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White House Directs U.S. EPA to Withdraw Ozone Air Quality Standards

On the Friday before lawmakers returned to Washington after Labor Day, President Obama directed U.S. EPA to withdraw the reconsidered ozone national ambient air quality standards (NAAQS) rule. The current ozone standard is set at 75 parts per billion (ppb) and the regulation would have tightened the standard to between 60 and 70 ppb.  According to U.S. EPA, compliance costs for a standard as low as 60 ppb would have been as much as $90 billion per year.  

In addition to the compliance costs, the stricter limits would have increased the number of counties in West Virginia and across the nation in violation of the standard.  This is significant because counties in violation of air quality standards may have trouble attracting new industrial business, such as power plants, manufacturing facilities, and possibly oil-and-gas projects, and industrial businesses may decline to expand their existing facilities located in such areas.  States with areas in violation of the NAAQS must adopt implementation plans to attain and maintain the air quality standards in their borders and prohibit interference with the attainment and maintenance of the standards in neighboring states.  For facilities, tighter limits on air emissions can mean regulatory requirements to install additional emission controls. 

While the reconsidered ozone NAAQS rule has been withdrawn, both President Obama and U.S. EPA Administrator Jackson have promised to revisit the standard in 2013.  Meanwhile, litigation challenging the current standard and U.S. EPA’s failure to implement the current standard will move forward.  Time will tell whether the judicial branch will influence the next ozone NAAQS.  In the meantime, states, local governments, and businesses concerned about a tightening of the standard should stay abreast of the current review and focus on the improvement in air quality that has taken place and that will continue to take place as a result of various air regulations.   

President Obama stated in his White House press release that the statutorily required review of the standard is underway and that that review “will result in reconsideration of the ozone standard in 2013.”  He succinctly stated:  “Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.”  He emphasized the actions taken by his administration to protect public health, including “reducing mercury and other toxic air pollution from outdated power plants” and “doubling the fuel efficiency of…cars and trucks” and reiterated his commitment to protecting public health and the environment. 

In a September 2, 2011 letter to U.S. EPA Administrator Lisa Jackson, Cass R. Sunstein, the White House Office of Management and Budget’ Information and Regulatory Affairs Administrator, elaborated on the withdrawal of the rule.  He wrote that President Obama “has made it clear that he does not support finalizing the rule at this time.”  The White House letter emphasized that “finalizing a new standard now is not mandatory and could produce needless uncertainty.”  Noting that U.S. EPA would be revisiting the current standards in 2013 as required under the Clean Air Act, the letter states: “issuing a final rule in late 2011 would be problematic in view of the fact that a new assessment, and potentially new standards, will be developed in the relatively near future.”  Citing an executive order requiring that federal regulations “must be based on the best available science,” the letter urges U.S. EPA to “reconsider whether to issue a final rule in late 2011, based on evidence that is no longer the most current, when a new scientific assessment is already underway.”  Finally, the letter emphasizes the steps U.S. EPA has already taken to reduce ozone and lists the heavy-duty truck rule, Cross State Air Pollution Rule for power plants, and national standards for mercury and other air toxics.  See articles posted on the Energy & Environment Monitor titled “EPA Announces Cross-State Air Pollution Rule,” “White House Begins Review of Air Pollution Rules for Coal-Fired Power Plants,” and “EPA Proposes 91% National Reduction for Mercury As Well As Reductions of Other Toxics from Power Plants And Claims That Program Will Reduce Future Cost Of Power,” posted July 19, 2011, June 6, 2011, and March 16, 2011, respectively. 

U.S. EPA Administrator Jackson responded in a one-paragraph statement.  She promised to “revisit the ozone standard, in compliance with the Clean Air Act”.  She too emphasized the safeguards U.S. EPA has taken to ensure clean air, including “the most significant reduction of sulfur dioxide and nitrogen oxide air pollution across state borders; a long-overdue proposal to finally cut mercury pollution from power plants; and the first-ever carbon pollution standards for cars and trucks.”  For the statement by U.S. EPA Administrator Jackson, click here. 

