On November 16, 2015, the USEPA proposed an update to its Cross-State Air Pollution Rule (CSAPR) ozone season requirements in a pre-publication letter signed by USEPA Administrator Gina McCarthy. (http://www2.epa.gov/airmarkets/proposed-cross-state-air-pollution-update-rule) CSAPR was originally promulgated on July 6, 2011 to address interstate transportation of ozone precursors under the 1997 ozone NAAQS, as well as fine particulate matter (PM2.5) under the 2006 PM2.5 NAAQS. The USEPA proposes to update this to cover the 2008 ozone NAAQS. The proposed changes, scheduled to go into effect in 2017, are intended to reduce summertime emissions of ozone precursor nitrogen oxides (NOx) from power plants in 23 states that impact the health of millions downwind. The proposed NOx emission reductions would help downwind states to meet the 2008 ozone ambient concentration standard of 75 ppb.

Air pollution, of course, travels and knows no state or national boundaries. The Clean Air Act (CAA) contains a “good neighbor” provision (Section 110(a)(2)(D)(i)(I)), that requires states to address impacts of air emissions from their sources on downwind states’ ability to meet and maintain air quality standards. This requires a state that contributes “significantly” to adverse impacts in a downwind state to submit a State Implementation Plan (SIP) revision to reduce these impacts. Otherwise, it will be subject to a Federal Implementation Plan (FIP) imposed on it by the agency to address CSAPR NOx impacts. In this proposal, the USEPA alleges such adverse impacts from 23 states and proposes NOx budgets for each to reduce impacts. The 23 states include all states east of the Mississippi River except the New England states, South Carolina, Georgia and Florida, and seven states west of the river – Iowa, Missouri, Arkansas, Louisiana, Kansas, Oklahoma, and Texas.

The NOx budgets discussed are updates to meet more rigorous standards of existing CSAPR NOx ozone-season (summer) emission budgets for electricity generating units (EGUs). These revised budgets would be implemented as the CSAPR NOx ozone-season allowance trading program. For one state, Kansas, this would represent a new trading program. The USEPA is proposing implementation of the new allowable NOx budgets starting with the 2017 ozone season.

On June 30, 2015, the USEPA issued a final notice determining that a number of states had failed to submit “good neighbor” SIPs for the 2008 ozone standard. The findings set a 2-year deadline to either approve a revised SIP for each noticed state or impose a federal plan to meet the “good neighbor” requirement. This will undoubtedly result in more stringent regulations on fuel combustion in many different circumstances.

CCES has the experts to help your company assess its activities and determine an emissions inventory. We can provide the technical portion of expertise to determine compliance with many state and federal air pollution rules. And we can provide technical strategies to reduce emissions and maintain compliance in the most economical manner possible. Contact us today at 914-584-6720 or at karell@CCESworld.com.

On October 1, 2015, the USEPA issued tighter the national ambient air quality standard (NAAQS) for smog, limiting ground-level ozone, the main indicator of smog, to 70 ppb from 75 ppb. This represents both the new primary (human health) and secondary (trees, ecosystems) standards. This is based on new scientific research on the effects of smog. The Clean Air Act requires that the USEPA review NAAQS standards every 5 years and adjust any if research indicates that it is too or not stringent enough to protect public health. The agency says the updated ozone NAAQS will reduce public exposure to smog, a cocophony of thousands of compounds, many of them toxic, and estimates that the public health benefits of these updated standards will be $2.9 to $5.9 billion annually in 2025 in avoided illnesses and deaths and added productivity, outweighing the estimated annual costs of $1.4 billion. “It is also notable that the Clean Air Act is one of the most life-saving pieces of legislation ever adopted by any country in history.” This was not quoted from an environmental group manifesto, but from Forbes Magazine!

The USEPA received criticism of the new standards from both sides. The USEPA entertained lowering the standard to as low as 60 ppb and, therefore, was criticized by some environmental groups for not going further than 70 ppm. Meanwhile organizations such as the National Association of Manufacturers issued a statement calling the new standard “overly burdensome, costly and misguided.”

