State air regulators in the Northeast and elsewhere are raising concern over EPA's recent delay in issuing a revised ozone national ambient air quality standard (NAAQS) and may soon push the agency to fully implement the contested Bush EPA standard issued in 2008 rather than wait for EPA to issue and implement a new standard.
EPA has asked the U.S. Court of Appeals for the District of Columbia Circuit to grant it permission to extend the release date for the final revised standard -- which had been due this past summer -- until July 29, while litigation over the matter is held in abeyance. States supportive of a stricter standard had asked for a Dec. 31 deadline for a new standard, which would replace the Bush-era standard that was set at 75 parts per billion (ppb).
The Obama administration granted states' and activists' request to reconsider the standard and in January proposed to tighten the NAAQS to a level between 60 and 70 ppb, within the range recommended by its Clean Air Scientific Advisory Committee (CASAC). But EPA has since repeatedly delayed issuance of a final standard.
The Obama EPA is yet to issue final designations for which areas are in or out of attainment with the Bush ozone standard. Attainment designations determine deadlines for nonattainment states to craft state implementation plans (SIPs) outlining how they intend to cut pollution and meet the standard, with varying compliance dates based on the severity of a state's nonattainment. States may soon push EPA to quickly finalize those designations.
Without final designations in place, states are in limbo as they do not know the severity of their nonattainment or the compliance deadlines they may face under whatever designation EPA ultimately issues.
The Clean Air Act requires EPA to issue final designations within two years from the issuance of a new standard. The Bush administration's issuance of an ozone standard in March 2008 means that EPA should, under the air law, have issued final designations by March 2010. "However, EPA may extend that date by up to one year if EPA has insufficient information," according to the agency in its fall 2010 Unified Agenda of pending rules.
EPA notes that if the agency issues a new NAAQS as a result of its reconsideration of the Bush standard, "the requirement to designate areas for the replaced 2008 NAAQS would no longer apply." Nevertheless, the agency in the agenda says that it intends to issue final designations sometime in March.
EPA has also stalled on issuing implementing guidance for the 2008 standard, meaning that states are currently subject to the weaker ozone standard of 85 ppb issued in 1997. State officials say that the delay in issuing a revised standard is delaying health benefits of a stricter limit and creating regulatory uncertainty.
Pressure From States
States may push EPA to issue final designations so they know what ozone cuts they will need to make and can begin working on developing their SIPs to cut pollution and meet the standard.
One Northeast air official says the delay in issuing designations for a revised standard means "we would not only have a prolonged period of retaining an 85 ppb NAAQS, but its replacement would be in place a short time before it is replaced by a delayed replacement. Staying on this delayed timeline cheats states and industry of regulatory certainty."
The source says that some states are now planning to push EPA to pursue full implementation of the 2008 Bush standard to secure cuts in ozone levels. The source says, "despite our objections to the 2008 ozone NAAQS currently in abeyance, we now feel it would be much better [for] EPA to restart its timeline and move along with designations for a 75 ppb NAAQS rather than remain on a less protective 85ppb standard for an extended period of time."
EPA has not yet issued implementation guidance for its 2008 ozone NAAQS, and the process of states designating areas attainment or nonattainment for the standard is now due to be completed by March 12. This follows an extension of one year EPA granted because there was insufficient information to complete designations by March 12, 2010.
However, according to the agency's website, if EPA issues a new ozone standard before then, designations for the 2008 standard will no longer be necessary, and a new process for completing designations for the new standard on an accelerated schedule will apply instead. EPA also plans to issue implementation guidance concurrently with its forthcoming new ozone NAAQS, which would supersede any guidance for the 2008 standard.
Formalizing the implementation of EPA's 2008 ozone standard would give CASAC more time to prepare its next scheduled NAAQS review, the source argues. EPA is due to begin its next ozone NAAQS review with a proposal in June 2013, and a final standard in March 2014, according to the agency's website.
The source argues that support for such a stance is likely "pretty much unanimous in the Northeast," a region with major ozone pollution problems, much of them caused by upwind emissions in states to the west and south.
A Midwestern state regulator active within the National Association of Clean Air Agencies (NACAA), which includes air regulators from around the country, says that the idea of simply implementing the Bush 2008 standard pending any stricter NAAQS has more widespread support than just the Northeastern states.
The state officials also say that waiting for the issuance of a revised standard might do more harm than good, especially if the delay leads to a weakening of the standard compared to the proposed limit.
Potential For Pushback
With the GOP majority in the House likely to closely scrutinize EPA's upcoming rules, and many Republicans hostile to the tightened ozone standard and other air rules, any attempt by the agency to issue a stricter NAAQS could face push-back from Congress and attempts to block it, state officials say.
The Northeastern regulator says that states are still evaluating their options for calling on EPA to implement the Bush standard. One option would be a joint request to EPA with Mid-Atlantic regulators under the auspices of the Ozone Transport Commission (OTC), a body of state officials that has pushed EPA for stricter ozone standards and a broader range of control programs to limit ozone. "I suppose OTC could send a letter to EPA on the matter, but I don't see it happening immediately with all the uncertainties introduced from the previous election," the source says.
