Energy and Environment Monitor

Solicitor General Weighs in on Climate Change Litigation

The Solicitor General of the United States Neal Kumar Katyal has requested that the U.S. Supreme Court grant certiorari review the Second Circuit Court of Appeals September 21, 2009 decision in Connecticut v. American Electric Power, which cleared the way for the courtroom to be the new climate change battleground.  582 F.3d 309 (2d Cir. 2009).

 

By way of background, the Plaintiffs, who include eight states, New York City, and three land trust groups, sued the Defendants, who include six major electric utilities (American Electric Power Company Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation) under a nuisance claim for the alleged environmental harm and contribution to global warming resulting from their respective greenhouse gas (GHG or GHGs) emissions.  Plaintiffs sought damages to include a cap on Defendants’ carbon dioxide emissions and a 3% annual reduction in carbon dioxide emissions for the next ten years.

 

The Second Circuit reversed the district court’s decision that Plaintiffs’ claims constituted a political question and is therefore barred, and remanded the case back to the district court.  The Second Circuit held, “[f]ederal statutes have not displaced Plaintiffs’ federal common law of nuisance claim. The complaints against Defendant-Appellant TVA may not be dismissed on the grounds of the political question doctrine or the discretionary function exception.”  Id. at 392.

 

This decision, if allowed to stand, would provide plaintiffs with standing to sue under nuisance claims for alleged damages to the environment from GHG emissions.  The Solicitor General of the United States argues that U.S. Supreme Court review is necessary, because the United States Environmental Protection Agency’s (EPA) new greenhouse regulations under the Clean Air Act have eliminated the need for common-law nuisance claims.

 

These new GHG regulations were precipitated by the April 2, 2007, U.S. Supreme Court decision, where the Supreme Court held in Massachusetts v. EPA, 549 U.S. 497 (2007), that GHGs are air pollutants covered by the CAA.  The Supreme Court also held GHG emissions are subject to CAA section 202(a) under which the EPA Administrator must determine whether or not emissions of GHGs from new motor vehicles or motor vehicle engines cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare, or whether the science it too uncertain to make a reasoned decision.  This decision was precipitated by a petition for rulemaking filed by environmental, renewable energy, and other advocacy organizations.

 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.

EPA Sets New Air Pollutant Emission Standards for Portland Cement Industry

On August 9, 2010, EPA issued finalized amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) and to the New Source Performance Standards (NSPS) that specifically target facilities manufacturing Portland Cement. The new rules, weighing in at 461 pages, can be found here: http://www.epa.gov/ttn/oarpg/t1/fr_notices/portland_cement_fr_080910.pdf.

 

Scope of Rules: 

   

EPA’s final changes to NESHAP establish emission limits for mercury (Hg), total hydrocarbons (THC), and particulate matter (PM) for all new and existing kilns at cement facilities. New limits on hydrochloric acid (HCL) apply to both new and existing facilities that are “major sources”, meaning they produce 10 tons of any one toxic pollutant or 25 tons of several toxic pollutants in a given year. NESHAP treats new and existing cement facilities differently, with the standards for new facilities being more stringent. Under NESHAP, any facility that commenced construction, modification, or reconstruction after May 6, 2009 is considered a new facility.

 

    The changes to the NSPS, which apply only to facilities that commenced construction or modification or reconstruction after June 16, 2008, set new emission standards for PM, opacity, nitrogen oxides (NOx) and sulfur dioxides (SOx).

 

    EPA’s new rules will not affect existing facilities for three years (2013), but the standards for new facilities will begin to have legal effect 60 days after the new standards are published.

 

Mercury Standard: 

 

Under the new mercury standard, an existing cement facility must emit no more than 55 lbs of mercury for every one million tons of cement clinker they produce. New cement facilities are limited to 21 lbs of mercury for every one million tons of clinker produced. A 30 day average will be used to measure compliance with these standards.

 

The 55 lb mercury standard is less demanding than the 43 lb standard that EPA originally proposed last year, but is still considered to be a severe regulation by the Portland Cement Association. http://www.cement.org/econ/pdf/Cement%20Consumption%20Outlook-mercuryfinal.pdf.

