EPA Proposes Two New Rules on Clean Air Act Permitting for Greenhouse Gas Emissions (see attached fact sheet)
August 12, 2010 - EPA proposed two rules to ensure that businesses planning to build new, large facilities or make major expansions to existing ones will be able to obtain New Source Review Prevention of Significant Deterioration (PSD) permits that address greenhouse gases. EPA released its two new proposed rules (August 12, 2010) to ensure that businesses planning to build new, large facilities or make major expansions to existing ones will be required to obtain Clean Air Act permits that address their greenhouse gas (GHG) emissions as of January 2, 2011.
The Clean Air Act requires states to develop EPA-approved implementation plans that include requirements for issuing air permits. When federal permitting requirements change, as they did after EPA finalized the GHG Tailoring Rule, states may need to modify these plans.
In the first rule (attached), EPA is proposing to require permitting programs in 13 states (including such states as Arizona, Alaska and Texas) to make changes to their implementation plans to ensure that GHG emissions will be covered. All other states that implement an EPA-approved air permitting program must review their existing permitting authority and inform EPA if their programs do not address GHG emissions.
Because some states may not be able to develop and submit revisions to their plans before the Tailoring Rule becomes effective in 2011, in the second rule (attached), EPA is proposing a federal implementation plan, which would allow EPA to issue permits for large GHG emitters located in these states. This would be a temporary measure that is in place until the state can revise its own plan and resume responsibility for GHG permitting. EPA intends to finalize these rules prior to January 2, 2011, the earliest GHG permitting requirements will be effective.
Settlement affecting Air Toxics Emission Standards at 28 types of Operations
July, 2010 - EPA has agreed to review and make all necessary updates to hazardous air pollution rules covering 28 types of industrial facilities. The proposed consent decree lodged in federal court (attached) is the result of a Jan. 2009 lawsuit filed by Earthjustice on behalf of Sierra Club. There will be a public comment period and final agency review for the proposed agreement before the EPA and Sierra Club submit the final agreement to the Court for approval later this year. The EPA will be scheduled to take the first action under the agreement by mid-September 2010, and additional rulemakings on toxic air pollution standards for various industries will follow regularly over the next few years.
Some details of the proposed decree:
- The U.S. EPA will review and, as necessary, revise the national emission standards for hazardous air pollution to control toxic air emissions for 28 industrial sources, hold a public rulemaking and issue a final determination as required by law.
- The agency also will hold a rulemaking to set "residual risk" safety standards if required to protect public health and the environment.
- The U.S. EPA will begin taking action this September and will complete all rulemakings in the next few years.
- For each of the 28 industrial categories covered by the agreement, the public will have the ability to review the EPA's proposed rule or determination and offer comments to ensure that the agency hears fully from local communities.
- The U.S. Environmental Protection Agency will soon publish a notice in the Federal Register and accept public comments regarding the proposed consent decree.
EPA Proposal Cuts Pollution from Power Plants in 31 States and D.C. / CAIR Replacment -"Transport Rule"
July 2010- EPA is proposing regulations to cut air pollution that impairs air quality downwind of a state. The emissions proposal would affect coal-, oil-, and natural-gas-fired power plants in 31 eastern states plus the District of Columbia. The new proposal, called the transport rule, is designed to help areas in the eastern United States meet existing national air quality health standards. When finalized, the proposal will replace the Bush Administration's 2005 Clean Air Interstate Rule, which cuts SO2 and NOx from power plants in 28 eastern states and the District of Columbia. In 2008, a federal court determined that the 2005 rule was legally flawed. The ne proposed transport rule would reduce power plant emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) to meet state-by-state emission reductions. By 2014, the rule and other state and EPA actions would reduce SO2 emissions by 71 percent over 2005 levels. NOx emissions would drop by 52 percent. EPA's Transport Rule proposal for a cap-and-trade program to cut NOx and (SO2 from power plants in 31 states would limit the ability of utilities to trade emission credits. Each state has a cap, which limits trading among states, although EPA is taking comment on allowing trading across state lines if inside one company.
4th Circuit Court of Appeals holds Power Plant Air Pollution Isn't an Interstate Nuisance (see attached)
July 2010- The 4th Circuit Court of Appeals reversed a ruling that would have forced the Tennessee Valley Authority to spend $1 billion on pollution controls at coal-fired power plants in Tennessee and Alabama. North Carolina had sued TVA in 2006, arguing that the federally owned utility's plants posed a public nuisance because their air pollution crossed state lines and contributed to pollution in North Carolina. The common-law claim would upset the delicate balance that has been struck by state and federal laws and regulations, according to the 4th Circuit. Judge J. Harvie Wilkinson III stated his fundamental position in the opinion as follows: "If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation's carefully created system for accommodating the need for energy production and the need for clean air." The opinion also stated as follows: "The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike."
July 29, 2010 Denial by EPA of Petitions for Reconsideration of the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act (Preface attached)
EPA determined in December 2009 that climate change caused by emissions of greenhouse gases threatens the public's health and the environment. Since then, EPA received ten petitions challenging this determination. On July 29, 2010, EPA denied these petitions. (Fact Sheet attached).
The petitions to reconsider EPA's "Endangerment Finding" claimed that climate science can't be trusted, and asserted a conspiracy that calls into question the findings of the Intergovernmental Panel on Climate Change (IPCC), the U.S. National Academy of Sciences, and the U.S. Global Change Research Program. After months of serious consideration of the petitions and of the state of climate change science, EPA has stated on July 29, 2010 that EPA found no evidence to support these claims.
The basic assertions by the petitioners and EPA responses follow:
- Claim: Petitioners say that emails disclosed from the University of East Anglia’s Climatic Research Unit provide evidence of a conspiracy to manipulate global temperature data.
- Response: EPA reviewed every e-mail and found this was simply a candid discussion of scientists working through issues that arise in compiling and presenting large complex data sets. Four other independent reviews came to similar conclusions.
- Claim: Petitioners say that errors in the IPCC Fourth Assessment Report call the entire body of work into question.
- Response: Of the alleged errors, EPA confirmed only two in a 3,000 page report. The first pertains to the rate of Himalayan glacier melt and second to the percentage of the Netherlands below sea level. IPCC issued correction statements for both of these errors. The errors have no bearing on Administrator Jackson’s decision. None of the errors undermines the basic facts that the climate is changing in ways that threaten our health and welfare.
- Claim: Petitioners say that because certain studies were not included in the IPCC Fourth Assessment Report, the IPCC itself is biased and cannot be trusted as a source of reliable information.
- Response: These claims are incorrect. In fact, the studies in question were included in the IPCC report, which provided a comprehensive and balanced discussion of climate science.
- Claim: Petitioners say that new scientific studies refute evidence supporting the Endangerment Finding.
- Response: Petitioners misinterpreted the results of these studies. Contrary to their claims, many of the papers they submit as evidence are consistent with EPA’s Finding. Other studies submitted by the petitioners were based on unsound methodologies.
June 28, 2010 EPA Mandatory Greenhouse Gas Reporting Rule Changes; Proposed Confidentiality Determination for the Mandatory Greenhouse Gas Reporting Rule and Proposed Rule Amendment Specifying Procedures for Handling Data; Final Rule on Four Source Category Reporting
The rule on Mandatory Reporting of Greenhouse Gases from Magnesium Production, Underground Coal Mines, Industrial Wastewater Treatment, and Industrial Landfills finalizes the reporting requirements for these source categories. Under the rule, facilities are required to report their emissions to EPA if they emit 25,000 metric tons CO2e or more per year in combined emissions from sources covered by the rule. All underground coal mines that are subject to quarterly (or more frequent) sampling of ventilation systems by the Mine Safety and Health Administration (MSHA) must report emissions to EPA. Underground coal mines, magnesium production facilities, industrial waste landfills and industrial wastewater treatment facilities that meet the reporting threshold must begin monitoring GHG emissions on January 1, 2011 and must submit the first annual report to EPA by March 31, 2012. EPA has also added a provision that will allow facilities in these source categories to submit a request to use Best Available Monitoring Methods instead of using the monitoring methods specified in each subpart for calendar year 2011 monitoring. This also includes EPA's final decision not to include ethanol production and food processing as distinct subparts in the rule. In addition, it specifies that suppliers of coal will not be included in the rule at this time. Although EPA did not include ethanol production and food processing as distinct subparts in the rule, these types of facilities are still required to report emissions under other subparts of the rule if they meet the reporting threshold of 25,000 metric tons of CO2 equivalent per year for all covered emissions sources. These include stationary combustion, landfills, and wastewater treatment. EPA did not include reporting requirements for coal suppliers at this time because, according to EPA, its near-term needs for information on GHG emissions from coal consumption can be met through existing reporting requirements, as well as other readily available and existing data sources. With this final rule, EPA has taken action on all outstanding source categories and subparts from the April 2009 proposal for the greenhouse gas reporting program.
