OnAir_July_2008 by benbenzhou


									                                                                                                                                              IN THIS ISSUE

                                                                                                                                              This issue of ENVIRON On Air features
                                                                                                                                              the latest news in air quality regulations.
                                                                                                                                              • EPA Releases Final Implementation
                                                                                                                                                Rule for PM2.5 New
NEWS FROM ENVIRON'S AIR QUALITY PRACTITIONERS                                                              JULY 2008                            Source Review
                                                                                                                                              • EPA Working on

EPA Releases Final Implementation Rule for PM2.5 New Source Review
                                                                                                                                                Revisions to the
                                                                                                                                                Boiler MACT and
                                                                                                                                                CISWI NSPS
                                              rules provide the requirements that state and   In its final rule, EPA addresses the issues
                                                                                                                                              • A New Green
                                              tribal plans need to meet to implement the      of PM2.5 precursor emissions, the major
                                                                                                                                                Exchange Opens on the NYMEX
                                              PM2.5 national ambient air quality standards    stationary source threshold for PM2.5,
                                              (NAAQS) established in 1997 – i.e., to          the significant emission rates for PM2.5        • California to Issue Global
                                              achieve compliance with the NAAQS in            and PM2.5 precursors, and condensable             Warming Plan
                                              those areas designated as non-attainment        PM2.5 emissions.
                                                                                                                                              • Department of Interior Makes
                                              for PM2.5 and to maintain compliance with
                                                                                              Precursor Emissions. EPA takes various            Threatened Species Finding for
                                              the NAAQS in those areas designated
                                                                                              approaches to regulating potential                Polar Bears Under the Endangered
                                              as attainment for PM2.5. Effective April 5,
                                                                                              precursors to PM2.5, which can include            Species Act
                                              2005, EPA designated 39 areas of the US
                                                                                              sulfur dioxide (SO2), nitrogen oxides
                                              that were not attaining the 1997 PM2.5                                                          • Senate Denies Vote on Global
                                                                                              (NO x), volatile organic compounds
                                              ambient air quality standard.                                                                     Warming Bill
                                                                                              (VOCs), and ammonia. EPA assumes
                                              The PM2.5 NSR rule amends the existing          SO2 and NOx are “presumed-in” as                • EPA Forced to Issue Climate
                                              NSR regulations. The NSR program is a           PM2.5 precursors, except that states can          Change Assessment
                                              preconstruction permitting program that         make a demonstration that NOx is not a
                                                                                                                                              • Court Refuses to Set Date for
                                              applies when a source is constructed or         precursor for that particular state. Further,
                                                                                                                                                “Endangerment Assessment” for
                                              modified, and includes the Prevention           EPA assumes VOCs and ammonia are
                                                                                                                                                Greenhouse Gases
                                              of Significant Deterioration (PSD), non-        “presumed-out” as PM2.5 precursors.
                                              attainment New Source Review (NA NSR),                                                          • Proposed Coal-Fired Power Plant
                                                                                              Major Stationary Source Threshold. EPA
                                              and minor NSR programs. PSD applies to                                                            Permit Invalidated
                                                                                              has retained the same major source
                                              a major source located in an area desig-                                                          by Georgia
                                                                                              threshold that it uses for other criteria
                                              nated as attainment or unclassifiable for
                                                                                              pollutants. The PSD major source threshold      • Court Court Strikes
                                              any criteria pollutant that is constructed
                                                                                              for PM2.5 and those pollutants identified as      Down Clean Air
                                              or undergoes a major modification. NA
                                                                                              a PM2.5 precursor is 100 tons per year for        Interstate Rule
                                              NSR applies to a major source located in
                                                                                              those source categories listed in 40 CFR
                                              an area designated as non-attainment for
                                                                                              51.166(b)(1)(i)(a) and 52.21(b)(1)(i)(a),
                                              any criteria pollutant that is constructed
On May 16, 2008, EPA finalized the New                                                        and 250 tons per year for all other source
                                              or undergoes a major modification. Minor
Source Review (NSR) implementation rule                                                       categories. The NA NSR major source
                                              NSR applies to the construction or modifi-
for fine particulates (PM2.5). The May 16th                                                   threshold is 100 tons per year for all
                                              cation of major or minor sources that are
final rule, at 73 FR 28321, supplements the                                                   source categories.
                                              not subject to PSD or NA NSR regardless
PM2.5 implementation rule EPA promulgated
                                              of the attainment status.                       Significant Emissions Rate. The significant
on April 25, 2007 at 72 FR 20586. These
                                                                                              emissions rate is defined as the rate above
ENVIRON ON AIR                                                                                                                                                                                   2