 

A large portion of a cement plant’s mercury emissions can be traced to the characteristics of the raw materials that are used in the production process, namely the type of limestone used and the type of coal that is burned to heat the kilns. Since most cement facilities are anchored to a local quarry, and in many cases have been in continuous operation for nearly 100 years, the industry tried to persuade EPA to adopt an emission standard that measured not the total mercury released but instead the percentage of mercury that could have been emitted but was captured. EPA refused to subcategorize facilities according to the type of limestone or coal they use, leaving cement plants that use limestone or coal with elevated mercury content especially vulnerable under the new rules. http://www.forbes.com/feeds/ap/2010/08/09/general-industrials-or-cement-plant-mercury_7837141.html?boxes=techchannelAP

 

Method Used to Calculate New Standards: 

 

    EPA’s new emission rules are known as maximum achievable control technology (MACT) standards. To set MACT standards, EPA looks for the most effective pollution control technology that is currently available on the market while taking into consideration the purchase price, energy requirements, and environmental impacts that are associated with the technology. The Clean Air Act requires EPA to set MACT standards no less stringent than the average emissions being achieved by the best performing 12 percent of cement plants for each category of pollutant. In the event there are fewer than 30 plants emitting a certain pollutant, the MACT standard is based on the top 5 best performing facilities. 

   

Costs to the Cement Industry: 

 

    While EPA predicts that the new emission standards will bring about significant health improvements to society, as with any new regulations these improvements come with a significant price tag for the cement industry. In total, cement factories will have to pay a total of $2.2 Billion to upgrade equipment with annualized costs of $377 million.

  

EPA admits that these new rules will likely lead two cement facilities to permanently shut down because they will be unable to reduce their current mercury emissions by 98% to meet the new standards. Additionally, EPA predicts that 10 additional cement factories around the country will shut down or sit idle until the price of cement improves. Overall, domestic production of cement is expected to fall by 11%, the price of Portland Cement to consumers will likely rise by 5.4%, and the portion of cement coming from imported sources will rise significantly.

 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC.  Aaron can be reached by phone at (304) 340-1048 or by email at asheishman@jacksonkelly.com. 

Congressmen Submit Questions to EPA on E15

The United States Environmental Protection Agency recently announced that its decision whether to approve a waiver to allow E15 (a 15% ethanol fuel blend) in all vehicles would likely be made this fall. Previously, EPA had previously indicated that a decision would be made this summer. In early July, Gina McCarthy, Assistant Administrator for Air and Radiation told a renewable energy conference audience that EPA was "very confident" that E15 was suitable for newer vehicles, but was less certain concerning older ones. Department of Energy testing on model year 2007 (and newer) cars is scheduled to be complete by mid-September. Tests on 2001 and newer vehicles are supposed to be complete by November 30¹.

 

However, on July 20, 2010, Henry Waxman, Chairman of the House Committee on Energy and Commerce, Edward Markey, Chairman of the Subcommittee on Energy and Environment, and Republicans Joe Barton, Ranking Member of the Committee, and Fred Upton, Ranking Member of the Subcommittee, wrote to Jackson urging caution with the waiver decision. The Congressmen requested information concerning what plans EPA has developed to ensure that increasing the permissible level of ethanol in gasoline is accomplished in a way that does not present any potential harm to air quality, consumers' investments in cars, trucks and other engines and equipment, or small business owners' investments in retail gasoline outlets.

 

The letter indicated there was some preliminary information which indicated that E15 may cause durability or operability problems or increased air pollution. As to these issues the letter concluded that EPA should not approve E15 until the agency had sufficient test results to allow it to assure consumers that the use of E15 would not harm vehicles or engines. The letter also appeared to question whether EPA had the authority to grant a partial waiver for certain vehicles and engines and not others.

 

The Congressmen attached a list of 16 questions to EPA. The first series of questions asked EPA to address whether it could currently assure consumers that E15 would not adversely affect vehicles' operability, durability, safety and pollution control equipment for different classes and models of vehicles. EPA was asked to provide: any support for EPA's response including studies or other information; information on the effect of the use of E15 on newer or older vehicles; a description of testing being conducted by the Department of Energy; and the percentage of the vehicle fleet which is comprised of that particular class of vehicle. The letter also asked EPA whether it has the authority to grant a partial, as opposed to a universal, waiver for E15 and the basis for that authority. 

 

The Congressman asked whether any warranties for existing cars, trucks and non-road engines would be voided by the use of E15; what changes in gas mileage a consumer could expect when using E15; and whether EPA was developing a plan to avoid or minimize misfueling of E15. The letter also questioned how many tanks and pumps at retail outlets were certified for use of E15 and what consequences there were for retail outlet owners using E15 in a tank or pump that is not certified. Finally, the Congressman asked whether EPA conducted any modeling to determine whether an approval of E15 would affect states' abilities to obtain and maintain national ambient air quality standards.