Under the Clean Air Act, U.S. EPA is required to set national ambient air quality standards for common air pollutants called “criteria” pollutants, including ozone, and to review the standards every five years.  The ozone rule that has been withdrawn was outside the normal review cycle.  U.S. EPA initiated proceedings to reconsider the 2008 standards in 2009.  See article posted on the Energy & Environment Monitor titled “EPA Reconsiders 8-Hour Ozone Air Quality Standards,” posted September 30, 2011. 

The current standard was set during the Bush Administration in 2008.  The Bush Administration tightened the standard from 84 ppb to 75 ppb but at 75 ppb the standard was less stringent than recommended by U.S. EPA’s Clean Air Scientific Advisory Committee (CASAC).   The standard was challenged in court with the environmental groups contending that the standard was too lenient and industry arguing that the standard was unnecessary.  Mississippi v. EPA, No.  No. 08-1200 (D.C. Cir.).  In court filings in August 2011, U.S. EPA represented that the reconsidered ozone NAAQS rule would be signed “shortly”; however, upon receipt of September 2, 2011 letter, U.S. EPA notified the D.C. Circuit that it “no longer expects that it will take final action to complete its reconsideration of the 2008 Ozone NAAQS in the near future.”  U.S. EPA indicated it would file a revised motion to govern further proceedings.  

In January 2010, the Obama Administration proposed to revise the standards and to set the health-based or “primary” standard in the range recommended by CASAC and to set a separate welfare-based or “secondary” standard.   See article posted on the Energy & Environment Monitor titled “U.S. EPA Proposes Strengthening Ozone Air Quality Standards” posted January 8, 2010. 

The reconsidered ozone NAAQS that was withdrawn was delayed four times.  See articles posted on the Energy & Environment Monitor titled “U.S. EPA Postpones Reconsidered Ozone Air Quality Standards Again” and “U.S. EPA Delays Ozone NAAQS Reconsideration Final Rule until Summer 2011,” posted November 17, 2010, and December 8, 2010, respectively. 

While U.S. EPA reconsidered the ozone standard, the litigation challenging the 2008 standards was held in abeyance but now the litigation will proceed. The environmental group’s challenge is based in part on the D.C. Circuit decision in American Farm Bureau Federation v. EPA, 559 F. 3d 512 (D.C. 2009), remanding the annual air quality standard for particulate matter, because the standard was inconsistent with the recommendation of U.S. EPA’s science advisors.  

In addition to the litigation challenging the 2008 ozone NAAQS, an environmental group brought a citizen suit to compel U.S. EPA to promulgate designations for the 2008 ozone NAAQS.  WildEarth Guardians v. EPA, No. No.2:11-cv-01661-LOA (D. Ariz.).  When U.S. EPA proposed strengthening the ozone standard in 2010, the Agency also extended the deadline for designating areas for the 2008 ozone standards by one year from March 12, 2010 to March 12, 2011.  See article posted on the Energy & Environment Monitor titled “U.S. EPA Extends Deadline for 2008 Ozone Designations,” posted January 11, 2010.  

U.S. EPA has not identified those areas of the county that meet, exceed or have insufficient data to permit classification as meeting or exceeding the 2008 standards.  Meanwhile, air quality continues to improve as a result of various regulations and control measures on the books or on the way, including the Clean Air Interstate Rule or CAIR that the Cross State Air Pollution Rule is intended to supersede as well as other measures identified by the White House and U.S. EPA Administrator Jackson.   

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

Greg Stella Testifies Before U.S. House of Representatives Committee on Space, Science, and Technology

            On September 15, 2011, Greg Stella, Senior Scientist, Alpine Geophysics, LLC testified before the U.S. House of Representatives Committee on Space, Science, and Technology regarding the work he conducted on behalf of Jackson Kelly PLLC’s client Midwest Ozone Group relating to the  Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution Rule (CSAPR).  The testimony was part of a hearing to review the scientific, procedural, and technical basis for CSAPR. 

             CSAPR replaces EPA’s 2005 Clean Air Interstate Rule (CAIR).  A December 2008 court decision found flaws in CAIR, but kept CAIR requirements in place temporarily while directing EPA to issue a replacement rule.  The Cross-State Air Pollution Rule requires 27 states in the eastern half of the United States to improve air quality by reducing power plant emissions that cross state lines and contribute to ground-level ozone and fine particle pollution in other states.  CSAPR requires significant reductions of sulfur dioxide (SO2) and nitrogen oxides (NOX) emissions. 

