Energy and Environment Monitor

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.

Proposed Lead Monitoring Changes

On December 23, 2009 the US EPA proposed to revise the ambient monitoring requirements for measuring airborne lead. These rule amendments would improve the lead monitoring network to better assess compliance with the revised National Ambient Air Quality Standards (NAAQS) established in November 2008.  

History:  

The lead monitoring network measures concentrations of lead in the outdoor air, to assess compliance with the lead national ambient air quality standards (NAAQS). EPA substantially strengthened those standards in a rule issued October 15, 2008, revising the level of the primary (health-based) standard from 1.5 micrograms per cubic meter (ug/m3) to 0.15 micrograms per cubic meter (ug/m3), measured as total suspended particles (TSP). The agency revised the secondary (welfare-based) standard to be identical to the primary standard. 

In January 2009, EPA received a petition to reconsider the lead monitoring requirements from Missouri Coalition for the Environment Foundation, Natural Resources Defense Council, Coalition to End Childhood Lead Poisoning and Physicians for Social Responsibility.   EPA granted the petition to reconsider on July 22, 2009. This proposal represents the results of the EPA’s reconsideration of the lead monitoring requirements. The reconsideration will not change the timeline for meeting the revised lead standards or the deadline for deploying monitors around sources that emit at least 1.0 tons per year of lead.  

Current Proposal: 

The EPA is proposing revisions to the requirements for both source-oriented and non-source-oriented monitoring for lead.  

Source Based Monitoring: 

The current source based monitoring emission threshold is 1.0 tpy. EPA is proposing to change the lead emissions monitoring threshold to 0.50 tpy. Air quality monitoring agencies would use this threshold to determine if an air quality monitor is required to be place near a facility emitting lead.   The EPA projected the source-oriented portion of the network to be up to 135 monitors based on these requirements and the 2002 NEI (National Emission Inventory).

EPA proposes that these source-oriented monitors would begin operating one year after this rule is finalized. Monitors around the largest sources (those that emit 1.0 tpy or greater) are already required to be operational no later than January 1, 2010.  

Lead is emitted at airports as a result of leaded aviation fuel. As a result, EPA is proposing to treat airports identically to other sources of lead when determining if source-oriented lead monitoring is needed. The EPA identified 55 airports that may exceed the proposed 0.50 tpy emission threshold.  

Non-Source-Oriented Monitoring:  

The EPA is proposing to replace the current non-source-oriented monitoring approach with the requirement for lead monitoring at the national multi-pollutant monitoring network known as NCore. 

The NCore network is intended to be a long-term, multi-pollutant monitoring network that provides data useful for NAAQS attainment decisions, understanding of air quality conditions and pollutant interactions, evaluating air quality models, developing emission control strategies, and supporting long-term health studies. The NCore network will become fully operational no later than January 1, 2011 and will consist of approximately 80 sites – 60 sites located in urban areas and about 20 sites in rural areas.  

The purpose of these monitors is to measure neighborhood scale lead concentrations in urban areas impacted by re-suspended dust from roadways, closed industrial sources which previously were significant sources of lead, hazardous waste sites, construction and demolition projects, or other fugitive dust sources of lead.  

EPA had proposed and taken comment on a smaller non-source-oriented lead monitoring network that included 1 monitor in each CBSA with a population of 1,000,000 or more people, located to measure typical neighborhood scale lead concentrations in urban areas. The EPA noted that data from these non-source oriented monitors would be helpful in better characterizing population exposure to ambient air related lead and may assist in determining non attainment boundaries.  

During the comment period, concerns were raised that non-inventoried lead sources in urban areas, such as closed industrial sources, hazardous waste sites, and construction and demolition projects could potentially result in ambient lead concentrations in excess of the lead NAAQS. To address these concerns, the EPA modified the siting criteria to require non-source-oriented monitors to be sited to evaluate these non-inventoried lead sources.   The EPA also lowered the population threshold from requiring monitoring at CBSAs with a population of 1,000,000 people or more to requiring monitoring at CBSAs with a population of 500,000 people or more.  