 

This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.

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¹ EPA's delay and indication that any waiver may only apply to newer cars has caused ethanol industry groups to push for an immediate interim step of approving E12 for all vehicles. In a letter to EPA Administrator Lisa Jackson, the American Coalition for Ethanol, the National Corn Growers Association and the Renewable Fuels Association urged EPA to approve E12 for use in all vehicles claiming that EPA has already approved fuels with equivalent oxygen content.

ASTM Approves New Standard to Determine Plume Opacity: Future Potential Alternative to EPA Method 9

ASTM International, headquartered in West Conshohocken, PA, on June 22, 2010, announced a new approved test method for determining the opacity of a plume in an outdoor ambient atmosphere. ASTM D7520 was developed by Subcommittee D22.03 on Ambient Atmospheres and Source Emissions, part of ASTM International Committee D22 on Air Quality.

 

Currently, regulators, industry and government facilities use human observers to quantify the opacity of plumes, using EPA Method 9. The new method uses digital cameras and software to determine plume opacity while providing a digital image of the plume and its surrounding environment.

 

Air permits from regulatory agencies such as the EPA often require the measurement of a plume's opacity as the plume is emitted from a stationary point source (for example, smokestacks) in an outdoor ambient environment. While such opacity is often visually measured by human observers as "certified smoke readers," an approved opacity measurement method has long been sought by regulators and industry to take human subjectivity out of the equation.

 

Note that the cost of required six-month Method 9 retraining could potentially be avoided by use of this new ASTM opacity determination method, if ASTM D7520 is accepted by the environmental regulators as a replacement for Method 9. The recurring cost of the so-called “Smoke School” training is a significant operating expense for many regulated facilities. However, there is likely to be some type of requirement for ASTM D7520 training, although that is unknown at the present time.

 

"This is a great story about how innovative technologies and techniques are developed with Department of Defense-supported research and they result in the development of new methods like ASTM D7520," said Mark J. Rood, Ph.D., a professor of Environmental Engineering, University of Illinois, and a D22 member. "The development of this new method to determine plume opacity with low-cost digital still cameras was initially described in peer-reviewed journals and conference proceedings and is now an approved ASTM standard to assist USEPA in improving air quality at lower cost and with less subjectivity."

 

Scope of ASTM D7520-09   

 

ASTM provides the following scope of use for ASTM D7520-09:

 

1.1  This test method describes the procedures to determine the opacity of a plume. The aforementioned plume is caused by particulate matter emitted from a stationary point source in the outdoor ambient environment using digital imagery and associated software and hardware.

 

1.2  The opacity of emissions is determined by the application of a Digital Camera Opacity Technique (DCOT) that consists of a Digital Still Camera, Analysis Software, and the Output Function’s content to obtain and interpret digital images to determine and report plume opacity.

 

1.3  This method is suitable to determine the opacity of plumes from zero (0) percent to one hundred (100) percent.

 

1.4  This test method is not applicable to stacks with internal diameters greater than 7.0 ft.

 

1.5 Conditions that shall be considered when using this method to obtain the digital image of the plume include the plume’s background, the existence of condensed water in the plume, orientation of the Digital Still Camera to the plume and the sun (see Section 8).

 

1.6 This standard describes the procedures to certify the DCOT, hardware, software, and method to determine the opacity of the plumes.

 

Recommendations

 

The author recommends that affected sources closely watch for EPA, state and local environmental agencies potential future adoption and use of ASTM D7520-09, which could provide a preferable alternative to using EPA Method 9 for opacity compliance determinations.

 

For further details on ASTM’s new opacity determination standard, see the following web sites:

 

ASTM D7520 - 09 Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere

http://www.astm.org/Standards/D7520.htm

 

http://news.thomasnet.com/companystory/ASTM-Air-Quality-Committee-approves-standard-on-plume-opacity-579288

 

This article was partially excerpted from publically available information, and was compiled by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers. For more information on the author see here.