            Panelists expressed their concerns about CSAPR citing unfair process, weak technical basis, and major economic harm.  Panelists included:

Panel One

Dr. Bryan W. Shaw, Chairman, Texas Commission on Environmental Quality
Mr. Gregory Stella, Senior Scientist, Alpine Geophysics, LLC
Mr. Barry T. Smitherman, Commissioner, Texas Railroad Commission
Mr. Wayne E. Penrod, Executive Manager, Environmental Policy, Sunflower Electric Power Corporation
Mr. Chip Merriam, Chief Legislative & Regulatory Compliance Officer, Orlando Utilities Commission

The Panelists were accompanied by:

Panel Two

The Honorable Gina McCarthy, Assistant Administrator, Office of Air and Radiation, Environmental Protection Agency

A summary of the hearing prepared by the Committee can be found at:

http://science.house.gov/press-release/witnesses-denounce-epa-cross-state-air-pollution-rule

Additionally, an archived webcast of the hearing itself can be viewed (or downloaded) at:

http://science.edgeboss.net/wmedia/science/sst2011/091511.wvx

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

Huntington-Ashland Tri-State Area Meets Ambient Air Standards for Fine Particulates

On September 7, 2011, EPA determined that the tri-state Huntington-Ashland Area attained compliance with the 1997 national ambient air quality standards (NAAQS) for annual fine particulate matter (PM_2.5).  The 1997 PM_2.5 standards require that all monitoring sites within an area have yearly averages for fine particulate matter below15 µg/m³.  Air quality monitoring data from various collection sites in the Huntington-Ashland Area from 2007 to 2009 shows that the averages ranged from12.2µg/m³ to 14.3µg/m³. 

As a result of the Area’s compliance with the 1997 PM_2.5 standard, and for as long as compliance with the standard is maintained, the Area will no longer be required to submit attainment demonstrations, reasonably achievable control measures (“RACM”), a reasonable further progress (“RFP”) plan, contingency measures, and State Implementation Plans (“SIP”) related to attaining the standard.   

EPA’s recent determination of compliance does not, however, constitute a redesignation of the Huntington-Ashland area as an attainment area for the 1997 PM_2.5 standard_.  To be redesignated as an area of attainment, EPA must first determine that the Area’s improvement in air quality is due to “permanent and enforceable reductions in emissions” and must approved the Area’s maintenance plan to continue to attain the standards.  

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.

2011 WVDEP State of the Environment Report

Fourth Edition released -- State of the Environment Report

On August 3, 2011, the West Virginia Department of Environmental Protection (WVDEP) released the fourth edition of its West Virginia State of the Environment Report (SOTE).  Per the WVDEP news release: 

The report covers the years 2008-10 and highlights data and trends pertaining to West Virginia’s environment.  The report, which comes out every three years, continues the long-term process of identifying and tracking changes in the environment that result from human activities.  It also provides a basis for determining the success of regulatory and non-regulatory efforts designed to improve environmental quality. 

The report is divided into four sections -- air, water, land and energy -- and examines environmental aspects such as reported emissions of toxic air pollutants into the atmosphere; West Virginia’s aquatic integrity; hazardous and solid waste generation; and the management of abandoned wells. 

Purpose of the SOTE Report

Per the introduction to the SOTE, WVDEP’s purpose for this report is as follows: 

The fourth edition of West Virginia’s State of the Environment Report is based on a scientific approach to describing elements of environmental quality.  To the extent possible, the report presents a numerical view of the air we breathe, the quality of our waters, and the land we live on.  It shifts the focus from reporting about activities that are conducted to protect the environment to the results those activities achieve in improving environmental quality.  In some instances, environmental impacts of human activity cannot be measured directly.  For those cases, indirect measures such as regulatory and non-regulatory program activities may be used.  

The report does not draw conclusions about the quality of West Virginia’s environment.  It simply presents a common base of data and trends, where possible, for others to interpret and analyze.  Furthermore, this report continues what will be a long-term process to identify and track changes in the environment resulting from human activities.  It also provides a basis for evaluating the success of regulatory and non-regulatory programs designed to improve environmental quality.  