The situation is further complicated by the fact that many OTC states are parties to the consolidated litigation brought by environmentalists and industry against the 2008 ozone NAAQS. In that litigation, State of Mississippi, et al,, v. EPA, these states intervened to try and force a reconsideration and tightening of the NAAQS.
Ten of the OTC states were among a group of 14 states, plus New York City and the District of Columbia, which filed a motion with the D.C. Circuit Nov. 15 asking the court to impose a hard deadline of Dec. 31 for EPA to issue the NAAQS. The states asked the court to end abeyance in the litigation if EPA misses the deadline.
States and clean air activists say they are weighing their legal options in response to EPA's latest delay. A source with the American Lung Association (ALA) says that although ALA remains determined to obtain the most health-protective standard possible, "we are also concerned as always . . . that slippage is an issue."
On Dec. 17, the 14 states filed a reply to EPA's motion saying the agency needs until July 29 to issue a revised NAAQS. The states note that they had asked the court for a Dec. 31 deadline to issue the standard, but now say they need time to craft a response to EPA's motion, and ask the court to give it until Jan.10 to submit that reply, a request the court subsequently granted Dec. 20. -- Stuart Parker
Industry Filing Outlines Broad Challenges To EPA Cement Air Rule
Last Updated on Monday, 10 January 2011 16:05
The Portland Cement Association (PCA) in a new legal filing outlines a broad range of arguments it will raise in a lawsuit over EPA's strict maximum achievable control technology (MACT) and new source performance standards (NSPS) to cut air toxics and criteria pollutant emissions from the cement sector, expanding on narrower criticisms of the MACT it raised in a petition for EPA to reconsider the rule.
PCA is leading industry's opposition to EPA's Sept. 9 final rule establishing the combined MACT and NSPS. In comments on the proposed version of the rules, PCA listed several criticisms. The organization then filed a petition asking EPA to reconsider the rule Nov. 5, and the same day filed a lawsuit challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit.
In the petition for reconsideration, PCA focused largely on EPA's approach to setting MACT "floors," or minimum emissions standards. PCA said EPA failed to include any provisions on air toxics emissions from clinker storage piles in its proposal, even though these subsequently appeared in the final rule. PCA claims this deprived industry of the chance to comment on the clinker rules, in violation of the Administrative Procedures Act (APA).
PCA said the MACT floor calculations were inaccurate, and criticized provisions relating to startup, shutdown and malfunction events. PCA also said that a related proposed air rule for incinerators and to define solid waste "eviscerate the statistical underpinning" of the MACT by changing which plants would be regulated under the standard, undermining "the critical calculations" used to set the MACT, PCA said.
But in a Dec. 20 non-binding statement of issues filed in the cement MACT/NSPS litigation, PCA takes a broader swipe at EPA, reiterating many of the arguments in its petition while raising other concerns about the rule, including that EPA failed to account for natural variability in the chemical content of limestone -- the main raw material in cement. By not accounting for such variability, the MACT and NSPS standards are inaccurate and infeasible, PCA says.
In the statement of issues in the suit PCA v. EPA, the organization says that in briefing it will question "whether it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" for EPA to "fail to properly account for the variability in emissions from stationary sources regulated by the NSPS Rule; fail to rely on sufficient or reliable data to establish the regulations; and rely on an insufficient factual and legal basis to regulate modified facilities."
Further, PCA says its judicial challenge will examine an array of other issues, including EPA's potential APA violations in setting the rules. These include whether EPA violated the plain language of the air law; adopted an unreasonable interpretation of the law; failed to conduct reasoned decision-making; failed to subject parts of the rule to the required notice of and public comment; and failed to consider the full cost of its rules.
The PCA lawsuit is key because it is seen as the first major legal test for EPA's planned multipollutant approach to rules, issuing combined NSPS and MACT standards for a slew of industry sectors.
But a related multipollutant rulemaking for the utility sector has been split into two, an EPA spokeswoman says. The agency still intends to propose the MACT in March, but the proposed NSPS -- which EPA recently said would include greenhouse gas (GHG) limits to resolve states' and activists' lawsuits -- will not be out until July.
Environmentalists, meanwhile, have also filed a legal challenge to the cement NSPS in the case Downwinders at Risk, et al. v. EPA, saying that EPA erred by failing to include GHG limits in the rule.
Activists say EPA must include GHG limits in air standards now that GHGs are regulated under the Clean Air Act through the agency's first-time vehicle GHG rules and "tailoring" GHG permit rules. The petitioners in a Nov. 20 statement of issues say they will ask "whether EPA acted contrary to law or arbitrarily and capriciously by failing to promulgate emissions guidelines for greenhouse gas emissions from existing Portland cement plants" and by failing to require states to submit state implementation plans to implement such GHG standards.
Environmentalist petitioners including Sierra Club have also petitioned the court to overturn an "affirmative defense" provided in the cement NSPS that allows industry to exclude excess air emissions generated by malfunction events that meet EPA's "narrow" definition of an unavoidable malfunction. Activists oppose the provision of any malfunction exemption, especially as the same affirmative defense has now been incorporated into several other air rules, such as those reducing "residual risk" posed by air toxics in several industry sectors.
Environmentalists have also intervened on EPA's behalf in the PCA suit, defending the remaining aspects of the agency's stringent emissions limits. -- Stuart Parker