Map of Proposed Monitoring Locations 

A map of the proposed monitoring location is provided at the link below. Currently there are no proposed monitoring locations in West Virginia. http://www.epa.gov/air/lead/pdfs/leademissionsmap.pdf 

Comment Period:  

EPA will accept comment on the proposal until February 16, 2010. On-line instruction for submitting comments are available at www.regulations.gov.  Use the following to identify the comments: Docket ID No. EPA-HQ-OAR-2006-0735. 

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

States Pushing Back on U.S. EPA’s Initiative to Regulate Greenhouse Gases for Economic Reasons

States’ comments on U.S. EPA’s proposed rule “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” give one reason to believe that states are beginning to push back on U.S. EPA’s initiatives to regulate greenhouse gases based on administrative and economic concerns. While states continue to support U.S. EPA’s efforts, many states are asking for: 

• additional legislation to regulate greenhouse gases,
• more time for state to increase their statutory and regulatory thresholds, and
• U.S. EPA to help provide states with the funding needed to implement the program. 

The National Association of Clean Air Agencies (NACAA) represents air pollution control agencies in 53 states and territories and over 165 major metropolitan areas across the United States. NACAA shares the states concerns over the need for additional greenhouse gas regulation, in addition to the high administrative burden of the proposed rule, insufficient time to revise state regulations, and U.S. EPA’s failure to ensure that “sufficient administrative resources are available at the time of the anticipated increase in workload.” Similarly, NESCAUM (representing the states of Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont) objects to the proposed rule because, it does not provide sufficient time and asks U.S. EPA to develop mechanisms that will create revenue streams to support permitting agencies. 

The state of West Virginia provided U.S. EPA with some particularly pointed comments including: “EPA has embarked on an unprecedented, and risky, attempt to regulate greenhouse gases under the federal Clean Air Act. The CAA was never designed nor intended to address this kind of air pollutant…one with no direct health impacts, that is emitted in quantities which are orders of magnitude greater than conventional pollutants.” It appears that many states, and West Virginia, in particular seek a fiscally responsible regulatory program for greenhouse gas and are concerned that U.S. EPA’s proposed rule “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” is not the answer. 

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

U.S. EPA Extends Deadline for 2008 Ozone Designations

On January 6, 2010, U.S. EPA extended the deadline for designating areas for the March 2008 ozone national ambient air quality standards (NAAQS) by one year from March 12, 2010, to March 12, 2011. Designations refer to the process under the Clean Air Act for identifying those areas of the country that meet, exceed, or have insufficient data to permit classification as meeting or exceeding the standards. Areas are designated as attainment, nonattainment, or unclassifiable. Nonattainment areas include areas that contribute to ambient air quality in a nearby area that does not meet the standard as well as areas that do not meet the standard. 

The new deadline of March 12, 2011, will be after U.S. EPA is expected to complete its reconsideration of the 2008 ozone NAAQS in August 2010. The Clean Air Act authorizes U.S. EPA to extend by one year the deadline for promulgating initial area designations for any new or revised NAAQS if the U.S. EPA Administrator has “insufficient information” to promulgate designations. U.S. EPA is using this authority to extend the designations deadline for the 2008 ozone NAAQS until March 12, 2011, which will allow the agency to complete its reconsideration of the 2008 ozone NAAQS before determining whether designations for those standards are necessary. If U.S. EPA does not timely complete its reconsideration of the 2008 ozone NAAQS, U.S. EPA will move forward to complete designations for the 2008 standards no later than March 12, 2011, pursuant to the designations recommendations that states have already submitted to U.S. EPA for the 2008 standards.   

In invoking its one-year extension authority, U.S. EPA reasons that the significant uncertainty that the ozone NAAQS reconsideration creates regarding the continued applicability of the 2008 ozone NAAQS constitutes “insufficient information” to complete designations for those standards by March 12, 2010 within the meaning of the Clean Air Act. Because the ozone NAAQS reconsideration rulemaking action is a reconsideration of the 2008 ozone NAAQS, rather than a new periodic NAAQS review under Section 109(d)(1) of the Clean Air Act, U.S. EPA explains that “a decision to promulgate different standards would result in a full replacement of the 2008 ozone NAAQS.” For a pre-publication version of U.S. EPA’s action extending the deadline for promulgating designations for the 2008 ozone NAAQS, click here. 