While average ozone levels in the country have fallen 33%, according to the USEPA from when the Clean Air Act was formally administered until recently, many regions are still out of attainment with the old standard. A list of current non-attainment areas may be found here: http://www3.epa.gov/airquality/greenbk/hnc.html. Now that the standard has been lowered, some areas that worked hard to reach attainment may become out of attainment again. Depending on the degree of nonattainment, states will have until between 2020 and 2037 to revise and enforce regulations to meet the new standards.

Smog levels are influenced by emissions of volatile organic compounds (VOCs) and nitrogen oxides (NOx), by product of combustion. These and other compounds enter into chemical reactions in the atmosphere catalyzed by sunlight and heat to form many compounds, some of which are harmful. Ozone is an indicator to measure smog levels. Thus, smog is highest in the summer and in sunnier areas of the country.

The USEPA will work with affected states and regions to modify its rules to tighten emission standards of VOCs and NOx. In many cases, however, smog components waft in from upwind sources of the compounds. The USEPA may, therefore, promote regional solutions.

CCES can help you estimate your VOC and NOx and other emissions and perform the technical work needed to evaluate your compliance status vis-à-vis current ozone and other federal and state air regulations. Plus, we can provide cost-effective strategies to comply or just to lower your emissions. Contact us today at 914-584-6720 or at karell@CCESworld.com.

The U.S. Supreme Court ruled on June 29, 2015 that the USEPA acted unreasonably when it determined that it was appropriate and necessary to regulate mercury emissions from coal-fired power plants without including a cost analysis. The hazardous air pollutant section of the Clean Air Act (Section 112) states that the agency must first conclude that it is appropriate to regulate a hazardous compound, then propose, post, and promulgate the rule. The Court ruled that the agency failed to consider the cost of the regulation during that initial assessment of whether regulation of mercury was appropriate. The USEPA argued that it could not do an effective cost assessment early in the process until it determined at the required level of mercury emission reduction.

The Supreme Court’s decision does not invalidate the rule, but merely remands it back to the U.S. Court of Appeals, which can either vacate the rule or leave it in place while the USEPA provides further justification of its appropriateness. Absent in the Supreme Court ruling is any requirement on how it should consider costs in the future. The Court concluded that it is up to the Agency to decide how to account for cost.

As legal commentators have stated, if the mercury rule is vacated, it may have the ironic effect of helping the USEPA defend its forthcoming GHG rules for existing power plants, as one legal objection is that the USEPA lacks authority because it already regulates mercury emissions.

Another issue of concern in the Supreme Court ruling is the cost analysis performed by the USEPA when the rule’s parameters were finalized. The USEPA stated that the cost for compliance for would be several billion dollars per year, while the benefits would be in the millions per year range. But this was direct benefits due to decreased mercury emissions. If one considers additional secondary benefits (the same technology reduces other hazardous and non-hazardous air pollutants, such as fine PM, reducing other public health impacts, such as asthma), then the benefits are much greater, and exceed the cost. The Court noted, but did not rule on whether the Agency must look only at direct benefits for the pollutant(s) being regulated or can look at additional benefits, too.

It appears that in the near future, at least, the USEPA in performing its “appropriate and necessary” analysis before proposing a regulation for a hazardous air pollutant will need to determine probable emission limits necessary to at least minimally protect public health, and perform a cost-analysis on that basis.

According to legal commentators, this is among several decisions that appear to contradict each other (for example, a different court ruled that OSHA did not need to perform a cost-benefit analysis to promulgate its worker protection rules). So it is likely that this issue will be discussed in courts in the future.

Please note that this is not intended to be a legal analysis of the Supreme Court ruling. Please speak to a legal professional for an in-depth evaluation. This article is written for the reader’s general knowledge. CCES has the expertise to help your company assess its hazardous air pollutants and recommend the most cost-effective technical strategies to reduce emissions. Contact us today at 914-584-6720 or at karell@CCESworld.com.