EPA proposes to determine which data elements reported under EPA's Greenhouse Gas Reporting Program would be publicly available and which would be kept confidential. The Clean Air Act does not allow "emission data" to be considered confidential, and requires that such data be available to the public. EPA evaluated its Reporting Program to determine which data elements are considered "emission data" and, therefore, not eligible for confidential treatment. For the data elements that are not considered "emission data" in this proposal, EPA evaluated whether they qualify for confidential treatment as trade secrets or confidential business information. EPA focused on whether the release of the data would be "likely to cause substantial harm to business's competitive position," in which case the data elements would not be released. In its proposed determination EPA provides a list of data categories that are considered emissions data and data categories that they consider CBI. A full list of all the data elements in the Greenhouse Gas Reporting Program - and which category they are assigned to - is provided in a memorandum.
Energy Subsidies Favor Fossil Fuels Over Renewables, says Environmental Law Institute 2010 Survey of Congressional Actions
In a study covering 2002-2008, the Environmental Law Institute concluded that federal energy subsidies favored fossil fuels over renewables by a wide margin. Moreover, more than half the renewable subsidies went to corn-based ethanol. The current energy and climate debate would benefit from a broader understanding of the explicit and hidden government subsidies that affect energy use throughout the economy. In an effort to examine this issue, ELI conducted a review of fossil fuel and renewable energy subsidies for Fiscal Years 2002-2008. The report, Estimating U.S. Government Subsidies to Energy Sources: 2002-2008, describes the approach used to identify and quantify the subsidies presented in the graphic. ELI researchers used a standardized methodology to calculate government expenditures. Where this methodology was lacking or did not apply, ELI researchers calculated subsidy values on a case-by-case basis.
Applying a conservative approach, explained in further detail in the report, ELI found that:
- The vast majority of federal subsidies for fossil fuels and renewable energy supported energy sources that emit high levels of greenhouse gases when used as fuel.
- The federal government provided substantially larger subsidies to fossil fuels than to renewables. Subsidies to fossil fuels—a mature, developed industry that has enjoyed government support for many years—totaled approximately $72 billion over the study period, representing a direct cost to taxpayers.
- Subsidies for renewable fuels, a relatively young and developing industry, totaled $29 billion over the same period.
- Subsidies to fossil fuels generally increased over the study period (though they decreased in 2008), while funding for renewables increased but saw a precipitous drop in 2006-07 (though they increased in 2008). The largest subsidies to fossil fuels were written into the U.S. Tax Code as permanent provisions. By comparison, many subsidies for renewables are time-limited initiatives implemented through energy bills, with expiration dates that limit their usefulness to the renewables industry.
Energy Subsidies Black, Not Green
- The vast majority of subsidy dollars to fossil fuels can be attributed to just a handful of tax breaks, such as the Foreign Tax Credit ($15.3 billion) and the Credit for Production of Nonconventional Fuels ($14.1 billion, though this credit has since been phased out). The largest of these, the Foreign Tax Credit, applies to the overseas production of oil through an obscure provision of the Tax Code, which allows energy companies to claim a tax credit for payments that would normally receive less-beneficial tax treatment.
- Almost half of the subsidies for renewables are attributable to corn-based ethanol, the use of which, while decreasing American reliance on foreign oil, raises considerable questions about effects on climate.
The project also included an examination of energy flows in 2007.
More Regulation of Formaldehyde Emissions - California Rules Go Federal
As of June 2, 2010, EPA concluded that formaldehyde is carcinogenic when inhaled by humans. The EPA's draft assessment of formaldehyde is subject to 90 days of public comment and a nine-month peer review by a panel of the National Academy of Sciences. On June 14, 2010 the Senate passed, and on June 23, the House passed an amendment to TSCA that sets national Formaldehyde Standards for Composite Wood Products, adding a new Title VI to TSCA. Title VI of TSCA will lead to adoption on a nationwide basis of key aspects of the CARB standards, while subjecting to TSCA jurisdiction and enforcement the producers of composite wood products and of finished products containing them. On July 7, 2010, President Obama signed into law the Formaldehyde Standards for Composite Wood Products Act, which amends TSCA to make the formaldehyde emission standard contained in the California Code of Regulations (relating to an airborne toxic control measure to reduce formaldehyde emissions from composite wood products, as in effect on July 28, 2009) applicable to hardwood plywood, medium-density fiberboard, and particleboard sold, supplied, offered for sale, or manufactured in the United States. The measure exempts hardboard, structural plywood, wood packaging, and composite wood products used inside new vehicles, rail cars, boats, aerospace craft, or aircraft. The EPA will promulgate regulations to ensure compliance equivalent to compliance with the California standard.
EPA 2010 Interim Guidance (see attached) On Greater Employee Involvement in Inspections conducted by EPA under the EPA’s Risk Management Program
Under the new interim guidance for use in EPA's chemical safety inspections process, EPA inspectors will offer employees and employee representatives the opportunity to participate in chemical safety inspections. In addition, EPA will request that state and local agencies adopt similar procedures under the Risk Management Program. Through this program, EPA seeks to reduce the risks to surrounding communities that arise from the management, use or storage of certain hazardous chemicals. EPA believes that more involvement of employees and employee representatives in such inspections better protects workers and the adjacent communities.
Owners and operators of 40 CFR Part 68 covered facilities must develop a risk management plan, which includes facility plans for the prevention and response to chemical accidents. Under the Clean Air Act, the Chemical Accident Prevention Provisions require facilities that produce, handle, process, distribute, or store certain chemicals to develop a Risk Management Program, prepare a risk management plan, and submit the plan to EPA. EPA expects to issue final guidance on participation of employees and employee representative in RMP inspections later this year. EPA staff who are conducting on-site compliance evaluations at RMP facilities will now offer facility employees and employee representatives the opportunity to participate in any such evaluations. The Office of Enforcement and Compliance Assurance and the Office of Solid Waste and Emergency Response have issued this June 2010 interim guidance and are jointly developing final guidance to implement the CAA section 112(r) statutory requirement. They plan to issue the final guidance later in 2010. Until final EPA guidance is issued, the Occupational Safety and Health Administration Field Operations Manual is available as a reference tool for use in how employees will be greater involved.
Coalition Of Battery Recyclers v. U.S. EPA - COURT UPHOLDS NEW Pb NAAQS
The U.S. Court of Appeals, D.C. Circuit, upheld the new Lead NAAQS in a May 14, 2010 decision. Industry had sued, claiming that the revised primary lead NAAQS was too strict, arguing that (A) EPA did not provide sufficient record support for basing the standard on preventing a decrease of more than two IQ points, (B) reliance on particular studies relating blood lead levels and IQ was arbitrary and capricious, and (C) selection of a lead standard of 0.15 µg/m3 was arbitrary and capricious when measured as an average over a rolling three-month period. The court deferred to EPA.
EPA Notifies States of Nonattainment Designation Recommendations for Lead NAAQS
EPA notified 12 states that the agency is recommending that one or more areas in their jurisdictions be designated nonattainment for the lead NAAQS that was revised in October 2005 to 0.15 micrograms per cubic meter. States and tribes may comment on the recommendations and provide additional information to EPA by August 15, 2010. EPA will issue final nonattainment designations by October 2010.
New EPA SO2 Standard
EPA is establishing a new 1-hour SO2 standard at a level of 75 parts per billion (ppb), based on the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. The EPA is also revoking both the existing 24-hour and annual primary SO2 standards.This final rule is effective on August 23, 2010. See 75 Fed. Reg. 35519 (June 22, 2010). EPA plans to finish designations by June 2012. States with nonattainment areas in 2012 will need to submit state implementation plans (SIPs) by early 2014; for all other areas, states will need to submit maintenance or infrastructure SIPs by June 2013. Attainment must be demonstrated by August 2017. The final rule does not address the secondary SO2 standard, which is being assessed under a separate review.
Petition to Set NSPS Air Pollution Limits for Coal Mines (see attached)
WildEarth Guardians, Center for Biological Diversity, the Environmental Integrity Project and the Sierra Club filed a petition with EPA to both list coal mines as a source of harmful air pollution and to ensure the best systems of emission reduction are used to control this pollution. The petition cites emissions of the powerful greenhouse gas methane, and of particulate matter and nitrogen oxides.
Congress Adopts California Formaldehyde Emission Standards for Composite Wood Products as a new Air Emissions Provision to be known as TSCA Title VI
In the early 1990’s, formaldehyde was identified as a outdoor hazardous air pollutant for which emissions standards were required. Indoor emissions of formaldehyde also became a national story with respect to the housing provided for Katrina victims for exposure to "off-gassing" formaldehyde from trailer construction materials. The California Air Resources Board adopted composite wood formaldehyde emissions standards, which, on January 1, 2009, became effective in California for controlling formaldehyde emissions from composite wood products, including those products incorporated into finished goods. As of June, 2010, Congress has adopted an amendment to TSCA that sets national Formaldehyde Standards for Composite Wood Products, adding a new Title VI to TSCA. Title VI of TSCA will lead to federal adoption of portions of the CARB standards.