 

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

U.S. EPA Proposes Strengthening Ozone Air Quality Standards

  On January 6, 2010, the U.S. Environmental Protection Agency (U.S. EPA) proposed strengthening the national ambient air quality standards (NAAQS) for ozone. The proposal results from the agency’s reconsideration of the 2008 8-hour ozone standards that was announced in September 2009. The 2008 “primary” standard, which is designed to protect public health, and the “secondary” standard, which is designed to protect sensitive vegetation and ecosystems, including forests, parks, wildlife refuges and wilderness areas are identical and set at 0.075 parts per million (ppm). Now, U.S. EPA is proposing to strengthen the 8-hour primary ozone standard to a level within the range of 0.060-0.070 ppm and is also proposing to establish a distinct cumulative, seasonal secondary standard at a level within the range of 7-15 ppm-hours. The proposed secondary standard, also called W126, is designed to account for the cumulative effects of repeated ozone exposures on sensitive vegetation during the three months of the year when ozone concentrations are highest. For a pre-publication version of the proposed rule, click here. 

Stricter standards will be costly. Depending on the level of the final standard, U.S. EPA estimates the cost of implementing the standards in the proposal to range from $19 billion to $90 billion and estimates the health benefits to be between $13 billion and $100 billion. U.S. EPA conducted a supplement to the Regulatory Impact Analysis (RIA) it conducted to analyze the benefits and costs of reducing pollution to meet the ozone standards set in 2008. In the supplement to the RIA, U.S. EPA estimates the value of health benefits of reducing ozone to 0.070 ppm to range from about $13 billion to $37 billion per year in 2010 and the cost of reducing ozone to that level range from an estimated $19 billion to $25 billion per year in 2020. For a standard of 0.060 ppm, U.S. EPA estimates the value of benefits would range from $35 billion to $100 billion per year in 2010 and the cost would range from $52 billion to $90 billion per year in 2020. U.S. EPA assumed in the RIA supplement that the proposed standards could be achieved using a mixture of known air pollution control technologies and unknown, future technologies. U.S. EPA estimates that the annual control technology costs of implementing known controls as part of a strategy to obtain a standard in the proposed range of 0.060 ppm or 0.070 ppm in 2020 would be approximately $3.3 billion to $4.5 billion. While stricter standards will be costly, the Clean Air Act prohibits U.S. EPA from considering costs in setting air quality standards. 

Stricter standards will also mean that more counties will not meet the stricter levels and will be identified as exceeding the new standards and designated nonattainment. Currently, 322 counties out of 675 counties with monitors violate the 2008 8-hour ozone standards of 0.075 ppm. For a map of the counties with monitors violating the 2008 8-hour ozone standards, click here. Based on 2006-2008 air quality data, U.S. EPA estimates that 515 monitored counties would violate an 8-hour standard of 0.070 ppm, an additional 95 counties would violate a standard of 0.065 ppm for a total of 608, and 42 additional counties would violate 0.060 ppm for a total of 650. For a map of counties with monitors violating primary 8-hour ground-level ozone standards in the range of 0.060-0.070 ppm, click here. Viewed from another perspective, only 25 of the counties with ozone monitors would not violate a primary standard of 0.060 ppm. 

U.S. EPA also projects that, based on 2006-2008 air quality data, 196 counties with monitors would violate a secondary seasonal ground-level ozone standard of 15 ppm–hours and that 383 additional counties would violate a standard of 7 ppm–hours for a total of 579. For a map of counties with monitors violating secondary seasonal ground-level ozone standards in the range of 7-15 ppm-hours, click here. 

