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 firstname.lastname@example.org 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.
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