Boiler and CISWI MACT Proposals Published June 4, 2010
EPA has held public hearings on the proposed area and major source standards for Industrial, Commercial and Institutional Boilers and Commercial/Industrial Solid Waste Incinerators, which proposed rules were published in the Federal Register on June 4, 2010. EPA’s proposed rule will address emissions of HAPs from Industrial, Commercial and Institutional Boilers located at major and area sources and the major source standard – the MACT – will also apply to process heaters. EPA’s proposed standards for Commercial/Industrial Solid Waste Incinerators are related to the boiler rules because the applicability of either the boiler or CISWI rules is affected by the definition of non-hazardous solid waste. CISWIs are boilers that burn non-hazardous solid wastes, not including municipal or medical solid waste incinerators. EPA proposed new source performance standards and emission guidelines for emissions of hazardous air pollutants from CISWIs along with the proposed definition of RCRA non-hazardous solid wastes.
EPA STATEMENT ON TEXAS AIR PROGRAM and USE OF AUDITS June 2010
Texas flexible permits have never been incorporated into the Federally approved State Implementation Plan, and thus, only contain applicable State permit requirements. Flexible permits are not the appropriate mechanisms for embodying Federal requirements, and are not independently Federally-enforceable.
On September 25, 2007, EPA sent notice letters to all facilities that were issued a flexible permit informing them that flexible permits were pertinent only to Texas State air permit requirements and that facilities were ``obligated to comply with the Federal requirements applicable to (their) plant, in addition to any particular requirements of (their) flexible permit.'' Moreover, on September 23, 2009, EPA proposed the disapproval of the Texas flexible permit program as an amendment to the Texas SIP because it does not meet Federal Nonattainment New Source Review or Prevention of Significant Deterioration requirements. EPA followed that proposal with several objections to Title V permits that relied on flexible permits to encompass Federal NSR requirements because the terms of the Texas flexible permit are not incorporated into the Federally approved Texas SIP.
Under the Audit Program, participants would need to commission a comprehensive third-party audit to determine all Federally applicable unit-specific limitations and requirements and to evaluate the Federal CAA compliance status of emission units covered under the facility's Texas flexible permit.
The third-party auditor would identify for each emission unit regulated under the source's flexible permit all current Federally applicable CAA requirements, including: (1) Emission limitations/standards; (2) operational limitations/special conditions; (3) MRR requirements; and (4) specific references for all Federal requirements identified (e.g., permit number, specific Maximum Achievable Control Technology, State Implementation Plan citation). The auditor will also need to review and assess the adequacy of the current flexible permit MRR requirements to evaluate compliance with Federally enforceable unit-specific emission limitations. Where deficiencies exist, the auditor will provide recommendations for more effective or supplemental MRR.
To the extent that it is determined that a source is not in compliance with NSR requirements with respect to a particular emission unit, the auditor will include an evaluation of the current (2010) Lowest Achievable Emissions Rate or Best Available Control Technology for that emissions unit and will recommend an applicable LAER/BACT limit for that emissions unit. Identification of non-compliance with NSR requirements through the Audit Program may require further discussion with EPA regarding a path forward for bringing that emission unit into permanent, consistent compliance with the CAA and appropriate resolution of civil penalties.
The primary deliverable from the third-party audit will be a detailed audit report that describes the audit process and its conclusions, including clearly organized summary tables of all applicable CAA requirements for each emissions unit that will provide the basis for necessary permitting revisions by the Texas Commission on Environmental Quality. In addition to identifying all applicable unit specific emission limitations, special conditions, operating parameters, and MMR requirements, the auditor will evaluate the CAA compliance status of the emissions units included under the Texas flexible permit. The audit participant will then have an opportunity to comment on the results of the third-party audit, and to propose to EPA alternative emission unit requirements. The parties may elect to negotiate emission unit requirements in the post-audit period. The emission unit requirements agreed upon during the post-audit negotiation with EPA would be memorialized in a Consent Agreement and Final Order with EPA. The CAFO would set forth the agreed upon emission unit requirements and would require their inclusion in an amended Title V permit and appropriate Federally-enforceable non-Title V permits (e.g., NSR, Texas SIP permits).
As part of the Audit Program, the audit participant will also agree to work with its surrounding community to develop community project(s) focused on improving, protecting, mitigating, and/or reducing community risks to public health or the environment that could have been caused by potential violations by the audit participant. The details of the community projects will be fully described in the CAFO memorializing the results of the audit.
Participation in the Audit Program is purely voluntary, and this is not a rulemaking by the Agency. Interested parties are required to submit an executed audit agreement to enroll in this program. Participants choosing to enroll in the Audit Program will be required to meet the specific requirements of the third-party audit set forth in this Notice and memorialized in an audit agreement signed by the audit participant and EPA. It is important to emphasize that although participation in this Audit Program is voluntary, participants who successfully complete the program will receive appropriate covenants in resolution of non-compliance. Persons who have not secured independently Federally-enforceable construction and/or operating permits for all CAA applicable requirements, through participation in this program or through other appropriate mechanisms, may be the subject of Federal enforcement action.
Regional U.S. Greenhouse Gas Programs GHG Offsets Guidance
In Ensuring Offset Quality: Design and Implementation Criteria for a High-Quality Offset Program, the Regional Greenhouse Gas Initiative, the Western Climate Initiative, and the Midwestern Greenhouse Gas Reduction Accord issued a May, 2010 white paper (see attached) on policy for GHG offset policy design and implementation components. The validity of offsets could be determined through standardized requirements rather than project-by-project determinations of which offsets can be used for compliance. The Kyoto Protocol’s Clean Development Mechanism and the European Union’s original offset program relied on a project-by-project system.
NM agency asks for hearing on emissions plan (see attached FAQs)
The New Mexico Environment Department is asking a state regulatory panel to consider a proposed regulation to cap and trade greenhouse gas emissions in the state. The department filed a June 4, 2010 petition seeking a hearing before the Environmental Improvement Board.
Fifth Circuit Issues Unusual Procedural Ruling That Vacates Last Year’s Decision on Global Warming Appeal (see attached)
In 2009, a three-judge panel of the Fifth Circuit Court of Appeals issued an opinion in Comer v. Murphy Oil Co., holding that plaintiffs who blamed Hurricane Katrina on climate change caused by energy, mining and oil companies had standing to bring a claim and were not precluded by the political question doctrine. The losing defendants petitioned for rehearing en banc. The Fifth Circuit granted the petition with only 9 judges who had not recused themselves due to their financial interests in companies to be impacted. In an unusual situation, before oral argument could be held, another judge recused, making the total number of unrecused judges less than a majority of the court. The remaining panel of eight en banc judges in Comer v. Murphy Oil Co. issued an opinion on May 28, 2010 dismissing the appeal, observing that the prior opinion and judgment of the three-judge panel had been properly vacated when nine judges voted to rehear the case en banc. Thus, the 2009 industry-adverse GHG nuisance ruling from the 5th Circuit is gone, but on very odd procedural grounds as opposed to any substantive ruling that such GHG damage claims are invalid. This leaves the 2nd Circuit as the one circuit court holding GHG damage claims against big GHG emitters can proceed, and the 9th Circuit will rule on similar issues in the Kivalina, Alaska case. Kivalina v. ExxonMobil Corporation, 663 F. Supp. 2d 863 (N.D. Cal. 2009), in which the district court dismissed plaintiffs’ suit for climate change damages, is pending on appeal before the Ninth Circuit. The opening brief was filed in March, 2010. Eventually, given the stakes, one might imagine a decision coming from the United States Supreme Court.
LEED and Indoor Air Quality Conflicts
According to a report entitled "LEED Certification: Where Energy Efficiency Collides with Human Health," (see attached) there may be some significant conflicts between LEED energy efficiency certification and indoor air quality health issues. As buildings become tighter and thus more energy-efficient, there is more danger of locking in indoor air pollutants.
EPA Final Rule Sets Thresholds for Triggering GHG Regulation at Stationary Sources Under Clean Air Act - Some Facilities Regulated As of January 2, 2011
On May 13, 2010, EPA issued the final "tailoring" rule that sets GHG permitting requirements for stationary sources of greenhouse gases. The tailoring rule substantially increases the emissions thresholds for greenhouse gases that trigger the need for a PSD construction permit and a Title V operating permit, and the final rule gradually phases in application of those two permitting programs to GHG sources to mute political criticism. In the years 2011-2012, EPA estimates that about 900 new and modified facilities a year will be required to obtain permits, likely to be coal-fired plants, refineries, cement plants and solid waste landfills. The BACT requirement triggered by PSD is the only one that sets actual emissions limitations for GHGs. The BACT limit for a pollutant is set based on the emission reduction that can be achieved through application of the best technology that would be economically and technologically feasible for the particular stationary source to install.