which a net emissions increase will trigger         EPA Working on Revisions                       and Budget (OMB) (see 73 FR 27820, May            MACT rules were vacated and remanded
major NSR permitting requirements. In                                                              14, 2008). According to EPA, it is currently      back to EPA for repromulgation.
its final rule, EPA defines the significant         to the Boiler MACT and                         targeting to issue the ICR survey form by the
                                                                                                                                                     EPA’s Office of Solid Waste (OSW) is
emissions rate as 10 tons per year for              CISWI NSPS                                     end of the summer to potentially affected
                                                                                                                                                     conducting extensive internal discussions,
direct emissions of PM2.5. The significant          Since the June 8, 2007 vacatur by the United   facilities. EPA will use the data collected to
                                                                                                                                                     with input from various interested parties,
emissions rate for PM2.5 precursors is 40           States Court of Appeals for the District of    establish the appropriate emission standards
                                                                                                                                                     regarding the definition of “solid waste.”
tons per year for SO2, and 40 tons per year         Columbia Circuit, EPA has been working on      under each of the regulations.
                                                                                                                                                     OSW will be promulgating a definition of
for NOx and VOCs where these pollutants             revisions to the Standards of Performance      According to EPA, the primary issue of            “solid waste” in conjunction with the Office
are identified as a PM2.5 precursor. In the         for New Stationary Sources and Emissions       contention is the definition of “solid waste”     of Air Quality Planning and Standards’
event ammonia is identified as a precursor,         Guidelines for Existing Sources: Commercial    as incorporated into EPA’s CISWI NSPS             (OAQPS’) repromulgation of the CISWI
the significant emissions rate will be deter-       and Industrial Solid Waste Incineration        (EPA issued amendments to the CISWI rule          NSPS and Boiler MACT rules. According to
mined by the state.                                 (CISWI) Units at 40 CFR 60 Subparts CCCC       on September 22, 2005 promulgating                EPA, the agency is in negotiations with the
Condensable PM2.5. In the final NSR rule,           and DDDD, and the National Emission            revised definitions for the terms “solid          various parties through the court and is close
EPA does not require that states address            Standards for Hazardous Air Pollutants         waste,” “commercial or industrial waste,”         to settlement of the case, including a final
condensable PM in establishing enforceable          (NESHAP) for Industrial, Commercial, and       and “commercial and industrial solid waste        schedule for addressing the remand.
emissions limits for PM2.5 until the test methods   Institutional Boilers and Process Heaters      incineration unit” [the Definitions Rule, 70 FR
are sufficiently reviewed and refined as            (ICIBPH), or “Boiler MACT,” at 40 CFR 63       55568]). The court determined, in its decision,
necessary. This transition period will end          Subpart DDDDD. Based on its review of the      that EPA improperly excluded certain “solid       A New Green Exchange
                                                    prior data collected for the Boiler MACT
January 1, 2011, unless EPA can address the
                                                    and CISWI NSPS, EPA determined that more
                                                                                                   waste incineration units” from the affected       Opens on the NYMEX
issues associated with the test methods, and                                                       facilities under the CISWI Definitions Rule.
                                                    current data would need to be collected                                                          The Green Exchange opened its doors
complete the required rulemaking steps earlier.                                                    Further, as a result of this determination,
                                                    and has drafted an Information Collection                                                        for business on the New York Merchantile
Following this rulemaking, EPA will require                                                        the court also determined that the Boiler
                                                    Request (ICR) survey form which is currently                                                     Exchange (NYMEX). The Green Exchange
that NSR permits include limits of condensable                                                     MACT rule could not survive as promulgated.
                                                    under review by the Office of Management                                                         offers futures trading based on emissions
PM2.5 emissions as appropriate.                                                                    Therefore, both the CISWI NSPS and Boiler
                                                                                                                                                     of greenhouse gases as well as sulfur
                                                                                                                                                     dioxide (SO2) and nitrogen oxide (NOx)
                                                                                                                                                     that will be regulated by EPA’s Clean Air
                                                                                                                                                     Interstate Rule (CAIR). The Exchange trades
                                                                                                                                                     greenhouse gas credits under the regulated
                                                                                                                                                     European Union Emissions Trading Scheme
                                                                                                                                                     (EUETS) and in the voluntary markets for
                                                                                                                                                     Verified Emission Reductions (VERs). In these
                                                                                                                                                     markets, the Green Exchange competes with
                                                                                                                                                     the European Climate Exchange (ECX) and
                                                                                                                                                     the Chicago Climate Exchange (CCX).