In this report, information about environmental quality is presented through the use of environmental indicators.  These are measures of physical, chemical, biological, or socioeconomic factors that represent the key elements of complex ecosystems or environmental issues. 

DEP Cabinet Secretary Randy C. Huffman had the following remarks concerning this edition of the SOTE Report: 

Much has changed in the three years since the West Virginia Department of Environmental Protection released its last State of the Environment Report.  The federal Environmental Protection Agency’s increased involvement in the state’s permitting process for coal mining and the natural gas industry’s rush to tap into the lucrative Marcellus Shale, for example, have created new chapters in environmental regulation.  

As we present the fourth edition of the State of the Environment Report, I can assure you one thing hasn’t changed.  The DEP remains steadfast in its mission of promoting a healthy environment. 

To view or download an electronic version of the 2011 SOTE Report go to:

http://www.dep.wv.gov/pio/Pages/State%20of%20the%20Environment%20report.aspx 

Hard copies of the report can be picked up at DEP headquarters, located at 601, 57th St, SE, Charleston, WV  25304.  Written requests for a hard copy should be mailed to the “DEP Public Information Office” at the same address, or emailed to Thomas.J.Aluise@wv.gov. 

EPA’s Counterpart Report on the Environment

To access similar environmental quality information from a national perspective, readers may wish to review a counterpart federal EPA report entitled Report on the Environment (ROE), which can be viewed or downloaded at http://www.epa.gov/roe/.  Per the EPA: 

The ROE presents the best available indicators of information on national conditions and trends in air, water, land, human health, and ecological systems that address 23 questions EPA considers mission critical to protecting our environment and human health. 

The ROE provides access to the information from the ROE report, published in 2008 with a companion Highlights Document, which includes the underlying methodology, references, and sources of additional information, in an on-line searchable format. 

This article was partially excerpted from publically available information, and was authored 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.

EPA Announces Cross-State Air Pollution Rule

On July 7, 2011, the U.S. Environmental Protection Agency (EPA) announced its final transport rule to reduce interstate transport of emissions that contribute to fine particulate matter (PM2.5) and ozone.  The rule sets emissions budgets that cap emissions in 27 states in the eastern half of the United States and affects coal-fired power plants located in those states.  Beginning as early as next year, the rule will require coal-fired power plants to reduce emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx), both of which contribute to PM2.5 and ozone air pollution.  The rule addresses emissions that EPA has identified under the “good neighbor” provision of the Clean Air Act as significantly contributing to nonattainment or interfering with maintenance of the 1997 PM2.5 and ozone National Ambient Air Quality Standards (NAAQS) and 2006 24-hour PM2.5 NAAQS in downwind states. 

The final transport rule, called the Cross-State Air Pollution Rule (CSAPR), replaces a transport rule called the Clean Air Interstate Rule (CAIR) that EPA promulgated in 2005.  CAIR was originally vacated as “fatally flawed,” but later remanded without setting aside the rule, by the United States Court of Appeals for the District of Columbia in 2008.  Among the flaws identified by the D.C. Circuit were EPA’s compliance deadlines as too late to help downwind areas achieve attainment by their statutory deadlines and EPA’s emissions trading system, which the court said did not ensure that the required emissions reductions would occur within each covered state.  While the Agency returned to drawing board, CAIR remained in place and power plants initiated costly construction programs to install controls necessary to come into compliance with CAIR and have been complying with CAIR ever since. 

The Midwest Ozone Group (MOG) and others questioned whether a new transport rule with a new set of emission reductions was needed to address the nation’s air quality standards.  In its comments on the proposed transport rule, MOG submitted air quality data more recent than the air quality and source emission data relied upon by EPA for its CSAPR.  MOG’s modeling shows that no additional controls are needed beyond CAIR to bring most or all sites into attainment.  EPA rejected MOG’s modeling results, however, and stated that “any analysis of whether beyond CAIR controls are necessary is irrelevant to [CSAPR]”.  See the pre-publication version of CSAPR beginning at 114, available at: http://www.epa.gov/airtransport/actions.html. 