EPA has decided to phase in GHG regulation under the Clean Air Act at a much slower pace than otherwise would be required if this rule were not issued. First, for the time period of January 2, 2011 to June 30, 2011, for PSD construction permits, only sources that trigger PSD due to their non-GHG emissions would be required to address GHG emissions in their PSD permits, and then only if their GHG emissions (new emissions or an increase due to a modification) exceed 75,000 tons a year . Best Available Control Technology will be required for these GHG emissions. Second, for the time period of January 2, 2011 to June 30, 2011, for operating permits, only sources already required to obtain an operating permit during this time frame due to their non-GHG emissions would be required to incorporate GHG-related requirements into their operating permits. Right now those would only include GHG reporting requirements at 40 CFR Part 98, unless the facility had obtained a PSD permit in this Jan. 2- June 30, 2011 time period that imposed BACT limitations for GHG emissions. Third, for the time period of July 1, 2011 to June 30, 2013, new construction emitting at least 100,000 tons per year of GHGs would trigger PSD construction permitting, even if a PSD permit was not triggered for other regulated pollutants. Modifications to existing sources would trigger PSD and BACT if they would increase GHG emissions by more than 75,000 tons per year (during this time period of July 1, 2011 to June 30, 2013). Fourth, for the time period of July 1, 2011 to June 30, 2013, stationary sources emitting at least 100,000 tons of GHGs a year would need a Title V operating permit, even if not required to obtain one based on emissions of any other regulated pollutants. EPA will address other GHG stationary sources in another rulemaking it has announced.
Click here for the Time Line for GHG Permitting Rule
Click here for the Fact Sheet for GHG Tailoring Rule
EPA ADDS ELECTRONICS MANUFACTURING, ELECTRICAL TRANSMISSION, OIL & GAS, AND CARBON SEQUESTRATION TO GREENHOUSE GAS REPORTING RULES; NEW REQUIREMENT FOR MORE CORPORATE INFORMATION FOR ALL GHG REPORTERS
Subpart A – General Provisions Affecting All Reporters under GHG Reporting Rule
Corporate Parent/NAICS Code Amendments
On March 22, 2010, EPA proposed amendments to the General Provisions subpart (subpart A) for the mandatory reporting of greenhouse gases (MRR). Under this proposal, facilities reporting GHG emissions under the Mandatory Greenhouse Gas Reporting rule would also be required to report their corporate parent companies, the North American Industry Classification System code that apply to the facility and whether or not emissions reported include emissions from a cogeneration unit. These three reporting requirements would be included in the first annual GHG emissions reports submitted to EPA on March 31, 2011 and in all future years.
This proposal also would amend the Mandatory Reporting of GHGs Rule that was promulgated on October 30, 2009 (74 FR 56260) by adding reporting requirements for the following source categories.
Subparts I, L, DD, OOa, SS
On March 22, 2010, Administrator Jackson signed a proposed rule for the mandatory reporting of fluorinated greenhouse gases (F-gases) from facilities that emit 25,000 metric tons or more of carbon dioxide equivalent per year. The gases covered in this subpart include hydrofluorocarbons (HFCs), nitrogen trifluoride (NF3), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Facilities would be required to submit annual reports to EPA. This proposal would require reporting of fluorinated GHG from the following source categories:
- Subpart I – Electronics manufacturing (including manufacture of semiconductors, photovoltaic, liquid crystal display, and micro-electro-mechanical systems)
- Subpart L – Fluorinated gas production
- Subpart DD – Use of electric transmission and distribution equipment
- Subpart OOa – Imports and exports of equipment pre-charged with fluorinated GHGs or containing fluorinated GHGs in closed-cell foams
- Subpart SS – Manufacture of electric transmission and distribution equipment
Subpart RR–Carbon Dioxide Injection and Geologic Sequestration
On March 22, 2010, EPA signed a proposed rule for the mandatory reporting of greenhouse gases (GHGs) from facilities that inject carbon dioxide underground for the purposes of geologic sequestration or enhanced oil and gas recovery. Geologic sequestration (GS) is the long-term containment of carbon dioxide in subsurface geologic formations. This proposal is complementary to and builds on EPA's proposed rule for Federal Requirements under the Underground Injection Control (UIC) Program for Carbon Dioxide Geologic Sequestration Wells.
Subpart W–Petroleum and Natural Gas Systems
On March 22, 2010, EPA signed a proposed rule for the mandatory reporting of vented and fugitive methane (CH4) and carbon dioxide (CO2) emissions from petroleum and natural gas industry facilities emitting 25,000 metric tons or more of carbon dioxide equivalent per year.
PM-10 SURROGATE POLICY CHANGES PROPOSED BY EPA
In May 2008, EPA issued a final rule requiring state permitting authorities to transition away from the PM10 surrogate policy to direct regulation of PM2.5 with two exceptions. First, sources that applied for PSD permits before July 15, 2008 but had not yet received their permits were subject to a grandfather provision and could still use the PM10 surrogate policy. Second, SIP-approved states could continue to use the PM10 surrogate policy until May 2011 or until EPA approved a state’s revised PSD regulations, whichever came first. EPA issued a February 11, 2010 proposed rule that would end the grandfather provision, because EPA believes the technical difficulties that justified the surrogate policy no longer exist. A source that submitted a PSD permit application before July 15, 2008 and has not yet received a permit would have to demonstrate that its emissions of PM2.5 will not cause or contribute to a NAAQS violation and perform a BACT review for PM2.5. The proposal would still allow states with approved PSD programs to apply the surrogate policy until EPA approves revised PM2.5 regulations or May 2011 (whichever is earlier). However, EPA states that permitting agencies "should not … allow[ ] the automatic use of a PM10 analysis as a surrogate for satisfying PM2.5 requirements," and requires any state permitting agency "to justify the application of the [surrogate] policy in each specific case." 75 Fed. Reg. at 6,834. EPA recognizes that many approved state PSD rules do not include a PSD significance threshold for PM2.5. That could mean that increases below the federal threshold of 10 tons/year in PM2.5 emissions could trigger PSD review. EPA is seeking comment on whether the lack of a defined PM2.5 PSD trigger is an obstacle to eliminating the surrogate policy.
NATIONAL STRATEGY TO ADAPT TO CLIMATE CHANGE IMPACTS
A March 16, 2010 Interim Progress Report on how the United States government is planning to adapt to the impacts of climate change was released by the White House Interagency Climate Change Adaptation Task Force, which includes representatives from more than 20 Federal Agencies. It recommends six key components for the national strategy on climate change adaptation (1) Integration of Science into Adaptation Decisions and Policy; (2) Communications and Capacity-building; (3) Coordination and Collaboration; (4) Prioritization; (5) A Flexible Framework for Agencies; and (6) Evaluation. President Obama ordered in Executive Order 13514 (dated October 5, 2009) establishment of an integrated strategy towards sustainability in the Federal Government. Part of the order called for Agency actions in support of adaptation to climate change. The Final Report will be presented to the President in October 2010.
According to the March 16, 2010 interim report, "climate change is affecting, and will continue to affect, nearly every aspect of our society and the environment. Some of the impacts are increased severity of floods, droughts, and heat waves, increased wildfires, and sea level rise. Climate change impacts are pervasive, wide-ranging and affect the core systems of our society: transportation, ecosystems, agriculture, business, infrastructure, water, and energy, among others. Climate change already is affecting the ability of Federal agencies to fulfill their missions."
The report indicates that a national strategy for climate change adaptation and resilience "should emphasize two major changes in the way the U.S. government operates. First, agency climate change adaptation and resilience requires a flexible, forward thinking approach. This represents a shift away from using past conditions as indicators of the future, and a requirement for on-going investigation, revision and adaptive management. Second, responses to climate change challenges and opportunities should be integrated into current plans, processes and approaches of the U.S. government. This integration will allow adaptation and building resilience to become part of existing activities, and to be considered within the context of the broader system of stresses, risks and opportunities."
FEDERAL & CALIFORNIA AGENCIES SEEK GREEN BUILDING CERTIFICATION
U.S. agencies are required to have 15 percent of their existing building inventory incorporate sustainable elements by 2015 under Executive Order 13423, signed by George W. Bush in 2007. As one example of the impact of this George Bush order, the Department of Veterans Affairs aims to have 21 facilities reviewed and rated by third-party green building systems by the close of this year. 'Reaching the goal of 21 third-party certifications in 2010 will make VA a leading example of green achievement,' said Secretary of Veterans Affairs Eric K. Shinseki in a prepared statement. 'We will proudly reach and surpass the 15 percent requirement before 2015.' In order to demonstrate sustainable elements in its existing building stock and satisfy Executive Order 13423, Veterans Affairs is obtaining Green Globes certification for existing buildings. Obtaining green building certification for a federal building will be an increasingly common step towards an agency's compliance with Executive Order 13423. The federal government also is pushing federal investment in green buildings through $25 billion allocated from the American Recovery and Reinvestment Act and through the Executive Order 13514, which includes numerous building efficiency requirements.
