPA for non-compliance.

The Sacketts are represented by the Pacific Legal Foundation (PLF) (click here for information from PLF on the case and click here for the transcript of the oral argument).  A decision is expected by June – we’ll keep you posted.

The SCAQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties.  The Air Monitoring Plan describes the network of ambient air quality monitors within the SCAQMD’s jurisdiction (click here for the final plan).  Federal law requires EPA to review the Air Monitoring Plan annually to identify the need to make any changes to the air monitoring requirements. 

Although the environmental groups’ opening brief is not due until the end of March, according to NRDC’s press release, the focus of the suit will be that EPA violated the Clean Air Act by approving the Air Monitoring Plan even though it does not require air quality monitoring along Southern California freeways.  NRDC contends that such monitoring is necessary to “better inform the local air district about the hazardous levels of particulate air pollution, and to arm them with the information necessary to take action to protect the region’s residents.”  The environmental groups are seeking the installation of air monitors along the region’s highways.

California is limiting the number of stickers to 40,000.  The program will last through January 2015.  Ironically, as reported by the Sacramento Bee, there are currently no commercially available cars that meet the criteria to obtain the decal.  However, the 2012 Toyota Prius plug-in hybrid and the 2012 Chevy Volt are expected to qualify.

The aim of the regulation is a 20% reduction in emissions below 1990 levels by 2020. Quebec is the first Canadian partner of WCI to adopt its cap-and-trade regulation. The adoption comes closely after California’s October 20, 2011 adoption of the final regulation for its cap-and-trade program. 

Commencing January 1, 2012, the first year of Quebec’s program will be a transition year to allow emitters and participants to familiarize themselves with the program. The capping and reduction of GHG emissions will officially start on January 1, 2013 and apply primarily to industrial and electricity sectors. Quebec’s Minister of Sustainable Development, Environment and Parks touted the adoption of the regulation as allowing Quebec to acquire “the means to achieve the transition toward a green, sustainable and prosperous economy.” 

Not surprisingly, the California Air Resources Board (CARB) applauded Quebec’s adoption of the regulation. CARB Chairman Mary D. Nichols stated that it’s a “great example of provinces and states moving forward despite a lack of action at the national level.” The adoption of Quebec’s cap-and-trade regulation furthers the efforts of the WCI toward reducing GHG emissions.