Additionally, the final transport rule does not address emission reductions that are likely to be required for communities in downwind states to achieve the final reconsidered ozone NAAQS that EPA is expected to announce the end of July 2011 or the new particulate matter (PM) NAAQS that EPA is expected to propose by the end of this summer.  The 2006 annual PM2.5 NAAQS was remanded in 2009 by the D.C. Circuit to the Agency to explain why the annual standard that the Agency promulgated deviated from the recommendations of EPA’s Clean Air Science Advisory Committee.  American Farm Bureau Federation v. EPA, 559 F.3d 512 (D.C. Cir. 2009).  During the Bush Administration in 2008, EPA promulgated an ozone NAAQS that is more stringent than the 1997 NAAQS, but in 2009 following the D.C. Circuit’s decision, the Obama Administration decided to reconsider the 2008 ozone NAAQS, explaining that EPA’s Clean Air Science Advisory Committee had recommended lower levels than those promulgated by EPA under President Bush.  Indeed, EPA has announced that it plans to issue two more transport rules and that CSAPR will serve as a model for these additional transport rules.      

EPA says its modeling shows that coal use will not decrease under the Cross-State Air Pollution Rule.  In the final rule, EPA identifies a number of measures that coal-fired power plants may take to achieve the required emission reductions, including:  “effective and frequent operation” of existing control equipment; low sulfur coal; increased generation from “relatively cleaner units”; and/or installation of add-on control equipment such as low NOx burners, scrubbers, or dry sorbent injection.  This last option is obviously not feasible for power plants trying to figure out how to bring emissions units into compliance by January 2012. 

According to EPA, the benefits of the rule and supplemental proposal outweigh their costs.  EPA estimates that the rule and supplemental proposal will result in $120 to $280 billion in annual benefits in 2014.  Of the estimated annual benefits, most are public health-related.  EPA summarizes the state-level public health benefits in 2014, stating that: “The public health benefits in most states exceed the combined annual costs of implementing the Cross-State Air Pollution rule for the entire region.”  EPA attributes $4 billion to visibility improvements in national parks and wilderness areas. EPA estimates costs in 2014 to include annual costs of $800 million and approximately $1.6 billion per year in capital investments as a result of CAIR for a total of $2.4 billion.  

EPA acknowledges that the effects of the rule on jobs are “modest,” but “positive”.  In the Fact Sheet that accompanied the final rule, EPA says it examined “some employment impacts” and its analysis “show[s] that some jobs are lost, but more are gained as some companies construct and operate pollution control equipment to comply with the rule.” 

Additionally, EPA asserts, in its PowerPoint presentation on CSAPR, that the rule will have “small effects on electricity generation”.  According to EPA estimates, in 2014 “[a]verage monthly household electricity bill increases by 1 percent” and “natural gas prices increase less than 1 percent”.  EPA characterizes changes in power generation as “small”. 

Compliance deadlines:            The rule phases in reductions but requires compliance beginning January 1, 2012.  For SO2 and annual NOx reductions compliance is required by January 1, 2012, and for ozone-season NOx reductions, compliance is required at the beginning of the 2012 ozone-season or by May 1, 2012.  Phase 2 SO2 and annual NOx reductions are required by January 1, 2014, and Phase 2 ozone-season NOx reductions are required by May 1, 2014. 

Emissions reductions:  EPA projects that the rule will reduce power plant SO2 emissions by 6.4 million tons per year (tpy) or 73 percent from 2005 levels and power plant NOx emissions by 1.4 million tpy, including 340,000 tpy of NOx during the ozone season (May 1 – September 30), or 54 percent from 2005 levels. 

Pollutants:  The rule targets SO2 and NOx emissions from power plants and includes separate requirements for annual SO2 reductions, annual NOx reductions, and ozone-season NOx reductions. 

States:  The rule requires 27 states in the eastern half of the United States to reduce SO2 and NOx emissions.  Twenty-one states, including West Virginia, are required to reduce annual SO2 and NOx emissions, and 20 states, including West Virginia, are required to reduce NOx emissions during the ozone-season.  The 27 affected states are:  Alabama; Arkansas; Florida; Georgia; Illinois; Indiana; Iowa; Kansas; Kentucky; Louisiana; Maryland; Michigan; Minnesota; Mississippi; Missouri; Nebraska; New Jersey; New York; North Carolina; Ohio; Pennsylvania; South Carolina; Tennessee; Texas; Virginia; West Virginia; and Wisconsin.  