However, if U.S. EPA finalizes ozone standards at a level below the current standards of 0.075 ppm, U.S. EPA will not designate areas as nonattainment based on 2006-2008 air quality data. U.S. EPA anticipates that designations will be based on 2008-2010 air quality data which U.S. EPA expects to show improved air quality. The improvement in air quality is due in part to reductions made by power plants under the Clean Air Interstate Rule that currently remains in effect although the D.C. Circuit found fundamental flaws in it and remanded it to U.S. EPA. While the number of counties designated nonattainment may be less than depicted on U.S. EPA’s maps, the number will still be substantial and will mean additional air quality planning obligations for states and controls for sources in nonattainment areas. 

U.S. EPA is proposing an accelerated schedule for designating areas as attainment, nonattainment, or unclassifiable for the primary ozone standard. The proposed accelerated schedule is as follows: (1) state Governors submit their recommendations by January 2011; (2) U.S. EPA promulgates final designations by July 2011; (3) designations take effect August 2011; and (3) states with nonattainment areas submit their state implementation plans describing how they will reduce pollution to meet the standards by December 2013. Depending upon the severity of the air quality problem, states would be required to meet the primary standard by 2014–2031. U.S. EPA is planning to propose an implementation rule in the spring of 2010 and issue a final rule as quickly as possible after the final ozone NAAQS that U.S. EPA plans to sign by August 31, 2010. U.S. EPA is taking comment on whether to designate areas for a seasonal secondary standard on an accelerated schedule or a two-year schedule.

U.S. EPA is not proposing to modify the ozone monitoring requirements for ozone. U.S. EPA proposed in July 2009 modifications to the ozone air quality monitoring network design requirements. The proposed monitoring revisions would modify minimum monitoring requirements in urban areas, add new minimum monitoring requirements in non-urban areas, and extend the length of the required ozone monitoring season in many states. U.S. EPA estimates that about 270 new ozone monitors would be required under the proposed monitoring requirements. U.S. EPA expects to issue a final ozone air quality monitoring rule in late summer of 2010. 

Meanwhile, the 2008 8-hour ozone NAAQS and the 1997 8-hour ozone NAAQS (0.08 ppm) remain in place. Implementation for the 2008 8-hour ozone NAAQS is delayed, however. U.S. EPA announced on January 6, 2010, it is extending the deadline for area designations for the 2008 ozone standards by one year or until March 12, 2011. If U.S. EPA issues stricter ozone standards in 2010, these standards would replace the 2008 ozone standards and implementation requirements for the 2008 ozone standards, including designations would no longer apply. Meanwhile, states are to continue their plans for implementing the 1997 NAAQS.

The 2008 standards were adopted under the Bush Administration and were not consistent with recommendations by U.S. EPA’s science advisory panel, the Clean Air Scientific Advisory Committee (CASAC). The range for the proposed standards is consistent with CASAC’s recommendations. If U.S. EPA finalizes standards within that range, they will be more difficult for environmental groups to challenge as insufficiently protective. The D.C. Circuit recently remanded the annual PM2.5 NAAQS which were also inconsistent with CASAC’s recommendations.

While the proposed standards are consistent with CASAC’s recommendations, U.S. EPA based its reconsideration on studies about the health and ecological effects of ozone that were in the record for the 2008 ozone standards. U.S. EPA did not rely on studies that had been published since the science assessment for the 2008 review. Instead, U.S. EPA conducted a “provisional” assessment of studies since the 2008 review was completed and maintains that the new studies do not materially change the conclusions of its earlier science assessment. Whether U.S. EPA used the best science in declining to undertake a full assessment of newer science since the last review may be an issue in any challenges to the ozone standards if they are finalized at a level below 0.075 ppm.

By 2020, U.S. EPA projects that 99 counties with monitors would violate a standard of 0.070 ppm, 149 additional counties would violate a primary standard of 0.065 ppm for a total of 248, and 203 additional counties would violate a standard of 0.060 ppm for a total of 451. For a map of counties with monitors projected to violate a primary 8-hour ozone standard in the range of 0.060 0.070 ppm in 2020, click here. U.S. EPA also projects that by 2020 27 counties would violate a secondary seasonal standard of 15 ppm–hours and 167 additional counties would violate a standard of 7 ppm-hours for a total of 194. For a map of counties with monitors projected to violate the secondary seasonal ozone standards in the range of 7-15 ppm-hours by 2020, click here. 