                                                                                                                                                     The Green Exchange trades in futures contracts
                                                                                                                                                     for seasonal and annual NOx allowances
                                                                                                                                                     under CAIR, and annual SO2 allowances
                                                                                                                                                     under EPA’s acid rain program, which are
                                                                                                                                                     also used for compliance under CAIR.
ENVIRON ON AIR                                                                                                                                                                              3

California to Issue Global                       ARB staff anticipate issuing the Proposed         future, the standard established by the ESA     But the Secretary took steps to prevent the
                                                 Scoping Plan in early October, based on           for designating a threatened species.           listing from being used by environmental
Warming Plan                                     continuing analysis and public input on the                                                       groups as a basis for challenging the
The California Air Resources Board (ARB)                                                         This finding was the result of a lawsuit filed
                                                 Draft Scoping Plan, with adoption of the                                                          permitting of power plants. According to
staff presented the “Climate Change Draft                                                        by the Center for Biological Diversity against
                                                 Final Scoping Plan by the end of the year.                                                        Secretary Kempthorne:
Scoping Plan” to the Board for review                                                            the US Fish and Wildlife Service to list the
                                                 ARB anticipates that the measures adopted
on June 26, 2008. The Draft Scoping                                                              polar bear as a threatened species (Center          Listing the polar bear as threatened can
                                                 by the Board in the Final Scoping Plan will
Plan contains the main strategies California                                                     for Biological Diversity v. Norton, US District     reduce avoidable losses of polar bears.
                                                 be developed over the next three years and
will use to reduce greenhouse gases. AB                                                          Court Northern district of California). The         But it should not open the door to
                                                 be in place by 2012.
32, the “Global Warming Solutions Act                                                            center claimed that the polar bear depends          use of the ESA to regulate greenhouse
of 2006,” targets reducing greenhouse                                                            on arctic sea ice for survival and its habitat      gas emissions from automobiles, power
gas emissions to 1990 levels by 2020, or         Department of Interior                          is melting due to global warming, and               plants, and other sources. That would be
                                                                                                 argued that the Secretary was to determine          a wholly inappropriate use of the ESA
a 30% reduction over the next 12 years.          Makes Threatened Species                        whether the petition presented substantial          law. The ESA is not the right tool to set
According to information on ARB’s website,
the Draft Scoping Plan proposed a cap-           Finding for Polar Bears                         information indicating the bear’s listing may       US climate policy.
and-trade program covering 85% of the            Under the Endangered                            be warranted. As a result of the delay in
                                                                                                 making its determination, the court forced
state’s emissions, and will be developed         Species Act                                     the Department of the Interior to
in conjunction with the Western Climate
                                                 The Department of the Interior designated the   make a final determination by
Initiative, which is comprised of seven states
                                                 polar bear as a threatened species under the    April 15, 2008.
and three Canadian provinces, to create a
                                                 Endangered Species Act (ESA). Secretary
regional carbon market.
                                                 of the Interior Dirk Kempthorne made the
Specific key elements of the Draft Scoping       announcement on May 14, 2008:
Plan are:
                                                   The listing is based on the best
• Expansion and strengthening of existing          available science, which shows
  energy efficiency programs and building          that loss of sea ice threatens
  and appliance standards.                         and will likely continue to
                                                   threaten polar bear
• Expansion of the Renewables Portfolio
                                                   habitat. This loss
  Standard to 33%.
                                                   of habitat puts
• Development of a California cap-and-             polar bears at risk
  trade program that links with other WCI          of becoming endan-
  Partner programs to create a regional            gered in the foreseeable
  market system (the capped sectors
  include electricity, industrial sources,
  transportation fuels (by 2020), and
  commercial and residential natural gas
  [by 2020]).
• Implementation of existing state laws and
  policies, including California’s clean car
  standards, goods movement measures,
  and the Low Carbon Fuel Standard.
• Targeted fees to fund the state’s long-term
  commitment to AB 32 administration.
ENVIRON ON AIR                                                                                                                                                                                  4