U.S. EPA Strengthens Sulfur Dioxide Air Quality Standard

On June 2, 2010, the U.S. Environmental Protection Agency (U.S. EPA) strengthened the sulfur dioxide (SO₂) national ambient air quality standard (NAAQS) by establishing a new 1-hour standard at a level of 75 parts per billion (ppb). This new NAAQS will be met when the 99^th percentile daily maximum 1-hour SO₂ concentration, averaged over three years does not exceed 75 ppb. It applies only to the “primary” standard that is set to protect public health. To determine compliance, U.S. EPA intends to use monitoring and refined dispersion modeling of SO₂ sources. U.S. EPA is also revoking both the existing daily and annual primary SO₂ standards but is not revising the “secondary” standard at this time. U.S. EPA is obligated under a consent decree to complete its review of the secondary SO₂ NAAQS, which is set to protect the environment and public welfare, in 2012. U.S. EPA’s timeline and plans for designations and implementation of the revised SO₂ primary NAAQS are set forth in the final rule. In addition, U.S. EPA is establishing requirements for an SO₂ monitoring network. Because U.S. EPA is taking a hybrid approach that combines monitoring and modeling, the number of new monitoring sites that will need to be established is drastically less than the number originally proposed. For the pre-publication version of the new SO₂ NAAQS, click here.

 

U.S. EPA intends to complete designations in June 2012. Initial designations will be based on 2008-2010 air quality monitoring data, or refined dispersion modeling results if provided by the state. Areas that do not meet the standard will be designated “nonattainment”. Areas that have both monitoring data and appropriate refined modeling results showing no violations will be designated “attainment”.   All other areas will be designated “unclassifiable”. 

 

This approach to SO₂ designations is consistent with U.S. EPA’s historical approach to SO₂ designations but is different from the approach U.S. EPA initially proposed. It is also different from how U.S. EPA has determined whether an area is violating other NAAQS pollutants. For NAAQS pollutants other than SO₂, such as ozone and fine particulate matter, U.S. EPA considers air quality monitoring more appropriate than refined modeling for determining whether all areas are attaining the NAAQS.

 

Based upon 2007-2009 air quality monitoring data, the following counties in West Virginia have monitors currently violating the revised SO₂ standard of 75 ppb: Brooke, Hancock, Kanawha, Marshall, Monongalia, and Wood. For a map and a table of the counties with monitors currently violating the revised SO₂ NAAQS, click here and here. It should be noted that pursuant to the provisions of the Clean Air Act, the boundaries of the SO₂ nonattainment areas will likely include more counties than just the counties with the violating monitors.

 

States with areas designated nonattainment in 2012 are required to submit to U.S. EPA by early 2014 state implementation plans (SIPs) setting forth air pollution control requirements and other actions that will be taken to meet the new 1-hour SO₂ standard. The Clean Air Act requires nonattainment areas to meet the standards “as soon as practicable,” but no later than August 2017.

 

For all other areas, states are required to submit to U.S. EPA by June 2013 infrastructure SIPs. These SIPs demonstrate that the state has the “infrastructure” in place to implement a new or revised NAAQS and include provisions such as an ambient air quality monitoring/data system; program for enforcement of control measures; adequate resources; stationary source monitoring system; emergency power; future SIP revisions; consultation with government officials; public notification; PSD and visibility protection; air quality modeling/data; permitting fees; and consultation/participation by affected local entities. 

 

Further, U.S. EPA expects the states’ infrastructure SIPs to: (1) “demonstrate, through refined air quality modeling, that all sources contributing to monitored and modeled violations of the new standard, or that have the potential to cause or contribute to a violation, will be sufficiently controlled” to achieve and maintain new SO₂ standard as expeditiously as possible, but no later than August 2017; (2) “account for SO₂ reductions that would result from compliance with national and regional regulations, including emissions controls for electric utilities and industrial boilers”; and (3) “include enforceable emissions limitations, timetables for compliance, and appropriate testing/reporting to assure compliance.” 

 

U.S. EPA is also revising the SO₂ monitoring network and setting specific minimum requirements on where states must place SO₂ monitors. Specifically, U.S. EPA is requiring monitors to be placed in Core Based Statistical Areas (CBSAs) based on a population weighted emissions index for the area. In the proposal, U.S. EPA proposed a monitoring-focused approach to SO₂ designations which would have required approximately 348 monitors nationwide to be sited at the locations of maximum concentration. Because U.S. EPA decided to use a hybrid approach combining the use of monitoring and modeling to assess compliance, U.S. EPA estimates that only 41 new monitoring sites will need to be established nationwide. All newly sited monitors must be operational by January 1, 2013, which is after the date for designations.

