Regulatory Update

Posted on February 5, 2016 by Stephanie Bergeron Perdue

Back when I initially started this blogging exercise for a 1/11 posting, I had a clever title in mind: WIS 2016?  (aka What’s in Store 2016?)  But now it’s February.  And I even missed the filing deadline for a Groundhog’s Day-related theme.  BTW, for those who may NOT have heard, Punxsutawney Phil and Staten Island Chuck failed to see their shadows.  Early spring.  Ah, perhaps I should go with a thawing theme as in when will there be any definitive outcomes for some of our favorite environmental issues?  And I commit to use as many abbreviations and acronyms as possible. 

1)      CPP – No foreseeable thaw.

If I could use a symbol, kind of like the artist formerly known as Prince, I would.  What’s that?  Surely you jest.  CPP is THE Clean Power Plan.  At any rate, way back in January 2016, the D.C. Circuit denied the various Motions to Stay this controversial rule.  And then there was the Stay Application filed by the 26-state coalition, led by West Virginia, and industry types in the SCOTUS.  DOJ/EPA has until 2/4 to respond; the States are expected to file a reply 2/5.  What’s at stake?  Regulating emissions from existing power plants under FCAA 111(d) in a, well, unprecedented manner.  Yes, Texas is one of the states challenging the rule.  Let’s momentarily set aside the fact that the rule deals with power plants and focus solely on the structure of the regulation – hence my use of the term unprecedented.

2)      NAAQS (pronounced naks), more specifically ozone – No foreseeable thaw.

Yes, the October 2015 EPA regulation was also challenged by multiple groups and states, including Texas/TCEQ which filed its Petition for Review on 12/23/2015.  The rule proposal ranged from 65 ppb to 70 ppb; 70 ppb was the final number which lowers the standard 5 ppb from the last revision in 2008.  Statements of Issues for the case are due 2/4/2016. State designations for attainment/NA are due October 2016.  The attainment deadlines are from 2020 to 2037, depending on the classification.  What will you be doing on Groundhog’s Day 2037??

3)      WOTUS (pronounced wo-tus) – Some thaw, mostly muddying the water.  (Sorry)

EPA’s final “Clean Water Rule: Definition of Waters of the United States” was published on 6/29/2015.  Fast forward to 12/8/2015 on which date oral argument was held in the 6th C. COA. I am stepping over the N. Dakota litigation as well as litigation pending in Galveston, Texas. At the moment, there is a nationwide stay against the rule courtesy of the 6th C.  This is in effect while the court sorts out the jurisdictional issue as to whether the rule should be challenged at the federal district court level or appellate level.  BTW, I don’t really like to refer to this rule as WOTUS.  I know, it rhymes with SCOTUS and POTUS. How ‘bout U.S. waters or federal waters?  Most people would still look at us, like, what the heck are they discussing?  That’s a nice segue to note that this federal rule clarifies (ahem) what waters are subject to regulation under federal law, i.e. the CWA.  I’m not sure bright (shore)lines are on the horizon.

4)      EPA SSM SIP Call – Thaw

I had to say thaw for some variety.  And compared to above matters, this case is actually further along.  This rule deals with the use of an affirmative defense in emission event cases and applies to 36 states, including Texas.  (I should mention that Texas’ rules are SIP approved and withstood challenge in the 5th C. COA. Yes, Texas is challenging.)   Briefing is due between 3/6/2016 and 9/4/16; oral argument is anticipated in late November or early December 2016.  I’m refusing to spell out SSM SIP because it makes me feel like I am a knowledgeable insider.

Ozone, Oil and the Uintah Basin

Posted on November 6, 2014 by James Holtkamp

Ozone is the quintessential ambient pollutant.  It is the result of complicated chemical reactions involving NOx and VOCs, sunlight, humidity and temperature.  It is primarily an urban pollutant, because that is where most of the NOx and VOCs are emitted, but it is also a regional challenge particularly in the eastern U.S. 

The Uintah Basin of eastern Utah is the quintessential Western U.S. Empty Quarter.  It is sparsely populated and windswept, and is a high-altitude desert.  It is home to the Ute Indian Tribe, and the greater part of the Basin is Indian Country for purposes of environmental regulation, meaning EPA – not the State of Utah – has regulatory authority.  The Basin is home to extensive reserves of oil, gas, oil shale and oil sands.

If the Basin is a dry, windy environment, then why have ambient ozone levels spiked dramatically in the Basin the last few years, during the winter, no less?  It turns out that ozone is not only created during hot muggy summer days, but when VOCs build up during winter inversions with a lot of sun and snow.  Periodic winter high pressure systems trap the VOCs and the ozone appears.  EPA has classified the Basin as “unclassifiable” for ozone and has denied an administrative petition to classify the area as nonattainment.  That denial is currently under review at the D.C. Circuit.