These projections for 2020 are based on modeled emissions that reflect expected emissions reductions from federal programs some of which are expected to be made stringent than the programs used in the modeling.   For example, although the Clean Air Interstate Rule remains in effect while U.S. EPA considers a replacement rule, the replacement rule is expected to be more stringent when finalized in 2011 than the current rule. In addition, the Clean Air Mercury Rule was vacated by the D.C. Circuit and U.S. EPA is obligated under a consent decree to promulgate maximum achievable control technology standard for mercury and other hazardous air pollutants from power plants by November 2011.

Following publication of the proposed rule and the Federal Register, U.S. EPA will take public comment for 60 days. U.S. EPA will also hold public hearings in Arlington, Virginia and Houston, Texas on February 2, 2010, and in Sacramento, California on February 4, 2010.  

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

US EPA Releases Annual Enforcement Results and Mapping Tool

On December 23, 2009, the U.S. Environmental Protection Agency (EPA) released enforcement results for fiscal year 2009, and has developed a new Web-based tool and interactive map that allows the public to get detailed information by location about the enforcement actions taken at approximately 4,600 facilities.  

The website is available at http://www.epa.gov/compliance/resources/reports/endofyear/eoy2009/index.html 

The web site provides data and background about the Agency’s enforcement actions addressing specific environmental and public health problems, both nationally and locally.

Overview 

In fiscal year 2009, EPA concluded enforcement actions requiring polluters to invest more than $5 billion on pollution controls, cleanup, and environmental projects. Civil and criminal defendants committed to install controls and take other measures to reduce pollution by approximately 580 million pounds annually once all required controls are fully implemented. 

EPA indicates that it targets its enforcement actions to address the most important environmental and public health problems. Approximately 57% of pollution reductions and 71% of pollution control investments obtained through the Agency’s fiscal year 2009 enforcement actions focused on water and air pollution priority problems.  

EPA’s Clean Air Act enforcement actions during fiscal year 2009 reduced approximately 230 million pounds of sulfur oxides, nitrogen oxides and particulate matter per year when all the required pollution controls are in place, resulting in estimated health benefits of between $4 billion to $9.8 billion.  

US EPA has identified national priority areas for enforcement which includes:

·     air toxics (click here for air toxics strategy summary)

·     concentrated animal feeding operations (click here for CAFO strategy summary)

·     municipal sewer overflows (click here for combined sewer overflow strategy summary and here for sanitary sewer overflow strategy summary)

·     new source review (click here for NSR/PSD strategy summary)

·     storm water (click here for storm water strategy summary)

·     RCRA mineral processing (click here for mineral processing strategy summary)

·     financial assurance (click here for financial assurance strategy summary)

·     Indian country (click here for Indian country strategy summary) 

Criminal Enforcement Highlights 

In fiscal year 2009 EPA’s criminal enforcement program continued emphasizing cases with significant environmental, human health and deterrence impact while balancing its overall case load across all pollution statues. The criminal enforcement program emphasizes National Enforcement Priorities, Regional Enforcement Priorities, stationary source air cases, “high impact” cases, repeat or chronic civil noncompliance and import-export cases.  

387 new environmental crime cases were opened in fiscal year 2009, the highest number in the past five years. Almost 1/3 of the new cases opened in fiscal year 2009 were in criminal enforcement priority areas.  

Mapping Tool 

The new mapping tool (click here) allows the public to view the locations of facilities that were the subject of those enforcement actions on interactive maps of the U.S. and territories. The maps show facilities where civil enforcement actions were taken for environmental laws for air, water and land pollution and a separate map shows criminal enforcement actions.  

EPA mapped the locations of more than 90 percent of the facilities that were the subject of enforcement actions last year. Drinking water treatment facilities were not mapped due to potential security concerns. A list of the facilities not mapped is available here.  