Senate Denies Vote on                             President Bush opposes mandatory limits          later than March 1, 2008, and submit a
                                                  on greenhouse gases, and threatened veto         Research Plan itself to Congress no later
Global Warming Bill                               of the bill if it were passed. Both presi-       than 90 days thereafter.
On June 6, 2008, by a vote of 48 to 36,           dential candidates Obama and McCain
the Senate defeated a motion to end debate                                                         The Assessment Report, separate from EPA’s
                                                  have reported that they will take action on
on the Lieberman-Warner “Climate Security                                                          long-awaited “endangerment assessment”
                                                  federal legislation if they were elected.
Act of 2008” and send the bill to a vote                                                           (see following article), is meant to provide
(the cloture procedure places a time limit                                                         a framework for Congress and government
on the consideration of a bill to overcome        EPA Forced to Issue Climate                      agencies in developing climate change
                                                                                                   policy. The May 2008 report concludes that
a filibuster). Under a cloture motion, a          Change Assessment                                greenhouse gases are very likely the single
positive vote by three-fifths of the Senate, or
                                                  The EPA issued its “Scientific Assessment of     largest cause of recent warming and that
60 votes, is required. This vote essentially
                                                  the Effects of Global Change on the United       it is likely (greater than 66% probability)
ends any chance that agreement on federal
                                                  States” on May 29, 2008, meeting its             that there has been a substantial human         in Massachusetts v. EPA. This Supreme
greenhouse gas legislation will occur in this
                                                  court-ordered deadline of May 31, 2008.          contribution to the surface temperature         Court case, decided on April 2, 2007,
session of Congress.
                                                  The deadline was set by the US District          increase in North America. In addition,         determined that carbon dioxide (CO2) was
The Lieberman-Warner bill would have              Court for the Northern District of California,   there is evidence that human activities have    an air pollutant, and that EPA has to make
required greenhouse gas emissions to be cut       which determined in an August 21, 2007           influenced extremes in temperature, the         a determination whether greenhouse gases
19% below 2005 levels by 2020 and 63%             court order, that the government had not         increase in sea surface temperatures in the     endanger public health or welfare (the
by 2050. According to Time magazine, a            met its obligation under the Global Change       hurricane formation regions, and recent         “endangerment assessment”). The Petition
significant issue facing this bill, and any       Research Act of 1990, which requires             hurricane activity.                             noted that the EPA Administrator publi-
federal greenhouse gas bill, is the potential     the periodic preparation of a Scientific                                                         cally set a firm deadline for making the
impact on energy costs to the US public. It       Assessment of global change “not less            The Assessment Report projects precipitation    endangerment determination by the end of
is reported that, while they no longer argue      frequently than every 4 years.” The court        over North America to be less frequent but      2007, has made an internal decision in
the science of global warming, a number of        ordered the government to produce the            more intense and accompanied by greater         favor of endangerment, and has forwarded
senators say that a cap on carbon emissions       Scientific Assessment by no later than May       extreme wave heights along the coasts,          the written determination on to the Office
would result in an unacceptable increase in       31, 2008. In addition, the court ordered         and that it is likely that hurricane rainfall   of Management and Budget (OMB), but
energy (gasoline and electricity) prices.         the government to publish a summary of           and wind speeds will increase in response       that the publication of the endangerment
                                                  a Research Plan in the Federal Register no       to human-caused warming. The Report also        determination is being withheld. The Petition
                                                                                                   assesses the effects of global change on US     requested that the court order EPA to issue its
                                                                                                   water resources, agriculture, land resources,   determination on endangerment within 60
                                                                                                   biodiversity, and human health, among           days, or by the end of June 2008.
                                                                                                   other things.
                                                                                                                                                   The DC Circuit Court of Appeals determined
                                                                                                                                                   that it shouldn’t immediately force the EPA’s
                                                                                                   Court Refuses to Set                            hand. According to the Associated Press,
                                                                                                   Date for “Endangerment                          Judge David Tatel stated that “the Supreme
                                                                                                                                                   Court did not give EPA a deadline and that
                                                                                                   Assessment” for                                 the issue is too complex and controversial to
                                                                                                   Greenhouse Gases                                be sorted out in only a year.”
                                                                                                   On April 1, 2008, a petition was filed with     Separately, EPA Administrator Stephen
                                                                                                   the US Court of Appeals for the District of     Johnson issued a letter dated March 27,
                                                                                                   Columbia Circuit by 17 states, the District     2008 stating that, before moving forward
                                                                                                   of Columbia, New York City, Baltimore, and      with any endangerment finding, it will issue
                                                                                                   13 environmental groups over EPA’s delay        an Advance Notice of Proposed Rulemaking
                                                                                                   in addressing the Supreme Court remand          (ANPR) soliciting public input and relevant
ENVIRON ON AIR                                                                                                                                                                           5

