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Clean Air Act: Current Awareness

This guide supports Dr. Preston McLane's class on the Clean Air Act.

Addressing Biogenic Carbon Dioxide Emissions from Stationary Sources

Nov. 20, 2014.  On Nov. 19, 2014, the EPA issued a memorandum, "Addressing Biogenic Carbon Dioxide Emissions from Stationary Sources," to the Regional Directors.  On the same day, the Office of Air and Radiation's submitted a request for an independent peer review by the Science Advisory Board (SAB) of a technical work product, "The Framework for Assessing Biogenic C02 Emissions from Stationary Sources:"

This report presents a methodological framework for assessing the extent to which the production, processing, and use of biogenic material at stationary sources results in a net atmospheric contribution of biogenic carbon dioxide (CO2) emissions. Biogenic CO2 emissions are defined as CO2 emissions related to the natural carbon cycle,1 as well as those resulting from the production, harvest, combustion, digestion, fermentation, decomposition, and processing of biologically based
materials.

According to Inside EPA

The agency also plans to soon propose a rule exempting waste- and sustainably-derived biomass from best available control technology requirements in stationary source GHG permits.

The agency's policy plans are based on a second draft of a biomass accounting framework EPA has also just released that lays out a series of formulas to determine whether carbon dioxide emissions from biomass combustion are completely carbon neutral, must be fully counted or are somewhere in between.

Industry and labor groups argue that biomass combustion should be exempt from regulatory requirements because it is carbon neutral as the GHGs are absorbed by forest regrowth. Environmentalists, however, say some materials burned for energy -- such as whole trees -- are worse for the climate than burning coal because of a dramatic immediate release of GHGs that take decades to resequester.

Source:  "EPA Backs Biomass As ESPS Compliance Option, Waives GHG Permit Mandate" (Inside EPA, Nov. 19, 2014).

NASA 2012 Alaska Methane Study

Nov. 14, 2014.  From May to September 2012, NASA's Carbon Arctic Reservoirs Vulnerability Experiment (CARVE) flew more than 30 flights to measure methane emissions.  Their findings:

Alaska emitted 2.1 ± 0.5 Tg CH4 during the 2012 growing season, an unexceptional amount despite widespread permafrost thaw and other evidence of climate change in the region...Emissions from boreal regions were notably larger than from North Slope tundra. To our knowledge, this is the first regional study of methane emissions from Arctic and boreal regions over a growing season. Our estimates reinforce and refine global models, and they provide an important baseline against which to measure future changes associated with climate change."

R. Y.- W. Chang,et al. Methane emissions from Alaska in 2012 from CARVE airborne observations. Proceedings of the National Academy of Sciences (2014); DOI:10.1073/ pnas.1412953111.

Region 4: SIP Submissions for 2008 Lead, 2008 Ozone & 2010 NO2 NAAQS

EPA is proposing to approve submissions from Region 4 states for inclusion into each state's infrastructure SIP relating to prevention of significant deterioration (PSD) requirements for the 2008 Lead, 2008 Ozone, and 2010 Nitrogen Dioxide (NO2) NAAQS..  The Proposed Rule will be published in the Nov. 13, 2014, Federal Register and is available here at federalregister.gov before then.

Florida specific submission for Lead and NO2: Florida's authority to regulate new and modified sources "to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas" is found in FAC § 62-210.200 (Stationary Sources-General Requirements - Definitions) and FAC § 62-212.400 (Stationary Sources - Preconstruction Review - Prevention of Significant Deterioration).  According to the Proposed Rule, Florida's submission to EPA demonstrated:

that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead and 2010 NO2 NAAQS...

For this reason, EPA (1) made a preliminary determination that Florida's SIP and practices were adequate and complied with the pertinent PSD Elements and (2) proposed approval of Florida's infrastructure SIP submissions for those Elements.

Comments for Docket ID No. EPA-R04-OAR-2014-0610 may be made at regulations.gov for 30 days after publication in the Federal Register (until Dec. 15, 2014, at 11:59PM).

Nov. 14, 2014.  Documentation for Florida may be found at regulations.gov:  

Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties

Nov. 12, 2014. On November 6, 2014, EPA published a Proposed Rule and a Direct Final Rule revising the scope of EPA's Consolidated Rules of Practice governing the administrative assessment of civil penalties to encompass the assessment of civil penalties under the air pollution control provisions of the Act to Prevent Pollution from Ships.  The EPA has not previously established adjudicatory procedures for the assessment of civil penalties under that statute.

EPA filed the proposed and direct final rules at the same time because it believed the rule was noncontroversial.  Comments may be submitted to Docket EPA-HQ-OECA-2014-0551 at regulations.gov until December 8, 2014.  If adverse comments are not received, the rule will be effective on January 5, 2015 without further notice.

Hybrid Federal-State Clean Air Suit

Sierra Club has sent a 60 day Notice of Intent to Sue under the CAA act to AEP Generation Resources, Inc., Columbus, OH, claiming violations of an emission standard and limitation contained in Ohio's SIP under the CAA.  This is a "hybrid" action that may avoid the problems faced by state-level nuisance claims.  