So where is this aberrant ozone coming from?  Although oil and gas has been produced in the Basin for decades, the fracking boom has swept into Eastern Utah with a vengeance, and the number of wells and associated facilities has mushroomed.  Utah DEQ, EPA Region 8, the counties, the Tribe, NGOs and the operators are jointly working on strategies to mitigate the problem, including newly promulgated state rules requiring retrofit of existing wells with equipment to reduce VOCs.  These efforts are complicated, however, by the jurisdictional differences over air issues as between Utah DEQ and EPA and the results are sometimes a bit clumsy.  But all of the stakeholders see the need to address the ozone issue proactively, and the end result will hopefully be a model for addressing similar issues in North Dakota, western Wyoming and Western Colorado.

EPA Inches Closer to a More Stringent Ozone Standard: When Will It Actually See the Light of Day?

Posted on February 11, 2014 by Seth Jaffe

Last week, EPA released its second external review draft of an updated Policy Assessment on the national ambient air quality standard for ozone. It also released updated draft risk and exposure assessments. To no one’s surprise, the new drafts confirm support for lowering the ozone NAAQS from 75 ppb to a range of 60 ppb to 70 ppb.

Why is this not a surprise?  Because, as I noted some time ago, the prior draft policy assessment also supported a NAAQS in the range of 60 ppb to 70 ppb. Moreover, the Clean Air Science Advisory Committee weighed in on the prior draft, supporting a standard in the 60 ppb to 70 ppb range. In fact, before getting cold feet, CASAC had indicated that the data would support a standard below 60 ppb.

Courts’ deference to CASAC determinations on these issues is pretty well established. It seems clear that EPA has to lower the NAAQS to at most 70 ppb in order to survive judicial review. It’s not even obvious that 70 ppb would stick, though that will be clearer after CASAC has reviewed this most recent draft Policy Assessment.

The other significant question is when EPA will actually issue the new standard. After all, EPA was prepared to issue a new standard in 2011 or early 2012, when the White House put the proverbial kibosh on EPA’s plans. Will EPA somehow manage to delay issuance of the new standard until after the November elections? Now that the Super Bowl is over, I think that the Vegas bookies are putting their money on after.

EPA Enforcement: Cleaning the Cleaners

Posted on March 7, 2012 by Stephen Leonard

Businesses that use volatile organic compounds (VOCs) in their industrial processes have long been regulated under the Clean Air Act and State Implementation Plans (SIPs) approved under the Act.  The Massachusetts Department of Environmental Protection Air Pollution Control Regulations, for example, contain very specific VOC control requirements at 310 CMR 7.18 for dozens of types of businesses and industries.  They regulate manufacturing processes (vinyl, polystyrene resin); surface coating (metal furniture, metal can, large appliance, magnetic wire, automobile, metal coil, miscellaneous metal, fabric, vinyl, plastic parts, leather, wood products, flat wood paneling); finishing (textiles, automotive refinishing); and degreasing.  The regulations prohibit use of cutback asphalt, and they limit the volatile portion of the inks used in various printing lines.  And, famously, they regulate the emissions, and hence the nostalgia-inducing aroma, of bakeries.

All of this is necessary because VOCs are a precursor to ozone, one of the original six “criteria pollutants” that Congress required EPA (and the states, through their EPA-approved SIPs) to control, in order to meet the National Ambient Air Quality Standards that EPA set for those pollutants.  Notwithstanding a long history of VOC regulatory enforcement, the air quality in all of Massachusetts – indeed all of southern New England – remains in “non-attainment” with the NAAQS for ozone.

EPA Region 1, which is based in Boston, has recently focused on a particular aspect of the problem:  the release of VOCs in connection with operation of “industrial laundries”.  These facilities serve the laundering needs of many different kinds of businesses and institutions – those, like hospitals, that require a steady supply of clean uniforms, and those, like print shops, that use towels to clean their equipment and therefore need a steady supply of fresh ones.  Some of those uniforms and towels contain volatile organic compounds.  And the VOCs can be released at various stages of an industrial laundry’s process of handling them for its customers, including collection, storage, transport, and washing of laundry.

EPA’s initiative has included information requests sent pursuant to Section 114 of the Clean Air Act, 42 U.S.C. 7414, and seeking detailed information about the laundries’ collection practices, their storage equipment, their operations and materials usage and – notably – their customers.  Based on the responses, EPA has required emissions testing at certain facilities, and it has issued Notices of Violation.  In one case during the summer of 2011, the Department of Justice, on behalf of EPA, sued an industrial laundry in New Hampshire (southern New Hampshire does not attain the ozone standard), alleging that the facility’s construction and operation, without prior approval, constituted violations of, among other things, the New Source Review provisions of the Clean Air Act.  The Consent Decree which settled the case requires payment of a civil penalty, modification of operating practices, installation of pollution control equipment, purchase and retirement of Emission Reduction Credits and implementation of a Supplemental Environmental Project. 