Additional information about the mapping tool is available here. 

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC. For more information on the author see here.

U.S. EPA Proposes New Primary SO2 Air Quality Standards

On November 16, 2009, U.S. EPA proposed to adopt a new 1-hour primary national ambient air quality standard (NAAQS) for sulfur dioxide (SO2) at a level between 50 and 100 parts per billion (ppb), based on the 3-year average of the annual 99th percentile (or 4th highest) of 1-hour daily maximum concentrations. U.S. EPA is also proposing to revoke both the existing 24-hour primary standard of 140 ppb and annual primary SO2 standard of 30 ppb. Alternatively, U.S. EPA is seeking comment on a 1-hour NAAQS up to 150 ppb. At a level of 150 ppb, U.S. EPA would retain the existing 24-hour and revoke only the annual standard. Comments are due 60 days after U.S. EPA publishes the proposal in the Federal Register. U.S. EPA will hold a public hearing for its proposed rule on January 5, 2010 in Atlanta, Georgia, and is obligated under a consent decree to sign a final rule on the primary SO2 primary NAAQS by June 2, 2010. For the pre-publication version of the proposed rule, click here. 

Any final revised SO2 NAAQS will affect facilities that burn fossil fuels, including power plants and other industrial facilities. U.S. EPA estimates, based upon 2005 emissions data, that fossil fuel combustion at power plants and other industrial facilities accounts for 66% and 29%, respectively, of total U.S. SO2 emissions. Other sources of SO2 emissions include industrial processes such as extracting metal from ore, and the burning of high sulfur fuels by locomotives, large ships, and non-road equipment. 

If the SO2 NAAQS is revised as proposed, additional areas could be classified as nonattainment, meaning the area does not meet the standard. For a map of the counties designated nonattainment for the current SO2 standard, click here. Based upon data from 2006-2008, U.S. EPA projects that 45 counties have monitors that would exceed a NAAQS of 100 ppb, 22 additional counties for a total of 67 counties would violate a standard of 75 ppb, and 40 additional counties for a total of 147 counties would exceed a standard of 50 ppb. For a map of counties with monitors currently violating proposed range for 1-hour SO2 standard of 50-100 ppb, click here. For a map of counties with monitors projected to violate proposed range for 1-hour SO2 standard of 50-100 ppb in 2020, click here.  

If U.S. EPA signs the final revised SO2 NAAQS in June 2010, then state governors would have an opportunity to submit to U.S. EPA recommendations for the areas in their state that should be “designated” or identified as “attainment” (i.e., meeting the standard), “nonattainment” (i.e., failing to meet the standard), or “unclassifiable” (i.e., information is not available). The state governors’ recommendations would be due in June 2011, and U.S. EPA would promulgate final designations in June 2012, within two years of the anticipated effective date of the final revised standard, if any. No later than 120 days before the agency promulgates the designations, U.S. EPA must give notice to the states of any modifications to their initial designations. This notification of any modifications would be due in February 2012 if U.S. EPA adheres to its schedule and promulgates final designations in June 2012. In the event of insufficient information, the Clean Air Act provides that U.S. EPA can take an additional year or until June 2013 to designate areas.   

The final designation date is important because attainment dates or the latest date by which a nonattainment area is required to attain or meet the NAAQS is determined from the effective date of the nonattainment designation for the area. Areas designated nonattainment must achieve the NAAQS “as expeditiously as practicable, but no later than 5 years from the date such area[s were] designated nonattainment”. If U.S. EPA promulgates final SO2 designations by June 1, 2012, then nonattainment areas would be required to meet the SO2 standard no later than the summer of 2017.   