CAA allows citizen suits to redress violations of an "emission standard or limitation," including "any other standard, limitation, or schedule established under any permit issued pursuant to subchapter V of this chapter or under any applicable State implementation plan approved by the Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations." 42 USC s. 7604(a)(1) and (f)(4).

The Ohio SIP (OAC s. 3745-15-07), approved by EPA in 1984, includes a public nuisance prohibition:

3745-15-07 Air pollution nuisances prohibited.

(A) Except as provided in paragraph (B) of this rule, the emission or escape into the open air from any source or sources whatsoever, of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, odors, or any other substances or combinations of substances, in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property, is hereby found and declared to be a public nuisance. It shall be unlawful for any person to cause, permit or maintain any such public nuisance.

(B) Those sources of odors not subject to regulation under Chapter 3745-17, 3745-18, 3745-21 or 3745-31 of the Administrative Code shall not be subject to this rule.

Many SIPs have such provisions.

The Sierra Club alleges that AEP is violating the 2010 NAAQS for sulfur dioxide and that the violations constitute a public nuisance.  The manner is which the suit is structured may prevent the triggering of CAA preemption claims.

Sierra Club v. McCarthy Consent Decree

The Sierra Club sued Gina McCarthy, EPA Administrator, for failure to act on several Texas SIP submissions for the Dallas/Ft. Worth nonattainment area to address the 1997 8-hour ozone NAAQS within one year of the data the submissions were deemed complete by operation of law.  The SIP submissions included "a demonstration of attainment, reasonably available control technology ("RACT") requirements for volatile organic compounds ("VOCs") and nitrogen oxides ("NOx"), and provisions for further progress ("RFP") toward attainment."  Plaintiff also alleged that McCarthy failed to determine whether the Dallas/Ft. Worth area attained the 1997 8-hour ozone NAAQS by the June 15, 2013, attainment date and to reclassify the area accordingly.

On October 29, 2014, EPA filed a Notice of Proposed Consent Decree, with request for public comment.  Comments may be submitted via the EPA docket (EPA-HQ-OGC-2014-0815) at regulations.gov.

EPA agreed to sign one or more notices of final rulemaking to approve or disapprove, in whole or in part, the Texas SIP submissions for the Dallas/Ft. Worth 1997 8-hour ozone attainment area, including:

EPA Exceeded Authority When Extending Deadlines for Implementing Regulations Governing Ozone Emissions

Cross-State Air Pollution Rule Deadlines Delayed

Nov. 24, 2014.  Following the U.S. Supreme Court's decision in EME Homer City Generation, L.P. v. EPA, the EPA requested the U.S. Court of Appeals for the District of Columbia Circuit to grant its motion to lift the court's earlier stay of the Cross-State Air Pollution Rule (CSAPR) and delay (toll) its deadlines by three years. The court granted the motion on Oct. 23, 2014 (see order below).  According to the EPA's Interim Final Rule with Request for Comment, "Rulemaking to Amend Dates in Federal Implementation Plans Addressing Interstate Transport of Ozone and Fine Particulate Matter," EPA Docket EPA-HQ-OAR-2009-0491, signed by the Administrator on Nov. 21, 2014:

 With these ministerial amendments, the CFR text will correctly indicate that CSAPR’s Phase 1 emissions budgets apply in 2015 and 2016 and that CSAPR’s Phase 2 emissions budgets and assurance provisions apply in 2017 and beyond. The ministerial amendments similarly correct dates in the CFR text related to specific activities required or permitted under CSAPR by regulated sources, the EPA, and states, as well as dates related to the sunsetting of the Clean Air Interstate Rule (CAIR) upon its replacement by CSAPR. The amendments are necessary to clarify the timing of requirements and elections under CSAPR as shown in the CFR text so that compliance can begin in an orderly manner on January 1, 2015, consistent with the Court’s order. The EPA is also taking comment on the amendments being made in this interim final rule and will consider whether to retain these revisions as promulgated or whether further revisions are necessary to make the CSAPR compliance deadlines consistent with the Court’s order. 

On the same day Administrator McCarthy signed a Final Rule, Availability of Data on Allocations of Cross-State Air Pollution Rule Allowances to Existing Electricity Generating Units, EPA Docket EPA-HQ-OAR-2009-0491, giving notice of allocations of emission allowances to certain electricity generating units (EGUs) that comenced commercial operation before 2010 for compliance with the CSAPR.  EPA has provided a spreadsheet that contains default allocations of allowances under each of the four CSAPR trading programs for individual EGUs for each compliance year from 2015 through 2020. The spreadsheet also contains the data used to compute the allocations and describes how the computations are performed. The EPA is not requesting comment on the allocations, underlying data, or computation methodology. A portion of Florida's data looks like this:

Sierra Club v. McCarthy

The Sierra Club and Wildearth Guardians filed a CAA citizen suit in the Northern District of California on November 18, 2014, against Gina McCarthy, Administrator of the EPA, seeking to compel the EPA to

"make findings of failure to submit under 42 U.S.C. § 7410(k)(1)(B) for Good Neighbor provisions of State Implementation Plan (“SIP”), 42 U.S.C. § 7410(a)(2)(D)(i)(I), to redress interstate transport of ozone pollution for the 2008 ozone National Ambient Air Quality Standard."  