In a supplemental proposal signed on the same day as the final CSAPR and published in the Federal Register five days later (76 Fed. Reg. 40662, July 11, 2011), EPA is proposing to include 6 states – Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin – in the CSAPR ozone-season control program.  Of those 6 states, only Oklahoma is not covered by the final CSAPR for PM2.5.  The supplemental proposal, if finalized, would bring the total number of states covered by the CSAPR to 28.  Comments on the supplemental proposal are due August 22, 2011.  EPA plans to finalize the supplemental proposal by late fall 2011. 

Budgets:  The rule caps SO2 emissions at 2.4 million tons per year annually and NOx emissions at 1.2 million tons per year, including ozone-season NOx emissions at 600,000 tons per year.  The CSAPR budgets are more stringent than the CAIR budgets.  Power plants will achieve annual SO2 emissions around 1.8 million tons lower and annual NOx emissions around 76,000 tons lower than what would have been achieved by 2014 under CAIR. 

Trading:  The rule allows trading and allows both intrastate and interstate trading.  Power plants may trade emissions with other power plants within the same program, i.e., annual SO2 and NOx programs and ozone-season program in the same or different states.  The trading programs are described by EPA as “air quality-assured trading programs”.  The rule manages any emissions shifting that may occur as a result of interstate trading by including provisions to ensure that necessary reductions will occur within every covered state. 

Residual nonattainment:  By 2014, when the CSAPR is fully implemented, EPA projects that only the Houston-Galveston metropolitan area will continue to violate the 1997 ozone standard and only the Liberty-Clairton, PA area will continue to violate the 24-hour PM2.5 standards.    

Implementation:  Initially, the CSAPR will be implemented through federal implementation plans (FIPs) that EPA is imposing upon each of the 27 affected states.  Each state may replace EPA’s FIP with a state implementation plan (SIP) to achieve the required amount of emission reductions from sources selected by the state. 

Resources:  For additional information on EPA’s Cross-State Air Pollution Control Rule, visit http://www.epa.gov/airtransport/. 

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

EPA Announces Secondary Air Standards for Nitrogen and Sulfur Oxides

On July 13, 2011, the U.S. Environmental Protection Agency (EPA) announced a proposal for secondary air quality standards “to protect the environment from nitrogen oxides (NOx) and sulfur oxides (SOx).” EPA stated that its proposal “builds on EPA efforts already underway to reduce NOx and SOx emissions” (EPA announced its Cross State Air Pollution Rule (formerly known as the Clean Air Transport Rule) on July 6). 

EPA added that it has made significant progress in developing a multi-pollutant standard that it believes is protective of vulnerable ecosystems, and noted that it is planning to conduct a field pilot program to collect and analyze additional data and information. 

In its July 13 announcement, EPA also said that it is proposing to set an additional secondary standard for both NOx and SOx, that the new standards will be identical to the public health standards revised last year, and that it is proposing to retain the existing secondary standards for each pollutant. 

EPA will accept comments for 60 days after the proposed rule is published in the Federal Register and noted that it will issue a final rule by March of 2012. More information is available at the following EPA web site URL: http://www.epa.gov/air/nitrogenoxides/actions.html.  

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

Supreme Court Rules CAA Trumps Federal Common Law Carbon Dioxide Emissions Abatement for Power Plants

The US Supreme Court on June 20, 2011, issued a slip opinion in the climate change nuisance case AEP v. Connecticut, which was argued April 19, 2011. A prior case, Massachusetts v. EPA, 549 US 497, had held that the Clean Air Act (CAA) authorizes regulation of greenhouse gasses and that EPA had misread the statute in denying a petition to establish greenhouse gas emission limits for new motor vehicles. In response to that case, EPA subsequently initiated a rulemaking process to establish New Source Performance Standards for greenhouse gas emissions from new, modified, and existing fossil fired power plants. 

In the case at bar, which was commenced prior to EPA’s recent rulemaking proposal, two groups of plaintiffs filed separate complaints in a Federal District Court against the same five major electric power companies. One group of plaintiffs included eight States and New York City; the second joined three nonprofit land trusts. According to the complaint, the defendants are the nation’s largest emitters of carbon dioxide. Plaintiff alleged that, by contributing to global warming, the defendants’ emissions substantially and unreasonably interfered with public rights, in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. All plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. 