Since 2004 all new state buildings in California have been required to obtain LEED Silver certification. The Governor of California in an effort to further green building was poised to pass a green building code which would would slash water use, mandate the recycling of construction waste, cut back on polluting materials and step up enforcement of energy efficiency in new homes, schools, hospitals and commercial buildings statewide.
EPA Proposes Area and Major Source Air Toxics Standards for Industrial Boilers
April 29, 2010 EPA issued proposed rules under Section 112 of the Clean Air Act to address emissions of hazardous air pollutants from Industrial, Commercial and Institutional Boilers located at major and area sources. The major source standard – the MACT – will also apply to process heaters. The proposed rule for major sources applies to 11 subcategories of boilers and process heaters and includes specific requirements for each. EPA is proposing emission limits for mercury, dioxin, particulate matter (as a surrogate for non-mercury metals), hydrogen chloride (as a surrogate for acid gases) and carbon monoxide (as a surrogate for non-dioxin organic air toxics) for existing units that burn oil, coal, biomass or gases other than natural or refinery gas and with a heat input capacity greater than 10 million BTUs/hour. For smaller units and those using natural or refinery gas, EPA is proposing work-practice standards instead of emission limits. The area source proposal addresses units that burn coal, oil, biomass or non-waste materials, but does not address natural or refinery gas-fired units. Smaller units (under 10 million BTU/hour) would be required to meet work-practice standards, while larger units would be subject to emission limits for PM, CO and/or mercury, depending on whether they are new or existing or coal-fired or not. EPA estimates that there are over 13,000 major source boilers and 183,000 area source boilers nationally. EPA has also proposed standards for Commercial/Industrial Solid Waste Incinerators and a definition of non-hazardous solid waste. These are related to the boiler rules because the applicability of the boiler and CISWI rules is affected by the definition of non-hazardous solid waste.
Case-by-Case MACT
On March 30, 2010, EPA published a proposed rule to clarify their position on the use of case-by-case MACT. The rule specifically impacts the PVC production industry, the brick industry, the clay ceramics manufacturing industry, the commercial and industrial solid waste incinerator facilities, and the industrial boiler facilities. All of these rules have been promulgated by EPA and vacated by the courts. EPA makes it clear that they believe the court vacatur of these rules makes them subject to the case-by-case requirements in section 112(j) of the Clean Air Act. The proposed rule sets up a streamlined case-by-case permit application process and resets the deadline for submitting the permit application at 90 days after the rule is finalized. The proposed rule will also eliminate the ability for facilities to request an applicability determination over whether case-by-case applies. EPA estimates that this rule, if finalized, would impact 19 PVC facilities, 122 brick facilities, 8 clay facilities, and 15,500 boilers.
EPA Proposes Standards for Commercial/Industrial Solid Waste Incinerators and Definition of Non-Hazardous Solid Waste
April 29, 2010 EPA also has proposed new source performance standards and emission guidelines for emissions of hazardous air pollutants from Commercial/Industrial Solid Waste Incinerators under Section 129 of the Clean Air Act. CISWIs are boilers that burn non-hazardous solid wastes, not including municipal or medical solid waste incinerators. At the same time, EPA has issued a proposed definition of non-hazardous solid wastes under the Resource Conservation and Recovery Act (RCRA), which determines which sources are subject to CISWI. EPA’s previous CISWI rule had been vacated in June 2007, along with the agency’s rules for Industrial, Commercial and Institutional Boilers. The new regulations for boilers have been proposed as well. Sources burning non-hazardous wastes that are not defined as CISWIs would likely be subject to the boiler regulations. The proposed rule calls for reductions at 172 of the 176 CISWI units. It would impose emission limits for mercury, lead, cadmium, hydrogen chloride, particulate matter, carbon monoxide, dioxins/furans, nitrogen oxides and sulfur dioxide. Sources can choose to meet the emission limits or use alternative waste-disposal options (e.g., diverting waste to landfills).
BUSH EPA FUGITIVE EMISSIONS RULE CHANGE NOW POSTPONED UNTIL AT LEAST OCTOBER 3, 2011 (AND POSSIBLY FOREVER?)
EPA is issuing a stay for 18 months (until October 3, 2011) of the inclusion of fugitive emissions requirements in the federal Prevention of Significant Deterioration (PSD) program published in the Federal Register on December 19, 2008, in the final rule entitled, ``Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Fugitive Emissions''. The Fugitive Emissions Rule under the federal PSD program requires that fugitive emissions be included in determining whether a physical or operational change results in a major modification only for sources in industries that have been designated through rulemaking under section 302(j) of the CAA. The existing stay is in effect for 3 months; that is, from December 31, 2009 until March 31, 2010. This action puts in place an additional stay for 18 months until October 3, 2011.
EPA states the 18 month additional stay will provide adequate time for EPA to propose, take comment on, and issue a final action on issues that are associated with the inclusion of fugitive emissions. Therefore, EPA issued an additional stay of the final Fugitive Emissions Rule in the federal PSD program at 40 CFR 51and 52 for 18 more months.
Las Vegas Man Added to EPA's Fugitive List; Man Indicted for Violating Clean Air Law
Joseph DeMatteo of Clark County, Nevada has been added to the EPA fugitive Web site for failing to surrender to federal law enforcement authorities following his indictment for criminal violations of the Clean Air Act. DeMatteo was one of 10 Nevada-certified emissions testers indicted on Jan. 6 by a federal grand jury for one felony count for falsifying vehicle emissions test reports in Las Vegas between Nov. 2007 and May 2009. The maximum penalty for the felony violations contained in the indictment includes up to two years in prison and a fine of up to $250,000. Las Vegas is required to perform emissions testing because currently it violates ozone and carbon monoxide standards.
All of the defendants, including DeMatteo, are alleged to have engaged in a practice known as "clean scanning" vehicles. The scheme involved entering the vehicle identification number for a vehicle that would not pass the emissions test into the computerized system, then connecting a different vehicle the testers knew would pass the test. The allegedly falsified data was recorded on the vehicle inspection report, and an inspection report passing the vehicle was issued for anywhere from $10 to $100 more than the usual emissions testing fee. It is a crime to knowingly alter or conceal any record or other document required to be maintained by the Clean Air Act. An indictment is merely an accusation, and a defendant is presumed innocent unless and until proven guilty in a court of law.
GHGs REGULATED UNDER PSD AS OF JANUARY 2, 2011 - NO GRANDFATHERING FOR PENDING PSD APPLICATIONS
In the April 2, 2010 Federal Register, EPA made clear when the requirements of the PSD permitting program for stationary sources will apply to GHGs.GHGs will initially become "subject to regulation'' under the Clean Air Act PSD program on January 2, 2011, because on April 1, 2010 EPA issued final GHG emissions standards under section 202(a) applicable to model year 2012 new motor vehicles with the first limit under that rule becoming effective, according to EPA, on January 2, 2011. EPA's determination that PSD will begin to apply to GHGs on January 2, 2011 is based on the following considerations: (1) The overall interpretation reflected in the PSD Interpretive Memo; (2) EPA's conclusion in this notice that a pollutant becomes subject to regulation when controls "take effect,'' and (3) the EPA issuance of emissions standards for model year 2012 vehicles when it completed the vehicle rule on April 1, 2010.
As a result, with that assumption, the PSD permitting program would apply to GHGs on that date of January 2, 2011. However, the Tailoring Rule proposed various options for phasing in PSD requirements for sources emitting GHGs in various amounts above 100 or 250 tons per year. The final Tailoring Rule will address the applicability of PSD requirements for GHG-emitting sources that are not presently subject to PSD permitting.
In light of EPA's conclusion that pollutants become subject to regulation for PSD purposes when control requirements on that pollutant take effect and that such requirements will not take effect for GHGs until January 2, 2011, EPA does not see any grounds to establish a transition period for permit applications that are pending before GHGs become subject to regulation.
Mandatory GHG Reporting for Facilities that Inject CO2 Underground
On March 22, 2010, EPA signed a proposed rule for the mandatory reporting of greenhouse gases (GHGs) from facilities that inject carbon dioxide underground for the purposes of geologic sequestration or enhanced oil and gas recovery. Geologic sequestration is the long-term containment of carbon dioxide in subsurface geologic formations. EPA is proposing that all facilities that inject CO2 for the purpose of long-term geologic sequestration or to enhance oil and gas recovery report basic information on CO2 injected underground. In addition, geologic sequestration facilities that inject CO2 specifically for the purpose of long-term containment in subsurface geologic formations would also be required to develop and implement an EPA approved site-specific monitoring, reporting, and verification (MRV) plan and to report the amount of CO2 geologically sequestered using a mass balance approach. Geologic sequestration research and development (R&D) projects (projects that receive federal funding for researching monitoring techniques and practices) would not be required to develop MRV plans or report the additional information required for geologic sequestration, but could choose to opt-in to these requirements.
For those facilities that inject CO2 for the purposes of enhanced oil and gas recovery [such as the big Anadarko project in Wyoming] and only report injection data, EPA estimates the annualized cost of reporting for each facility to be $4,000. For those facilities that inject CO2 for the purposes of long-term geologic sequestration, additional reporting and monitoring would be required as indicated above and the estimated annualized cost of reporting for each facility required to report geologic sequestration is $300,000.