On June 12, 2015, the USEPA published its final regulatory action requiring 36 states to remove from their State Implementation Plans (SIPs) exemptions from emission limits during startups, shutdowns and malfunctions (SSM). See:

https://www.federalregister.gov/articles/2015/06/12/2015-12905/state-implementation-plans-response-to-petition-for-rulemaking-restatement-and-update-of-epas-ssm

This action requires 17 states to remove automatic exemption from emission limits in rules (affirmative defenses) because of SSM from their SIPs. This change will likely impact the operating procedures of many facilities that have automatic SSM exemptions included in their air permits and increase their compliance liability.

The USEPA first proposed this action in 2013 as a result of a Sierra Club petition. The USEPA revised its original proposal in 2014 after the D.C. Circuit Court held that an affirmative defense against civil penalties for toxic air emissions by Portland cement manufacturers, even in the event of an unavoidable malfunction, cannot be made.

In its discussion of this final action, the USEPA stated that while the agency was now prohibiting automatic SSM exemptions and affirmative defenses, it will allow discretion by air agency personnel exercised on a case-by-case basis. It encourages alternative emission limits or mandatory work practices to be required specifically for SSM events.

Affected states must submit their SIP revisions to the USEPA for approval by Nov. 22, 2016.

In the meantime, to properly prepare for implementation of this change affected facilities (those currently with SSM exemptions) should research and determine alternative emission limits that it can meet or work practices that it can implement during SSM events to provide to the applicable air agency when elimination of automatic SSM exemptions and affirmative defenses goes into effect, and the air permit must be re-examined and revised. It is likely that states will require such information during a future renewal or modification of an air permit. It is better for a facility to be “ahead of the game”, and provide proposed changes with rationale to the agency, who may have little basis to make a decision.

CCES has the experts to help you establish workable alternative emission limits and work practices during SSM events, and help you modify your permits – under your terms – and negotiate with your regulatory agency. Our Air Permit experts have much experience in industrial emissions all over the country. Contact us today at 914-584-6720 or at karell@CCESworld.com.

While the USEPA spends a lot of time researching and writing rules that it has promulgated, another area of importance is enforcing these rules – to ensure they are fairly and evenly complied with. Besides the “stick” of fines, potential imprisonment, and bad publicity, the USEPA also uses the “carrot” of encouraging companies to comply by establishing a formal policy to waive the punitive portion of any penalties that would otherwise be assessed for violations if they are discovered independently by the facility, voluntarily disclosed to the USEPA, and promptly corrected. The USEPA’s “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” has been around since 2000 (modified in 2008) and been used successfully by companies since with compliance self-auditing programs, giving many a “clean slate.”

In 2012, during a time of budget cuts and reduced staff, the USEPA signaled that it may reduce involvement or even terminate the Audit Policy program.

However, on June 10, 2015, the USEPA held a webinar to confirm its strong support for the concept of self-auditing and announced changes to its Audit Policy and Small Business Compliance Policy to meet the same goals, while allowing the Agency to reduce effort spent. (http://www2.epa.gov/compliance/epas-audit-policy) The USEPA has made the process electronic, creating an “eDisclosure Portal” to more efficiently collect information needed to determine whether a disclosure qualifies for the Audit Policy. It was designed to make the process close to self-executing. The trade-off for this efficiency increase is less flexibility to addressing unique individual circumstances.

For example, the Portal will track initial discovery, disclosure, compliance correction and certification dates, and automatically notify the submitter whether a deadline is missed (Audit Policy is non-applicable). The system is supposed to grant up to 30 additional days to complete compliance corrections above the normal 60 days. The applicant can request additional time to comply, but the USEPA will not rule on such a request until it reviews the entire request. Therefore, facilities taking added time to achieve compliance may find their extension request not granted and get no benefits under the Audit Policy.

Another potential problem with the new eDisclosure system for the user is that even if the system indicates that a facility meets all of the criteria to qualify for the Audit Policy program, such a final determination is only made by the USEPA after it reviews information inputted, and it has the right to contradict any statement from the system.

The USEPA does expect that the new eDisclosure system will ultimately benefit disclosing facilities, reducing their time and costs if they fully understand how to use the new system, collect and disclose all needed information fully, and meet all deadlines.