The District Court dismissed both suits as presenting nonjusticiable political questions, but the Second Circuit reversed. On the threshold questions, the Circuit held that the suits were not barred by the political question doctrine and that the plaintiffs had adequately alleged Article III standing. On the merits, the court held that the plaintiffs had stated a claim under the “federal common law of nuisance,” relying on the Supreme Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry, see, e.g., Illinois v. Milwaukee, 406 U. S. 91, 93 (Milwaukee I). The Federal District Court also held that the CAA did not “displace” federal common law. 

In AEP v. Connecticut, the Supreme Court holds that the Second Circuit’s exercise of jurisdiction is appropriate. More importantly, the Court holds that the CAA and the EPA action that the CAA authorizes displace any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants. 

The Court reasons: 

If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1).The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. There is no room for a parallel track.           

The Court adds that the prescribed decision making framework of the CAA is another reason to avoid setting standards by judicial decree under Federal tort law. 

A door remains slightly open for further action based on the fact that the plaintiffs also sought relief under state nuisance law. The Supreme Court notes that the Second Circuit decision did not reach those claims because it held that federal common law governed. Accordingly, the Court says that the availability of a state lawsuit depends on the preemptive effect of the federal Act, adding that “[b]ecause none of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law, the matter is left for consideration on remand.” 

The Court in its decision June 20 remands the case to the Second Circuit “for further proceedings consistent with this opinion.” 

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

EPA Releases Company Confidential Information

In a highly unusual and precedent setting action June 8, 2011, U.S. EPA made public the identities of more than 150 chemicals contained in 104 health and safety studies required by the Toxic Substances Control Act (TSCA).  A few companies had voluntarily declassified information, but most chemical identities were unilaterally made public by EPA.  Apparently all of the companies had made appropriate confidentiality claims which were fully accepted by U.S. EPA;  there is no mention of a claim by EPA that the claims of confidential business information were unwarranted (see 3/24/11 action described below).  EPA’s rationale for releasing this confidential data was the need to provide the public has as much information as possible about the health and the environmental impacts of chemicals, the U.S. Environmental Protection.

The chemical identity composition data for these 104 TSCA studies will no longer be redacted from the public report.  The chemicals involved are used in dispersant formulations and consumer products such as air fresheners, non-stick and stain resistant materials, fire resistant materials, nonylphenol compounds, perfluorinated compounds, and lead. 

Under the Obama Administration, EPA has taken a series of unprecedented actions to provide the public with greater access to information on the chemicals that are manufactured and used in the United States. In 2010, EPA challenged industry to voluntarily declassify allegedly “unwarranted” claims of confidential business information (CBI). The agency also issued new guidance (Jan. 21, 2010, 75 FR 3462) outlining plans to deny confidentiality claims for chemical identity in health and safety studies under the TSCA. Based on this guidance, EPA notified a number of companies in February, 2011, that the agency had determined that their CBI claim was not eligible for confidential treatment under TSCA and that EPA intended to make the information public. On March 24, 2011, EPA made 42 health and safety studies that had been claimed and treated as confidential available to the public.  EPA is committed to posting new declassified materials under TSCA on the agency website on a regular basis. 

The release of this confidential data submitted by companies pursuant to TSCA is of significant concern because of all of the environmental programs, the most detailed information regarding product composition is submitted pursuant to TSCA. This type of information makes reverse engineering of the product possible and when TSCA was implemented, industries’ greatest concern was the probability for product infringement. EPA assuaged these concerns via the mechanism of “confidential business information” (CBI), with the assurance that CBI would be maintained and the information would not be disclosed to the public. 

It is certainly possible that EPA will be taking similar actions in regard to the claims for CBI made pursuant to the Clean Air Act, the Clean Water Act and RCRA. The most important of these is the Clean Air Act since the type of information required by EPA often requires submittal of detailed process information. 