Most facilities that inject CO2 underground hold permits through EPA’s Underground Injection Control permitting program under the Safe Drinking Water Act. This rulemaking does not change any of the requirements to obtain or comply with a UIC permit. Through a separate rulemaking effort USEPA has proposed federal requirements under the UIC program for the underground injection of carbon dioxide to ensure protection of underground sources of drinking water. The first annual reports of CO2 injection amounts would be due to USEPA by March 31, 2012 for injection that occurs in 2011.
American Lung Association Releases "State of the Air"
The American Lung Association released its annual State of the Air report, which looks at levels of ozone and fine particulate matter (PM2.5) found in monitoring sites across the U.S. According to the ALA report, nearly six out of ten Americans live in areas with unhealthy levels of air pollution.
EPA PROPOSES NEW OZONE NAAQS (between .060 and .070 ppm)
The agency is proposing to set the "primary" standard, which protects public health, at a level between 0.060 and 0.070 parts per million (ppm) measured over eight hours. EPA is also proposing to set a separate "secondary" standard to protect the environment, especially plants and trees. This seasonal standard is designed to protect plants and trees from damage occurring from repeated ozone exposure, which can reduce tree growth, damage leaves, and increase susceptibility to disease. EPA also announced a final rule promulgation expected date of August 31, 2010 and a new deadline for designating nonattainment airsheds of March 12, 2011 (see attached).
In September 2009 Administrator Jackson announced that EPA would reconsider the existing ozone standards, set at 0.075 ppm in March 2008. As part of its reconsideration, EPA conducted a review of the science that guided the 2008 decision, including more than 1,700 scientific studies and public comments from the 2008 rulemaking process. EPA also reviewed the findings of the independent Clean Air Scientific Advisory Committee, which recommended standards in the ranges proposed today. EPA will take public comment for 60 days after the proposed rule is published in the Federal Register. The agency will hold three public hearings on the proposal: Feb. 2, 2010 in Arlington, Va. and in Houston; and Feb. 4, 2010 in Sacramento. The fact sheet for the 2010 New Ozone Standards can be found here.
Tougher Short Term SO2 NAAQS Standard Proposed, Elimination of Annual Standard
On November 16, 2009, EPA proposed replacing the current 24 hour SO2 Air standard of 140 ppb and annual SO2 Air standard of 30 ppb with a single one-hour SO2 Air standard to be set within a range between 50 ppb and 100 ppb, meeting its obligations from a court order dating back many years. The existing primary standards were 140 ppb measured over 24 hours and 30 ppb measured over an entire year, and EPA is proposing to revoke these two standards. EPA is not proposing to revise the secondary standard at this time. EPA states that the new one-hour standard will prevent SO2 concentrations from exceeding the current 24-hour standard. With respect to the deregulatory side, EPA concluded that there is insufficient scientific evidence demonstrating an association between long-term exposure to SO2 and public health effects. As a result, EPA proposed to revoke completely the annual primary SO2 standard. Large sources of SO2 emissions are fossil fuel combustion at power plants (66 percent) and other industrial facilities (29 percent).
The last review of the SO2 NAAQS was completed in 1996 and EPA chose not to revise the standards. The decision not to set a five-minute standard in 1996 was challenged successfully by the American Lung Association, and the court remanded the standards back to EPA in 1998. EPA had not taken any formal action with regard to the remand until this proposal. Under the terms of a judicial consent decree, EPA must complete its review of the primary SO2 standard by June 2, 2010. The proposal also contains a proposed implementation rule. Airshed grades of attainment and nonattainment (designations) would occur in June 2012. Airsheds would then have until the winter of 2014 to submit their state implementation plan revisions. Airshed attainment with the new one-hour standard will be required by summer 2017.
EPA is also proposing changes to the ambient air monitoring and reporting requirements for SO2. These proposed requirements are expected to result in a minimum of 348 SO2 monitoring sites. EPA estimates that at least one-third of the SO2 monitors already in operation may meet the proposed siting requirements. The agency will hold a public hearing on the proposed rule January 5, 2010, in Atlanta, GA.
Industrial Boiler MACT Rule Proposal Now Pushed Back to April 15, 2010
September 10, 2009: The court involved in the lawsuit over boiler MACT rules granted an unopposed motion to extend the deadline for the combined industrial boiler/CISWI rules. EPA how has until April 15, 2010, to propose the rules and until December 16, 2010, to finalize. EPA is currently gathering data from over 300 facilities. These data are due to the Agency by October 15, 2009. It will be difficult for EPA to correct any errors in the data, decide how to analyze the data, complete the analysis, write a proposed rule, and get it reviewed by the Office of Management and Budget between now and April 15, 2010. Given the restricted time line and the way EPA developed the final HMIWI rule, it appears likely that EPA will use a straight emissions method to select the top performers.
EPA Final Rule PM 2.5 Non-Attainment Areas October 8, 2009
In 2006, the EPA strengthened the 24-hour fine particle standards from 65 micrograms per cubic meter to 35 micrograms per cubic meter of air. The EPA announced on October 8, 2009 it is designating 31 areas across the country as not meeting the agency's new daily standards for fine particle air pollution (PM 2.5), or particulate matter. These areas, made up of 120 full or partial counties, were designated as "nonattainment" because their 2006 to 2008 air quality monitoring data showed that they did not meet the agency's health-based standards. Affected areas will be required to take steps to reduce the pollution that forms fine particles.
In December 2008, after closely reviewing recommendations from states and tribes along with public comments, the EPA identified attainment and nonattainment areas based on air quality monitoring data from 2005 through 2007. The December 2008 designations were never published in the Federal Register and have been under review. Because the 2008 air quality data is the most recent, the EPA used this data to make final designations. Using the 2006 to 2008 data, 91 U.S. counties that were identified as previously nonattainment in December 2008 are now meeting the standards. The new data also showed that four new counties in three states are violating the daily PM 2.5 standards, the annual PM 2.5 standards, or both. The EPA will work with these four counties to evaluate air monitoring data and other factors to make final designations by early 2010.
Activists Seek First Time EAB Ruling On Effort To Win Process-Wide BACT
Environmentalists are petitioning EPA’s Environmental Appeals Board in a bid to win a first-time board ruling on their argument that Clean Air Act best available control technology (BACT) reviews should weigh all emission points in a facility’s process, which activists say could lead to increased use of fuel-switching as BACT. A copy of the 2009 legal appeal can be found here.
ATTORNEYS GENERAL TO DEFEND EPA APPROVAL OF CALIFORNIA GHG VEHICLE EMISSIONS STANDARDS
On June 13, 2009, the EPA granted a Clean Air Act waiver to California, allowing it – and other states such as Arizona – to implement global warming pollution emission standards for cars. On September 8, 2009, NADA and the U.S. Chamber of Commerce brought a lawsuit that challenges this waiver from the EPA. The federal Clean Air Act grants California – exclusively among all states – the power to enact its own air pollution standards for cars. The CAA also allows other states to adopt California’s standards, but those standards can only take effect if the EPA grants a waiver exempting California from federal regulation. The California standards, adopted in September 2004, would reduce emissions of greenhouse gases from cars by 30% by 2016. Arizona adopted California’s standards in April 2008, and at least 17 other states have now either adopted or plan to adopt the California standards.
Attorney General Terry Goddard announced in late October, 2009 that he is taking action to support local control by defending the U.S. Environmental Protection Agency’s decision to grant states the right to regulate global warming pollution from automobiles. Goddard, along with a coalition of 17 other state Attorneys General, filed a motion to intervene a lawsuit brought by the National Automobile Dealers Association (NADA) and the U.S. Chamber of Commerce that seeks to deny individual states the ability to limit greenhouse gas emissions from cars.
The coalition is moving to intervene on the EPA’s behalf in a challenge to the EPA waiver decision that was filed in the United States Court of Appeals for the District of Columbia on September 8, 2009. The states or state agencies in the coalition are: Arizona, Connecticut, Delaware, Florida Department of Environmental Protection, Illinois, Iowa, Maine, Maryland, Minnesota, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania Department of Environmental Protection, Rhode Island, Vermont and Washington. The State of California has also moved to intervene on the EPA’s side.