The eDisclosure system is expected to be launched in fall 2015. The new system may provide less certainty and less flexibility to applicants than current procedures, but will reduce time and costs to submit to the Agency necessary data, providing incentive to continue to use the Audit Policy to quickly disclose and correct violations and be rewarded for doing so.

CCES has the Air Quality experts to help your facilities determine potential violations of federal and state Clean Air Act regulations early in the process, help you correct them in a cost-effective manner, and initiate monitoring procedures to allow you to monitor your operations effectively. Contact us today at 914-584-6720 or at karell@CCESworld.com.

On May 7, 2015, the USEPA published a direct final rule in the Federal Register (www.federalregister.gov/articles/2015/05/07/2015-10628), allowing for the annulling or rescission of certain Prevention of Significant Deterioration (PSD) permits under the Clean Air Act. This step was taken in response to the US Supreme Court’s decision last year in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014).

In this decision, the Supreme Court struck down part of the USEPA’s “Tailoring Rule” which mandated that new or modified stationary sources emitting more than a certain threshold quantity of greenhouse gases (GHGs) annually obtain PSD permits, even if they do not emit any other PSD-regulated pollutants at levels that would otherwise trigger the requirement for a PSD permit and compliance without the Tailoring Rule.

The Supreme Court last year ruled against this rewriting of the PSD rule, stating that the USEPA cannot set its own thresholds for GHGs that depart from the thresholds already found in the Clean Air Act, which was approved by Congress. However, the Supreme Court acknowledged that the agency can regulate GHGs, which since the last Clean Air Act amendments has been ruled a pollutant that must be regulated by the Act. The court ruled that under PSD the USEPA can use the rule to limit GHG emissions on “anyway” sources, those that would be subjected to the PSD regulation anyway because they emit one or more traditional PSD pollutants at levels above its/their statutory threshold(s). It just cannot trigger enforcement of the regulation on pollutants which standards were not set in the Clean Air Act approved by Congress.

The USEPA was ordered to amend the changes in PSD due to the “Tailoring Rule” accordingly, and with this publication it has fulfilled this obligation. This direct final rule amends the PSD regulations to not allow the requirement of PSD permits for sources subject to the rule only because of GHG emissions and to begin the rescission process for PSD permits already issued to the sources that had been required to obtain such permits only because of their GHG emissions.

Please note that the new rule itself does not actually rescind any permit issued under these pretenses. It provides only the authority to do so for the issuing entity. PSD is regulated (and permits issued by), in some cases, a state or local program (those states which have PSD enforcement authority delegated by the USEPA) or the USEPA (for the remaining states in which the USEPA itself runs the PSD permitting program). Therefore, a source that wants its PSD permit that had been issued under these circumstances rescinded will need to request this of the agency that issued the PSD permit. In doing so, the source must demonstrate that it did not at the time of application nor still does not qualify as an “anyway” source. While this covers a small number of sources nationwide, it does remove all PSD requirements from them, a welcome relief.

One of the complaints that led to the court cases was the concern that by requiring PSD permits for sources solely on their GHG emissions and because sources in general emit GHGs in much greater quantities than they do pollutants commonly regulated by the Clean Air Act, applying the amended statutory threshold for GHGs could have required the USEPA to issue PSD permits to hundreds of thousands, perhaps millions of sources nationwide that otherwise would not have to go through the trouble of obtaining PSD permits and requiring their enforcement, an expensive proposition. The USEPA did amend PSD to raise the statutory threshold of GHGs to a much higher level. However, there was concern of a large number of facilities and smaller facilities having to address and comply with PSD.

The USEPA published this amendment of PSD as a direct final rule without seeking public comment because the USEPA was responding to a US Supreme Court ruling. If the USEPA does receive adverse comments, however, it could withdraw this direct rule and address the comments in a subsequent new final rule. The due date for submitting any comments is June 8, 2015.

CCES has the experts to evaluate your facility’s greenhouse gas emissions using approved methods and can assess other pollutant emission rates to determine your applicability to PSD and other federal and state air pollution regulations. We can help you strategize to determine cost-effective ways to comply with any regulations that must be achieved. Contact us today at 914-584-6720 or at karell@CCESworld.com.