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

EPA Delays Final Decision on E15 Waiver

EPA is working to implement its long-term renewable fuels mandate of 36 million gallons by 2022. With the exception of a limited number of retail locations which market fuel containing up to 85% ethanol for use in flex fuel vehicles, the vast majority of fuels have been limited to a 10% blend of ethanol pursuant to waiver which became effective in 1978. The use of E10 is expected to peak in 2011 or 2012 hitting what is known as "the blend wall". At that point, the use of renewable fuels will be well short of EPA's goal. Against that backdrop, on March 6, 2009, Growth Energy and 54 ethanol manufacturers petitioned EPA under Section 211(f) of the Clean Air Act to allow the blending of up to 15% ethanol in gasoline (E15). EPA solicited comments from all stakeholders concerning this petition.  

 

In correspondence dated November 30, 2009, Gina McCarthy, Assistant EPA Administrator advised Growth Energy that EPA did not have sufficient information to grant the waiver petition. EPA indicated that although the studies had not been completed, EPA's assessment to date indicated that the fuel, engine and emission control systems on newer vehicles would likely be compatible with higher blends of ethanol such as E15. However, EPA indicated that it continues to evaluate the question of component durability when higher blends are used over many thousands of miles. EPA referenced an on-going study conducted by the Department of Energy which will provide data on this issue. According to EPA, DOE's program involves complete testing of 19 vehicles to examine the long-term emissions impact of higher ethanol blends on newer vehicles and is expected to be completed by August, 2010. To date, DOE's tests have been completed for only two vehicles, but an additional 12 vehicles are expected to be tested by the end of May. Should these tests results be positive, EPA indicates that it could be in a position to approve E15 for 2001 and newer vehicles by mid 2010.  

 

Anticipating that E15 would be sold in addition to E10, EPA indicated that it was taking steps to address fuel pump labeling issues to make sure consumers utilized the proper gasoline for their vehicles and equipment (such as lawn mowers, boats, etc.) should higher ethanol blends be approved.  

 

In addition to the future Department of Energy vehicle tests, there are several other factors which may delay or limit the blending of E15. First, refiners may have to make a different blend stock to accommodate E15. Second, it is not clear that the retail end of the industry is prepared to handle E15. According to OPIS (Oil Price Information Service), there are 700,000 gasoline dispensers at 160,000 gasoline outlets across the United States and none are certified for fuel above E10. Although many outlets sell E85, OPIS indicates that these locations may violate OSHA requirements that dispensers be certified by Underwriters Laboratory (UL). There is also some concern regarding the impact of higher levels of ethanol on underground storage tanks over time. Finally, since it appears the E15 may not be suitable for pre-2001 cars and smaller engines, it may be difficult for retailers to service the entire market without the capacity to blend ethanol at the pump. This may require costly changes in retail equipment and infrastructure.

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

USEPA Makes Final Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act

On December 7, 2009, United States Environmental Protection Agency (“USEPA”) Administrator Lisa Jackson finalized two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act. The first finding, termed the “Endangerment Finding,” finds that the current and projected concentrations of six greenhouse gases in the atmosphere threaten the public health and welfare of current and future generations. The six named greenhouse gases are carbon dioxide (CO₂), methane (CH₄), nitrous oxide (N₂O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF₆). The second finding, termed the “Cause or Contribute Finding” finds that the combined emissions of these six greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare. These findings do not themselves impose any requirements on industry or other entities.

 

These findings will be published in the Federal Register under Docket ID No. EPA-HQ-OAR-2009-0171.  A pre-publication version of these findings can be found at www.epa.gov/climatechange/endangerment/downloads/FinalFindings.pdf.

 

Technical analyses developed by the USEPA in support of the Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act may be found at www.epa.gov/climatechange/endangerment/downloads/Endangerment%20TSD.pdf.

 

On April 17, 2009, the Administrator signed proposed endangerment and cause or contribute findings for greenhouse gases under Section 202(a) of the Clean Air Act.  USEPA held a 60-day public comment period, which ended June 23, 2009, and received over 380,000 public comments.  These included both written comments as well as testimony at two public hearings in Arlington, Virginia and Seattle, Washington. USEPA’s response to the public comments it received can be found at www.epa.gov/climatechange/endangerment.html.

 

This article was co-authored by Kevin McGuire and Mary Beth Naumann, Jackson Kelly PLLC. For more information on the authors see (McGuire) here and (Naumann) here.