Sept 30, 2009 FHWA Guidance On Roadway Air Toxics for Transportation Projects (Mobile Source Air Toxics or MSATs)
In February 2006, FHWA issued interim guidance to assist transportation agencies with project-level MSAT analyses. The interim guidance was updated in September 2009. The interim guidance suggests three options for NEPA documentation: no analysis, a qualitative analysis, or a quantitative analysis, depending upon the project’s scope and potential for meaningful MSAT effects. Qualitative assessments should consider project impacts on traffic volumes, speeds, vehicle mix, or traffic routing, and expected changes in MSATs. Qualitative analyses can also discuss the overall downward trend in forecasted MSAT emissions. Controversial projects and projects with higher potential MSAT effects should be analyzed quantitatively. EPA, in its February 2007 MSAT rule, noted that elevated pollutant concentrations are generally observed within the first 200 meters of a road, and that studies of several pollutants found that concentrations reach background approximately 300 meters from a road.Quantitative analysis should estimate emissions for the six priority MSATs EPA identified in its 2001 MSAT rule (benzene; 1,3 butadiene; formaldehyde; acrolein; acetaldehyde; and diesel particulate matter (DPM) and diesel organic gases). Mitigation options should be considered if the quantitative analysis indicates "meaningful differences" in MSAT emissions. See, Interim Guidance on Air Toxic Analysis in NEPA Documents (FHWA, Sept. 30, 2009).
NUMBER TWO AT EPA AIR OFFICE A KID’S HEALTH ADVOCATE
A children's health advocate has been picked for second in command at U.S. EPA's air office. Janet McCabe, executive director of the Indianapolis-based nonprofit Improving Kids' Environment, became principal deputy assistant administrator of EPA's Office of Air and Radiation on Nov. 9, 2009 . Ms. McCabe is a graduate from Harvard Law School with more than twenty years of experience protecting public health and the environment. From 2005 through 2009, she headed IKE, a non-profit, advocacy organization dedicated to reducing environmental threats to children's health. From 1993 through 2005, she worked for the Indiana Department of Environmental Management’s Office of Air Quality in various leadership positions. She was the office’s Assistant Commissioner from 1998 to 2005. As Assistant Commissioner, she oversaw all aspects of Indiana’s air pollution control programs, including rulemaking, permitting, monitoring, inspections, and outreach. Her office also included Indiana’s asbestos and lead-based paint activities programs. Before 1993, Ms. McCabe served as Assistant Attorney General for environmental protection for the Commonwealth of Massachusetts and Assistant Secretary for Environmental Impact Review overseeing environmental impact revised of major public and private projects.
EPA STILL WORKING ON ENFORCEMENT PRIORITY LIST for 2010-2013
EPA is still evaluating its list of national priority enforcement areas for 2011 through 2013 as part of its three-year review. EPA had asked for comments on criteria for setting priorities, suggestions for future priorities, and how to better provide information on priority areas for public use by Dec. 30, 2009. EPA says it is looking for enforcement problems with a pattern of noncompliance that requires a national effort.
Priorities for 2008 through 2010 are emissions of air toxics and new source review under the Clean Air Act, addressing wet-weather discharges under the Clean Water Act, ensuring that mineral processors comply with the Resource Conservation and Recovery Act, financial responsibility of regulated entities under RCRA and the superfund law, and environmental issues in Indian country.
Cynthia Giles, EPA's new assistant administrator for enforcement and compliance assurance, said EPA will publish a Federal Register notice early in 2010 asking for comment on new priorities being considered and whether the current priorities should be retained. Among the new enforcement areas under consideration are wetlands protection and climate change issues, particularly clean energy. EPA is also considering devoting greater attention to protection of wetlands under the Clean Water Act. Giles had previously said her office would also consider environmental justice factors when setting its priorities. EPA intends to release its full list of potential priority areas under consideration on its website.
Final Rule Facilitates the use of Flexible Air Permits September 25, 2009
Flexible air permits enable major air emissions sources to implement operational plans and make anticipated changes to these plans without further review and approval. These permits do not provide approval for operational changes outside the scope authorized in the initial permit and sources must still meet all Clean Air Act requirements that apply to them. Pilot studies have shown that flexible permitting approaches can minimize the need for permit revisions, provide significant economic benefits, encourage innovation, and increase public awareness -- all while ensuring equal or greater environmental protection.
GHG INVENTORY FEDERAL REPORTING
The September 22, 2009 final greenhouse gas reporting rule imposes monitoring requirements beginning January 1, 2010, and reporting by impacted facilities and other entities by March 31, and annually thereafter. Affected facilities must monitor and report their annual emissions of carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons, perfluorocarbons, and other fluorinated gases (e.g., nitrogen trifluoride and hydrofluorinated ethers ). EPA allows use of best available monitoring methods for the initial quarter of 2010, rather than the required monitoring methods if it is not "reasonably feasible" to acquire, install, and operate a required piece of monitoring equipment by January 1, 2010 until April 1, 2010. Impacted facilities needing a longer period of time to install necessary monitoring equipment can request an extension beyond March 2010, but not beyond 2010.
EPA Key Guidance on Startup/Shutdown/Malfunction Hot Topic
By letter of July 22, 2009 (see attached), Adam Kushner, the Director of the Office of Civil Enforcement at EPA, issued guidance on how EPA intends to interpret the Sierra Club vacatur, clarifying which startups, shutdowns, and malfunctions are exempt from applicable Maximum Achievable Control Technology standards in the wake of Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). The December 2008 SSM court decision created substantial concern among air emission sources subject to the MACT standards and that rely upon the SSM Exemption to ensure continuous compliance. [Meantime, industry has recently filed to have the case heard by the U.S. Supreme Court.]
The July 22, 2009 Kushner letter states EPA’s position that the SSM Exemption will immediately affect only those MACT standards that both (i) incorporate the SSM Exemption by reference and (ii) contain no other text that provides SSM protections. For now, EPA believes that because many MACT standards that contain separate source-specific SSM exemption language were not at issue in Sierra Club, they will not be affected by the vacatur of the general SSM Exemption provision in Subpart A. The July 22, 2009 letter identifies in two tables which MACT standards EPA believes will be immediately affected by the vacatur (See Table 1), and which standards EPA believes will not be affected (See Table 2).
The existing MACT standards were developed with the assumption that the SSM Exemption would address emissions during SSM events. While the EPA states that it intends to further evaluate its July 22, 2009 position and that its initial analysis is therefore subject to change, this is at least some helpful guidance for the regulated community in the interim. [In its December 2008 decision in Sierra Club, the U.S. Court of Appeals vacated the SSM Exemption. The vacatur has not yet taken effect, pending the procedural issuance of a mandate by the Court.] EPA still is evaluating which MACT standards should be revised in light of the December 2008 court case.
As many sources will not be able to comply with MACT standards during SSM events, the July 22, 2009 letter states that EPA intends to determine its enforcement response "based on, among other things, the good faith efforts of the source to minimize emissions during SSM periods, including preventive and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions, and whether the source has developed and implemented an SSM plan to minimize such emissions." In reviewing such defenses, EPA intends to closely scrutinize claims that a standard could not be achieved due to malfunctions, by considering whether events actually meet the definition of malfunction in the MACT rule (i.e., "sudden, infrequent, not reasonably preventable" and not "caused in part by poor maintenance or careless operation").
D.C. Circuit Gives EPA Broad Discretion in Setting PM2.5 NonAttainment Boundaries
On July 7, 2009, the United States Court of Appeals for the D.C. Circuit rendered its decisions (see attached) in the PM2.5 Designations Litigation, Catawba County, NC v. EPA, No. 05-1064 and consolidated cases (D.C. Cir. July 7, 2009). Several states, counties, and industrial entities had challenged the U.S. EPA's promulgation of area designations for the annual national ambient air quality standard (NAAQS) applicable to fine particulate matter (PM2.5), arguing that EPA’s methodology for designating areas as "nonattainment" for the fine particulate matter standard violates section 107(d) of the Clean Air Act, which governs the designations, and that the methodology and the individual designations it produced are arbitrary and capricious. Applying the standard of review set forth in Section 307(d)(9) of the Clean Air Act, which "requires the Court to set aside EPA’s final actions when they are excess of the agency’s statutory authority or otherwise arbitrary and capricious," the Court denied all of the petitions for review except Rockland County, New York and remanded the designation of Rockland County to EPA for a "coherent explanation of its designation". Slip op. at 3, 9, 53-56. According to the Court, faced with the complex task of identifying those geographic areas that contribute to fine particulate matter pollution, EPA both complied with the statute and, for all but one of the 225 counties or partial counties it designated as nonattainment, satisfied—indeed, quite often surpassed—its basic obligation of reasoned decisionmaking.
EPA Acknowledges GHG Vehicle Rules Will Trigger Utility CO2 Limits
On July 8, 2009, at the meeting of G8 world leaders, the United States agreed with some other industrialized countries by agreeing that the globe should not warm up more than 2º Celsius (that is 3.6º Fahrenheit), a benchmark to limit climate change. A limit of 2º Celsius arose out of a scientific consensus. Scientists assembled by the United Nations in 2007 said that the world could face significant dangers if it warmed up more than an additional 2º Celsius.
The Obama EPA is explicitly saying for the first time in August 2009 that a pending greenhouse gas (GHG) vehicle emissions rule, when finalized, will define carbon dioxide (CO2) and other GHGs as regulated under the Clean Air Act and will therefore trigger mandates for new power plants and other stationary sources to limit their GHGs. EPA adoption of GHG motor vehicle emission standards would compel the agency to impose Clean Air Act pre-construction permitting requirements known as Prevention of Significant Deterioration (PSD) on a number of facilities. The CAA Sec. 202 endangerment finding prerequisite to establishing motor vehicle GHG emission standards also would substantively satisfy the Sec. 108 endangerment test that initiates a National Ambient Air Quality Standards (NAAQS) rulemaking.