information regarding the implications of
                                                                                                                                                  IN TOUCH
this finding to the regulation of both mobile
and stationary sources. In addition, the
ANPR will raise potential issues in the New                                                                                                       This update was prepared by ENVIRON
Source Review (NSR) program, including                                                                                                            to apprise our clients of regulatory
greenhouse gas thresholds and whether                                                                                                             developments. It is not intended to
permitting authorities might need to define                                                                                                       constitute legal advice and should not be
best available control technologies. EPA’s                                                                                                        relied upon as such.
concern is that, if greenhouse gases were to                                                                                                      For more information contact:
become regulated under the NSR program,                                                                                                           Alan Shimada
the number of Clean Air Act permits could                                                                                                         +1 973.286.4263
increase significantly and the nature of the                                                                                                      ashimada@environcorp.com
sources requiring permits could expand to
include many smaller sources not previously                                                                                                       or your local ENVIRON Air Quality
regulated under the Clean Air Act.                                                                                                                practitioner.

Proposed Coal-Fired Power
Plant Permit Invalidated by
Georgia Court
Fulton County Superior Court Judge Thelma       EPD was not required to regulate CO2 under      The court, in its decision, vacated CAIR and
Wyatt Cummings Moore invalidated a              the Clean Air Act.                              said that EPA must reconsider which states
permit issued by the Georgia Department of                                                      are included in CAIR, and decide which
                                                The Superior Court decision is similar to the
Natural Resources for construction of a 1200                                                    date, 2015 or earlier, is the appropriate
                                                October 18, 2007 decision by the Kansas
megawatt (MW) coal-fired power plant. The                                                       date for states to “eliminate their significant
                                                Department of Health and the Environment
plant is being developed by Longleaf Energy                                                     contributions to downwind nonattainment.”
                                                to reject a permit for construction of two
Associates, a joint venture between Dynegy                                                      Further, the court determined that the trading
                                                proposed coal-fired power plants to be
Inc. and LS Power Group. The air permit was                                                     program under CAIR is unlawful.
                                                located near Holcomb, Kansas. The Longleaf
issued May 14, 2007 for the construction of     court decision is expected to be appealed.      Environmental groups and EPA criticized
two pulverized coal-fired boilers to be built                                                   the court’s decision. According to a New
in Hilton, Early County, Georgia. In making                                                     York Times article, Stephen Johnson, the
her finding, Judge Moore held that The          Court Strikes Down Clean                        EPA Administrator, was “extremely disap-
Georgia Environmental Protection Division
(EPD) should have regulated and established
                                                Air Interstate Rule                             pointed” in the court decision “because
                                                                                                it’s overturning one of the most significant
permit limits for carbon dioxide (CO2) as a     In a blow to EPA, the DC Circuit Court of
                                                                                                and health-protective rules in our nation’s
pollutant, citing the 2007 Massachusetts v.     Appeals struck down implementation of the
                                                                                                history.” Even industry groups were disap-
EPA Supreme Court decision.                     Clean Air Interstate Rule, also known as
                                                                                                pointed that the court threw out the entire
                                                CAIR, in a July 11, 2008 decision. In its
The Friends of the Chattahoochee Inc. and                                                       CAIR rule making for more uncertainty in
                                                decision, the court stated, “EPA’s approach
the Sierra Club challenged the Longleaf                                                         future regulations affecting power plants.
                                                … is fundamentally flawed … [and that] …
permit issued by EPD. Administrative Law                                                        On its CAIR website, EPA states that it is
                                                EPA must redo its analysis from the ground
Judge Stephanie M. Howells upheld the                                                           reviewing the court’s decision and evalu-
                                                up.” This decision follows the February 8,
permit previously in January 2008, following                                                    ating its impacts.
                                                2008 decision by the same court to vacate
an earlier August 2007 ruling that Georgia      EPA’s Clean Air Mercury Rule, also known        In the absence of CAIR, the NOx SIP Call
                                                as CAMR.                                        trading program will continue.

To top