The states which have not submitted their 2008 NAAQs are Arkansas, California, Connecticut, Georgia, Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, Missouri, New Hampshire, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Virginia, Washington, and West Virginia.

Plaintiffs sought (a) a declaration that the Administrator is in violation of the Clean Air Act with regard to her failure to perform the mandatory duties; (2) issuance of a mandatory injunction requiring the Administrator to perform her mandatory duties by certain dates; (3) retention of jurisdiction by the court; and costs, including attorneys’ and experts’ fees;

Waste Not: Common Sense Ways to Reduce Methane Pollution from the Oil and Natural Gas Industry

Nov. 21, 2014. The Natural Resources Defense Council, Clean Air Task Force, Earthjustice, Sierra Club and Environmental Defense Fund have released a summary of their report, Waste Not: Common Sense Ways to Reduce Methane Pollution from the Oil and Natural Gas Industry, and a Technical Appendix.  The Report itself, which recommends that the EPA issue direct methane standards in new source performance standards (NSPS) will be available in December from the CATF here.

Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units

Nov. 20, 2014.  On Nov. 13, 2014, the EPA published a Notice in support of its proposed rule, "Carbon Pollution Emission Guidelines for Existing Stattionary Sources: Electric Utility Generating Units (79 FR 34830, June 18, 2014) and its supplemental proposal, "Carbon Pollution Emission Guidelines: Existing Stationary Sources in Indian Country and U.S. Territories; Multi-jurisdictional Partnerships" (79 FR 65482, Nov. 4, 2014).  

Both EPA proposed rules sought to establish emission rate-based CO2 goals.  EPA incorporated "practical and affordable strategies that states and utilities are already using to lower carbon pollution from the power sector into "building blocks" that comprise the best system of emission reduction (BSER).  Each state, area of Indian country, and U.S. territory goal is unique, reflecting the area's fuel mix, electricity market, and other factors.  

A Technical Support Document (TSD), "Projecting EGU CO2 Emission Performance in State Plans" (June 2014) demonstrated one potential way to translate the rate-based goal to a mass-based equivalent (total tons of CO2 per year from affected sources). Because states subsequently sought additional information on calculating a mass-based equivalent metric, EPA published the November 13 Notice to provide additional detail.  The Notice includes two additional possible methods of calculating mass-based equivalent metrics. EPA also released a second TSD, "Translation of the Clean Power Plan Emission Rate-Based CO2 Goals to Mass-Based Equivalents" (November 2014).

President's State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience: Recommendations to the President (November 2014)

Nov. 18, 2014.  The State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience has released its recommendations to President.

The Task Force’s recommendations are the culmination of a year of work to solicit input from across State, local, Tribal, and territorial governments, trade associations, academic organizations, civil society, and various other stakeholders and translate their first-hand experiences into action items for the Federal Government to support climate-ready communities. The recommendations offer guidance on how the Federal Government should modernize programs and policies to incorporate climate change, incentivize and remove barriers to community resilience, and provide useful, actionable information and tools. The Task Force organized its report across seven cross-cutting themes: building resilient communities; improving resilience in the Nation’s infrastructure; ensuring resilience of natural resources; preserving human health and supporting resilient populations; supporting climate-smart hazard mitigation and disaster preparedness and recovery; understanding and acting on the economics of resilience; and building capacity.

Source:  Fact Sheet: Recommendations of the President’s State, Local and Tribal Leaders Task Force on Climate Preparedness and Resilience and New Executive Actions (November 17, 2014).

EU Leaders Agree on GHG Reduction Target

Nov. 18, 2014.  The EU has set a binding target to reduce EU domestic greenhouse gas emissions by at least 40% below the 1990 level by 2030.

Climate Change Conference - Lima, Peru - December 2014

Nov. 18, 2014.  The UN Framework Convention on Climate Change will meet in Lima, Peru from December 1-12, 2014.  The meeting documents may be found here.

Integrated Review Plan for the Primary National Ambient Air Quality Standard for Sulfur Dioxide

On Nov. 10, 2014, the EPA announced release of the final document of its Integrated Review Plan for the Primary National Ambient Air Quality Standard for Sulfur Dioxide (see Notice: 79 FR 66721).  The IRP contains EPA's plans for review of the air quality criteria for health for sulfur oxides and the primary national ambient air quality standard (NAAQS) for sulfur dioxide (SO2), which provide for the protection of public health from exposure to sulfur oxides in ambient air.  Additional information concerning Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standards can be found on the EPA website.  The IRP includes a schedule for the entire review:

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