 

The following CBSAs in West Virginia require one monitor: Charleston, WV; Morgantown, WV; Parkersburg-Marietta-Vienna, WV-OH; and Point Pleasant, WV-OH. The Washington-Arlington-Alexandria, DC-VA-MD-WV CBSA requires three monitors. For a map and a table of the monitoring requirements for the revised primary SO₂ standard nationwide, click here and here.

 

U.S. EPA plans “to use modeling as the principal means of assessing compliance for medium to larger sources, and to rely more on monitoring for groups of smaller sources and sources not as conducive to modeling.” U.S. EPA promises to issue guidance on conducting refined air quality dispersion modeling and address, among other issues, “how to translate modeling results into a form appropriate for comparison to the new standard, and how to identify and appropriately assess the air quality impacts of SO₂ sources that may potentially cause or contribute to a violation of the new standard.”

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

New Monitoring and Reporting of Greenhouse Gases Associated with CO2 Injection and Geologic Sequestration

April 12, 2010 EPA proposed monitoring and reporting of GHGs associated with CO2 injection and Geologic Sequestration. The comment period closes June 11, 2010.  (40 CFR 98 Subpart RR; 75 FR 18575-18606)

 

EPA first proposed that suppliers of CO2 be subject to mandatory GHG reporting requirements in April, 2009 and finalized the rule for suppliers of CO2 to the economy on October 30, 2009 in Subpart PP. Subpart PP applies to all facilities with CO2 production wells, facilities with production process units that capture and supply CO2 for commercial applications or that capture and maintain custody of a CO2 stream to sequester or otherwise inject it underground, and to importers and exporters of bulk CO2. During the public comment period on Subpart PP, EPA received many comments that CO2 injected underground should be considered when estimating emissions from the CO2 supply industry. Some of the CO2 supplied for the purposes of enhanced oil and gas recovery is additionally sequestered rather than emitted and commenters noted that enhanced oil and gas recovery operations should be considered “closed systems” rather than emitting systems. Other commenters stated that including reporting requirements for geologically sequestered CO2 would fill a critical gap in the reporting system. In agreement with these comments, EPA’s April 12th, proposal is intended to assist EPA in quantifying the amount of CO2 that is permanently and securely geologically sequestered. Therefore EPA is proposing to amend the Mandatory Reporting of Greenhouse Gases Program at 40 CFR Part 98 adding Subpart RR for reporting requirements covering facilities that conduct injection and “Geologic Sequestration” of CO2.

   

EPA is proposing a tiered approach: The first tier of proposed regulations would establish a set of reporting requirements that would cover all facilities that inject CO2 underground. All facilities would be required to report CO2 transferred onsite from offsite sources, the source of the CO2 (if known), and CO2 injected underground.  The second tier of reporting requirements would apply to Geologic Sequestration facilities. Geologic Sequestration facilities would be required to calculate CO2 sequestered by subtracting total CO2 emissions from the CO2 injected in the reporting year. The emitted quantity would include the injected CO2 that leaked from the subsurface to the surface (if any), CO2 produced with oil or natural gas where enhanced oil and gas recovery operations are conducted at the Geologic Sequestration facility, fugitive or vented CO2 emissions from surface equipment, and emissions from combustion sources located within the facility boundary, such as compressors.

 

Monitoring, reporting and verification (MRV) of potential CO2 leakage is also required. EPA recognized that the risk of leakage at a well-selected and well-managed Geologic Sequestration site is expected to be low, but considered it important for all facilities conducting Geologic Sequestration to demonstrate that they have met MRV standards.

 

EPA considered overlap between the proposed GHG reporting program and other programs, specifically the July 2008, amendment to the Underground Injection Control (UIC) program to establish a new class of injection well for Geologic Sequestration projects (73 FR 43492 (July 25, 2008)). The proposed rule requires CO2 injection facilities to report to EPA as Geologic Sequestration facilities under the CAA, regardless of their UIC permit classification. Under this proposal, any facility sequestering CO2 underground can choose to qualify and report as a Geologic Sequestration facility.

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

U.S. EPA Takes Final Action on Reconsideration of The PSD Interpretive Memo

U.S. Environmental Protection Agency (U.S. EPA) has completed its reconsideration of a December 18, 2008 memorandum by then-U.S. EPA Administrator Stephen L. Johnson that established the Agency’s interpretation of when a pollutant is covered by the federal Prevention of Significant Deterioration (PSD) Permit Program under the Clean Air Act (CAA or Act). The PSD Permitting Program is the preconstruction review process for major stationary sources such as power plants, factories, and other large industrial facilities to ensure that modifications to existing facilities and construction of new facilities will not degrade air quality and to ensure that state-of the-art control technology known as best available control technology or BACT is installed at new facilities or at existing facilities that are undergoing a major modification.