Over the past several months EPA has taken a number of other steps to make chemical information more readily available.  December 22, 2010, EPA made available the new Chemical Data Access Tool available on Data.gov to find health and safety data that has been submitted to the Agency, under authorities in sections 4, 5, and 8 of TSCA.  On May 17, 2010, EPA added more than 6,300 chemicals and 3,800 chemical facilities regulated under TSCA to EPA's public Envirofacts database. The Envirofacts database is EPA's single point of access on the Internet for information about environmental activities that may affect air, water and land, and provides tools for analyzing the data. It includes facility name and address information, aerial image of the facility and surrounding area, and the map location of the facility. Envirofacts links to other EPA information on the facility, such as EPA's inspection and compliance reports that are available through the Enforcement Compliance History Online (ECHO) database, which includes historic information.   

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

White House Begins Review of Air Pollution Rules for Coal-Fired Power Plants

On May 16, 2011, EPA submitted final air pollution rules for coal plants to the White House.  These regulations, known as the Clean Air Transport Rule, would require coal-fired power plants to implement new pollution control systems if their emissions cross state lines.  Specifically, this rule would require coal-fired power plants to significantly reduce emissions of sulfur dioxide and nitrogen oxides.  Such emissions have been linked to acid rain and soot, while nitrogen oxide is also said to contribute to smog accumulation. 

The Clean Air Transport Rule accompanies other forthcoming EPA rules limiting greenhouse gases, toxic emissions and the handling of coal ash.  These rules have the potential to force older coal-fired power plants to upgrade or retire within the next few years.  Accordingly, coal-related utilities have pointed out that the proposed rules will cause increases in electric costs. 

EPA’s submission of the final draft of the rule to the White House is the final step before EPA is authorized to release it.  According to EPA air policy senior counsel Joe Goffman, the process typically takes 1-2 months, so the final rule should be released to the public around the end of June.  

The proposed regulations were released in July 2010.  The new rule would supplant the Clean Air Interstate Rule, a similar program developed under the George W. Bush administration that was invalidated by a court order in 2008. 

This article was authored by Douglas J. Crouse, Jackson Kelly PLLC. For more information on the author see here.

EPA Proposed Emission Standards for Hazardous Air Pollutants from Fossil Fuel-Fired Power Plants

On May 3, 2011, EPA published a proposed rule to establish national emission standards for hazardous air pollutants (NESHAP) from fossil fuel-fired electric utility steam generating units (EGUs).  The agency is receiving public comments on the proposed rule until July 5, 2011, and will likely release a final rule by November of this year. 

The primary justification for the proposed emission standards is EPA’s concern over mercury.  Fossil fuel-fired EGUs are currently the largest source of anthropogenic (man-made) mercury in the United States, and also contribute a large portion of other hazardous air pollutants (HAPs) of concern.  In December of 2000, EPA concluded a study which showed how mercury circulates in the environment once it is released into the air. Based on this 2000 study, EPA determined that bioaccumulation of mercury represented a continuing human health risk, especially to developing children, and placed EGUs on the list of source categories that can be subject to HAP regulations.  

EPA reversed course in 2005, however, and determined that it was neither appropriate nor necessary to regulate HAPs from fossil fuel-fired EGUs and removed them from the source category list.  The rationale was that the 2000 study lacked a proper foundation and that new information undermined the study’s findings.  Environmental groups, States, and Indian tribes successfully challenged EPA’s 2005 decision to remove EGUs from the source category list, and the D.C. Circuit Court vacated EPA’s 2005 de-listing decision. In 2008, additional lawsuits by environmental groups and public health organizations challenged EPA’s continued failure to promulgate standards for HAPs from fossil fuel-fired EGUs.  EPA settled this lawsuit by promising to propose emission standards for EGUs by March of 2011 and a notice of final rulemaking by November of the same year. 

The standards EPA has proposed for existing EGUs are Maximum Achievable Control Technology (MACT) standards, which are calculated by looking at the best performing 12 percent of all currently existing EGUs.  If EPA promulgates final emission standards in a few months, EGUs would have three years to come into compliance with the new standards. 

While EPA estimates that its proposed emission standards will reduce mercury emissions from EGUs by 79 percent in 2015 and significantly reduce various other hazardous air pollutants, these improvements do not come without a cost.  “EPA projects that approximately 9.9 GW of coal-fired generation (roughly 3 percent of all coal-fired capacity and 1% of total generation capacity in 2015) may be removed from operation by 2015.”  Additionally, it is estimated that these new emission standards will increase electricity prices in the continental U.S. by 3.7 percent when the rules take effect in 2015.  

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.