NSR OFFSETS DECISION (attached)
Background: NRDC and others had sued the U.S. EPA over a rule that allowed new polluting facilities to meet the federal offset requirement "using credits from sources that shut down or curtailed operations as long ago as 1977." The EPA used to say that it was OK so long as the local air quality regulators had an "approved attainment plan" - a plan showing EPA how the particular region intended to bring their area into compliance with federal clean air laws. If there were no approved attainment plan, then offset credits could only be used if "the proposed source is a replacement for the productive capacity represented by the proposed offset." EPA had changed the rule to eliminate the requirement that there be an "approved attainment plan" before old offset credits could be used. The court said that violated the Clean Air Act because, without an approved plan, there was no assurance that emissions reductions would be achieved "by the time the new source begins operation," rather than sometime later. The appeals court ruled, "We hold the Phase 2 Rule is inconsistent with the Clean Air Act (CAA or Act) in allowing participation in a regional cap-and-trade program to satisfy an area-specific statutory mandate."
EPA Might Require More Airborne Lead Sampling
(Threshold lowered to 0.5 TPY?)
EPA announced in July 2009 that it was granting a petition for reconsideration of the final National Ambient Air Quality Standards for lead, specifically the portion requiring monitoring of lead emissions near certain sources. The existing lead monitoring requirements were finalized in October 2008, at the same time that EPA tightened the national air quality standards for lead. The revised standards are 10 times more stringent than the previous standards and require states to place monitors near sources that emit one or more tons of lead a year. They also require a monitor to be operated in each of the 101 urban areas with populations greater than 500,000 to gather information on the general population’s exposure to lead in air.
As part of the reconsideration, EPA will evaluate whether additional monitoring near industrial sources and in urban areas is warranted, and is considering lowering the threshold to require monitors near sources that emit half a ton of lead per year. EPA originally sought to set the threshold at 0.5 tons, but the Bush OIRA office– the arm of the White House Office of Management and Budget responsible for reviewing and editing agency regulations – pressured the agency to double it. EPA estimates the one-ton threshold will apply to 135 facilities. However, the 0.5-ton threshold would have applied to at least 259 facilities. EPA notes in its fact sheet that it is not reconsidering the lead standards, and that implementation of those standards and the existing monitoring requirements will move ahead on schedule. States are required to make recommendations for areas to be designated attainment, nonattainment, or unclassifiable by October 2009.
If EPA decides to revise the lead monitoring requirements later this summer, it would issue a final rule in the spring of next year, following public review and comment.
US EPA to set hourly standard for nitrogen dioxide emissions?
EPA has proposed to strengthen the nation's nitrogen dioxide (NO2) air quality standard that protects public health. The proposed changes reflect the latest science on the health effects of exposure to NO2, which is formed by emissions from cars, trucks, buses, power plants, and industrial facilities and can lead to respiratory disease. An Environmental Protection Agency proposal released Monday set the first-ever hourly national air quality standard (NAAQS) for nitrogen dioxide at between 80 parts per billion and 100 ppb. The standard may require the use of NO2-removal equipment at those coal-fired power plants that do not have such controls in place.In addition, EPA said the proposed standard would require NO2 monitorswithin 50 meters of major highways and roads in cities with at least 350,000 residents. The agency said short-term exposure to NO2 emissions fromautomobiles is "generally highest on and near major roads." EPA estimates the new monitoring requirements would result in the placement of 165 monitoring sites near major roadways. Current scientific evidence links short-term NO2 exposures, ranging from 30 minutes to 24 hours, with increased respiratory effects, especially in people with asthma. These effects can lead to increased visits to emergency departments and hospital admissions for respiratory illnesses, particularly in at-risk populations such as children, the elderly, and asthmatics.
The last time EPA set NAAQS for NO2 was in 1971. Since that time, EPA has reviewed the standards twice, but chosen not to update them. The current proposed rule is in response to a court-ordered settlement which required EPA to propose a standard by June 26 and finalize it by January 22, 2010. The agency is proposing an hourly standard range of 80 ppb-100 ppb, but is seeking comment on levels down to 65 ppb and up to 150 ppb. The agency also is proposing to retain the annual average of 53 ppb.
HOUSE GHG BILL PASSED JUNE, 2009 (attached)
- Federal cap on US emissions of greenhouse gases, starting with a required 17 % reduction from 2005 levels by 2020 and an 80 % reduction by 2050
- A cap and trade system for buying, selling and trading greenhouse gas emissions permits within the limits of the cap, including a market for domestic and international carbon offsets
- A renewable portfolio standard requiring electric utilities to meet 20 percent of their load needs using renewable sources or energy efficiency by 2020, with at least 15% coming from renewable electricity
- More funding for new clean energy technologies
- Allocations of tradable emissions permits to reduce the impact of the program on coal-reliant states, consumers and energy-intensive, certain trade-exposed industries
Senators Sherrod Brown of Ohio; Debbie Stabenow and Carl Levin of Michigan; Robert P. Casey and Arlen Specter of Pennsylvania; Robert C. Byrd and John D. Rockefeller IV of West Virginia; Evan Bayh of Indiana; Russell D. Feingold of Wisconsin and Al Franken of Minnesota sent a letter (attached) to President Obama warning that strong actions to limit emissions of carbon dioxide and other greenhouse gases will add to the cost of goods like steel, cement, paper and aluminum. The senators called for transition assistance for energy-intensive manufacturers.
GEORGIA APPELLATE COURT SAYS CO2 NOT REGULATED YET UNDER CLEAN AIR ACT-July 2009
The Georgia Court of Appeals held in July 2009 that Longleaf Energy Associates did not have to perform a BACT analysis of CO2 emissions control technologies in order to obtain an air quality permit for construction of the coal-fired power plant plant. The court in Longleaf Energy concluded that CO2 is not yet a regulated pollutant under the CAA, and thus that no BACT analysis is required. This paragraph from the decision sets forth some of the Court's reasoning:
"This ruling (lower Court's invalidation of the permit)...would impose a regulatory burden on Georgia never imposed elsewhere. It would compel [the State] to limit CO2 emissions in air quality permits, even though no CAA (Clean Air Act) provision or Georgia statute or regulation actually controls or limits CO2 emissions, and even though (to this Court's knowledge) no federal or state court has ever previously ordered controls or limits on CO2 emissions pursuant to the CAA. It would preempt ongoing Congressional efforts to formulate a CO2 emissions policy for all the State...If accepted it would engulf a wide range of potential CO2 emitters in Georgia-and Georgia alone- in a flood of litigation over permits, and impose far-reaching economic hardship on the State. We reverse this ruling"
NYU Law School Petitions EPA to Start Writing Rules for Greenhouse Gases
The Institute for Policy Integrity of the New York University School of Law filed a 29-page petition (attached) to EPA Administrator Lisa Jackson outlining the reasons why she already has the authority to set up a cap-and-trade system to curb greenhouse gases from motor vehicle fuels, nonroad vehicles and aircraft, seeking more greenhouse gas regulations under the Clean Air Act.
$731K Fine for CAA General Duty Violation (attached)
United States sought civil penalties and injunctive relief against First Chemical Corporation
for alleged violations of the general duty of care under Section 112(r)(1) with respect to a
Chemical manufacturing complex, located in Pascagoula, Mississippi. FCC failed
to identify the hazards associated with distilling mononitrotoluene and failed to maintain a
safe facility by reducing the risks associated with MNT.
This led to a Consent Decree wherein FCC has agreed to pay $731,000 in civil
penalties, and perform injunctive relief in terms of completing a process hazards
analysis relative to the MNT distillation process. August 26, 2009.
EPA WORKING ON GHG THRESHOLD PROPOSAL FOR GHGs IN PSD PERMITS
In EPA's August 12, 2009 response (attached) to a petition by environmental organizations objecting to a Louisville Gas and Electric coal fired plant in Kentucky, EPA Administrator Lisa Jackson made the statement that GHGs in power plant permits could be required as soon as March 2010, when EPA finalizes the agency’s vehicle GHG rule. Ms. Jackson also indicated that until EPA issues the vehicle rule, Clean Air Act Prevention of Significant Deterioration permits do not need to include GHG limits. The EPA August 12, 2009 document has a footnote that states: "Actions are under way at EPA that could, when finalized, result in promulgation of final standards controlling the emissions of greenhouse gases. In particular, EPA has announced its intention to propose a rule regulating greenhouse gas emissions from light-duty vehicles; that rule would control the emissions of greenhouse gases within the meaning of the [December 2008] Johnson memo." Current rumor is the EPA has internally come up now with GHG draft PSD thresholds and may run them by the White House very soon.
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