 

With the exception of one limited refinement, U.S. EPA will continue applying its existing test requiring the “actual control” of emissions of a pollutant to determine the scope of pollutants subject to the federal PSD Program. In addition, U.S. EPA has refined its interpretation to establish that PSD permitting requirements apply to a newly regulated pollutant at the time a regulatory requirement to control emissions of that pollutant “takes effect” rather than upon the date the regulation containing such a requirement is signed by the U.S. EPA Administrator, the date the rule is published in the Federal Register, or the legally effective date for the rule after publication in the Federal Register. Thus, the PSD requirements will not apply to a newly regulated pollutant, such as carbon dioxide (CO2) and other greenhouse gases (GHGs) until a regulatory requirement to control emissions of that pollutant “takes effect.” States and regulated entities generally supported U.S. EPA’s actual control interpretation. U.S. EPA published its decision on April 2, 2010, in a final action titled “Reconsideration of its Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs” (75 Fed. Reg. 17,004). For the text of the April 2, 2010 final action, click here.

 

The December 18, 2008 memorandum, commonly referred to as the PSD Interpretive Memo or Johnson Memo, addresses issues that arose following the U.S. Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), holding that CO₂ and other GHGs constitute “air pollutants” within the meaning of the CAA and the Environmental Appeals Board’s decision in Deseret Power Electric Cooperative, PSD Appeal No. 07-03 (EAB Nov. 13, 2008), remanding a PSD permit that did not include BACT limits for CO₂. The Board remanded the permit to the U.S. EPA Region to “reconsider whether or not to impose a CO2 BACT limit in light of the ‘subject to regulation’ definition under the CAA.”

 

In affirming its actual control interpretation, U.S. EPA rejected four alternative interpretations of the term “subject to regulation” found in CAA §§165(a)(4) and 169(3), which include the BACT provisions of the Act, and in the definition of “regulated NSR pollutant” found in 40 CFR §52.21(b)(50)(iv), which includes “any pollutant that is otherwise subject to regulation under the Act.” The interpretations that U.S. EPA rejected were generally supported by environmental and public interest groups and included: (1) monitoring and reporting requirements; (2) the inclusion of regulatory requirements for a pollutant in a U.S. EPA-approved state implementation plan (SIP); (3) a U.S. EPA finding of endangerment; and (4) a U.S. EPA grant of a section 209 waiver. Id. at 17007-7014. 

 

In the PSD Interpretive Memo, U.S. EPA stated that the fourth part of the definition of “regulated NSR pollutant” should “apply to a pollutant upon promulgation of a regulation that requires actual control of the emissions.” See Memo at 14. For the text of the PSD Interpretive Memo, click here. In the October 7, 2009 notice, U.S. EPA proposed to modify its interpretation of the fourth part with respect to the timing of PSD applicability. Specifically, U.S. EPA proposed to interpret the term “subject to regulation” in the statute and regulation to mean that PSD requirements apply “when the regulations addressing a particular pollutant become final and effective.” Id. at 17015/3. States and regulated entities generally supported U.S. EPA’s proposal. Many entities urged U.S. EPA to use the compliance date of a rule as its “effective” date. Id. at 17006/2.

 

In the final action, U.S. EPA interprets the time that a pollutant becomes subject to regulation under the Act to be “the point in time when a control or restriction that functions to limit pollutant emissions takes effect or becomes operative to control or restrict the regulated activity.”  Id. at 17016/2. In deciding to construe the point at which a pollutant becomes “subject to regulation” to be when a control or restriction is operative on the activity regulated, U.S. EPA rejected an interpretation that a pollutant does not become subject to regulation “until the time that an individual source engages in the regulated activity.” Nor did U.S. EPA agree that a pollutant does not become subject to regulation “until the date when a source must certify compliance with regulatory requirements or submit a compliance report.” Id. at 17016/3.

 

U.S. EPA also discusses the application of the PSD Interpretive Memo to PSD permitting for GHGs and states that GHGs will initially become “subject to regulation” under the Act on January 2, 2011, and that the PSD permitting program would apply to GHGs on that date. Because U.S. EPA has not yet finalized the PSD Tailoring and Title V Rule for phasing in PSD requirements for GHG sources, U.S. EPA concludes only that “GHGs would not be considered ‘subject to regulation’ (no source would be subject to PSD permitting requirements for GHGs) earlier than January 2, 2011.” Id. at 17007/1 & 17019/1. U.S. EPA acknowledges the implementation challenges but concludes that it lacks authority to establish a specific date when the PSD permitting requirements initially apply to GHGs based solely on practical implementation considerations. Id. at 17020/2-3. The Tailoring Rule will address GHG-specific circumstances that will exist beyond January 2, 2011. Id. at 17020/3. 

 

In the April 2 final action, U.S. EPA explains that the PSD program requires consideration of energy efficiency when selecting BACT and that the BACT provisions of the PSD program need to be used “to promote technology choices for control of criteria pollutants that will also facilitate the reduction of GHG emissions.” Id. at 17020/3. According to U.S. EPA, “BACT for other pollutants can, through application of more efficient production processes, indirectly result in lower GHG emissions.” Id. at 17021/1. U.S. EPA recognizes that “the BACT process may be more time and resource intensive when applied to a new pollutant,” such as CO₂, and promises to issue guidance in the near future on indirect GHG benefits and BACT for GHGs. Id. at 17008 -7009 & 17020-21.

 

For PSD permit applications that are pending on the date GHGs initially become “subject to regulation,” that is January 2, 2011, U.S. EPA declines to establish a transition or grandfathering provision. Id. at 17021. This is true even if permit applications were filed and determined to be complete before January 2, 2011. Id. at 17021-22.

 

    Because U.S. EPA received several comments addressing the application of Title V permitting requirements to GHGs, U.S. EPA also addressed the application of the Title V program to sources of GHGs in the April 2, final action. Currently GHGs are not considered to be subject to regulation and have not been considered to trigger applicability under Title V. U.S. EPA adopts the same approach for Title V as for PSD. Thus, a source that is not currently subject to Title V for its GHG emissions could become so no earlier than January 2, 2011. 

 

Because this action is nationally applicable, any legal challenges must be brought in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review are due June 1, 2010. Id. at 17023.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

USEPA Expected to Propose CCS Rule

    On March 8, 2010, the Office of Management and Budget finished its regulatory review of the U.S. Environmental Protection Agency’s (“USEPA”) proposed rulemaking for carbon dioxide injection and geologic sequestration reporting.  Thus USEPA is soon expected to publish notice of the proposed rulemaking in the Federal Register.

 

    According to www.regulations.gov, “the Agency is initiating this separate rulemaking to specifically address geologic sequestration (GS). The rule would outline new requirements for GHG reporting for CO2 injection, including GS sites. In addition to tracking CO2 emissions across CO2 capture and injection, this rule would allow EPA to collect data on efficacy of GS sites for long-term storage of CO2.”

 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.

US EPA Administrator Lisa Jackson Sends Letter to West Virginia’s Senator Rockefeller

    On February 22, 2010, U.S. EPA Administrator Lisa P. Jackson sent a letter to West Virginia’s Senator Jay D. Rockefeller IV responding to his concern about the U.S. EPA’s efforts to comply with the Supreme Court’s decision in Massachusetts v. EPA through the regulation of greenhouse gases. Through this letter Jackson identified the following points about the modifications she plans to make on U.S. EPA’s greenhouse gas proposals: 

·    The United States Supreme Court held three years ago in Massachusetts v. EPA that greenhouse gases are air pollution and are subject to regulation under the Clean Air Act. EPA must follow the Supreme Court's holding, as you recognize in your letter.

 

·     By April of this year, I expect to take actions to ensure that no stationary source will be required to get a Clean Air Act permit to cover its greenhouse gas emissions in calendar year 2010.

 

 

·    Based on those anticipated actions, I expect that EPA will phase-in permit requirements and regulation of greenhouse gases for large stationary sources beginning in calendar year 2011. In the first half of 2011, only those facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications.

 

 

·     Further, I am expecting that greenhouse gas emissions from other large sources will phase in starting in the latter half of 2011. Between the latter half of 2011 and 2013, I expect that the threshold for permitting will be substantially higher than the 25,000-ton limit that EPA originally proposed. In any event, EPA does not intend to subject the smallest sources to Clean Air Act permitting for greenhouse-gas emissions any sooner than 2016.

 

• You asked in your letter what the result would be if Senator Lisa Murkowski's resolution of disapproval of EPA's endangerment finding were enacted. One result would be to prevent EPA from issuing its greenhouse gas standard for light-duty vehicles, because the endangerment finding is a legal prerequisite of that standard. The impacts of that result would be significant. In particular, it would undo an historic agreement among states, automakers, the federal government, and other stakeholders. California and at least thirteen other states that have adopted California's emissions standards likely would enforce those standards within their, jurisdictions¹, leaving the automobile industry without the explicit nationwide uniformity that it has described as important to its business². 

Letter from Administrator Jackson to Senator Rockefeller IV of 2/22/2010, at 1-2. 

    It remains to be seen whether this response ends the dialogue or provokes more questions from the several senators who endorsed the letter. 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.

EPA Proposes to Repeal PM10 Grandfathering Provision and End the PM10 Surrogate Policy

    On February 11, 2010, EPA proposed (75 Fed Reg 6827-6836) two actions that would end it’s 1997 policy that allows sources and permitting authorities to use a demonstration of compliance with the prevention of significant deterioration (PSD) requirements for particulate matter less than 10 micrometers (PM10) as a surrogate for meeting the PSD requirements for particulate matter less than 2.5 micrometers (PM2.5). First, EPA is proposing to repeal the “grandfathering'' provision for PM2.5 contained in the Federal PSD program. Second, EPA is proposing to end early the PM10 Surrogate Policy applicable in States that have an approved PSD program in their State Implementation Plan (SIP-approved States).  

Entities affected by this proposed action include those proposed new and modified major stationary sources subject to the Federal PSD program that submitted a complete application for a PSD permit before the July 15, 2008 effective date of the PM2.5 New Source Review (NSR) Implementation Rule, but have not yet received a final and effective permit authorizing the source to commence construction, and those proposed new and modified major stationary sources that are subject to a PSD program in SIP-approved States and have not yet received a final and effective permit authorizing the source to commence construction. 

EPA estimates that about twenty-one proposed new sources or modifications would be affected by the proposed repeal of the grandfathering provision. EPA is not proposing that the repeal would apply retroactively to any permits. 

The entities potentially affected by a proposal to end early the use of the PM10 Surrogate Policy in SIP-approved States include proposed new and modified major stationary sources in all industry groups. The majority of sources potentially affected are expected to be in the groups Electric services, Petroleum refining, Industrial inorganic chemicals, Industrial organic chemicals, Miscellaneous chemical products, Natural gas liquids, Natural gas transport, Pulp and paper mills, Paper mills, Automobile manufacturing, and Pharmaceuticals. 

EPA notes that it knows of twenty-seven sources that had submitted PSD permit applications under the Federal PSD program prior to July 15, 2008--the effective date of the PM2.5 NSR Implementation Rule--but did not receive their permits by that date. These applications were eligible to be grandfathered to use the PM10 Surrogate Policy to satisfy the PM2.5 requirements. For at least six of these applications, the permit was either issued or denied, or the project was cancelled, prior to June 1, 2009, when the administrative stay became effective. For most of the remaining twenty-one applications, the sources have already directly addressed, or are planning to directly address, the applicable PM2.5 requirements in order to obtain a permit. At least two of the sources are reportedly planning to take enforceable emissions limitations on their PM2.5 emissions in order to avoid the PSD requirements for PM2.5 altogether. 

EPA said further that ending the use of the PM10 Surrogate Policy will provide desired certainty to the PM2.5 permitting process by ensuring that all permit applicants show that their source does not cause or contribute to a violation of the PM2.5 NAAQS and otherwise meets all of the requirements for PM2.5, and not use PM10 surrogacy as means of avoiding a real analysis demonstrating that the PM2.5 requirements are met. EPA states that it believes that the certainty outweighs “any burdens caused by any delay to the permit applicants that would be affected.” However, EPA solicits comments about any burdens that affected sources believe may be incurred. 

Finally, EPA notes that a repeal of the grandfathering provision in a subsequent final rule would not impact any PSD permits that became final and effective in reliance on the PM10 Surrogate Policy under the policy itself or the grandfathering provision that incorporated that policy by reference before the stay of that provision. 

 

Comments on the February 11 proposals must be received on or before March 15, 2010. If requests a public hearing, it will be held on February 26, 2010. If a hearing is held, the record for the hearing will remain open until March 29, 2010.  

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.