EPA continues its enforcement efforts with respect to other facilities in New England.  Whether those efforts will ultimately be successful in bringing southern New England, or parts of it, into compliance with the NAAQS for ozone is open to question, given the persistence of the problem and the wide variety of sources for precursor pollutants.  It is clear, though, that enforcement activity with respect to industrial laundries forms a part of EPA Region 1’s ozone-control strategy.  Other regions with similar non-attainment problems may be close behind.

Preserving the Tallgrass Prairie in the Face of Stringent Air Quality Standards: The Flint Hills Smoke Management Plan

Posted on January 17, 2011 by Charles Efflandt

It is an environmental truism that increasingly stringent air quality standards can cause collateral damage – typically economic in nature. It is less common for such standards to directly impact preservation of a significant North American ecosystem.

Comprising a vast area in eastern Kansas and northeast Oklahoma, the Flint Hills ecosystem remains today the last unfragmented expanse of tallgrass prairie on the continent. Roughly two-thirds of all tallgrass prairie in North America is contained in the Flint Hills. The Flint Hills provide a unique ecosystem for numerous mammals, birds, reptiles and cattle (the surrogate for the bison that once roamed this area and that served as a keystone species in maintaining biodiversity). The U.S. Fish & Wildlife Service and The Nature Conservancy have both identified the Flint Hills as a priority conservation action site.

Fire is a critical ecological driver in the tallgrass prairie. Lightning is nature’s tool for this process of ecological renewal. The burning of large sections of the Flint Hills was practiced for centuries by Native Americans. In more modern times, controlled burning has been utilized by conservation agencies and organizations, as well as by ranchers, as an ecological and agricultural management tool. Tallgrass prairie preservation requires frequent burning to prevent the encroachment of woody species and maintain the integrity of the plant communities and wildlife habitat. From an agricultural perspective, the burning and renewal of the tallgrass has been shown to significantly increase the productivity of the rangeland for cattle ranching purposes.
 

Such frequent and widespread burning, however, creates health concerns. Air modeling has shown transport of PM and ozone precursors as far east as Tennessee during the burning season. Air pollutants from Flint Hills burning have also adversely impacted or threatened the NAAQS attainment status of areas in Kansas and Missouri. With more stringent ozone regulations imminent, this conflict between ecological preservation and compliance with air quality standards will be exacerbated.

A recent ACOEL posting suggested, in the climate change context, that the severe economic consequences of the traditional legislative/regulatory process can and should be mitigated through creative voluntary community effort. With the ecologically and agriculturally beneficial practice of tallgrass burning on a collision course with NAAQS attainment, such an approach was recently embraced by the U.S. EPA, Kansas Department of Health and Environment, conservation and agricultural organizations and academia. The December 2010 approval of the Flint Hills Smoke Management Plan was the result of over a year of collaborative effort by these stakeholders. The key elements of the Plan include:

  • A new website with a predictive plume modeling tool for public and private decision-making.
  • Development of fire management practices to mitigate adverse health consequences and NAAQS violations associated with controlled burning.
  • A comprehensive data collection effort to better characterize prairie burning and its consequences.
  • Proposed limited legal restrictions on open burning during critical time periods.
  • Extensive outreach and education efforts, including prescribed fire training programs, public-private information sharing, and media exposure.
  • A pilot project in the spring of 2011 in two Kansas counties to implement the predictive computer modeling and fire management practices.

The Plan has been attacked by certain environmental organizations as a “smoke screen” whose objective is to facilitate EPA exemption of burning from enforcement in order to maximize beef production. These critics discount the ecological motivation for the Plan and allege that it is unlikely to adequately protect public health. I would suggest that the Plan should not be viewed as the final answer. Rather, it should be considered a working document that will evolve as the results of modeling and data collection and level of voluntary implementation are evaluated. Time will tell the extent to which the Plan can be cited as further evidence of the power of voluntary, collaborative

More on a New Ozone NAAQS: EPA's Clean Air Science Advisory Committee Endorses EPA's Proposed Range

Posted on February 1, 2010 by Seth Jaffe

EPA has proposed lowering the NAAQS to a range of from 0.060 ppm – 0.070 ppm. Earlier this week, EPA’s Clean Air Science Advisory Committee, or CASAC, met and endorsed EPA’s proposed range. Some CASAC members did express concern about EPA’s proposed secondary seasonal standard, intended to protect crops and forests. However, overall, the CASAC seal of approval is pretty much the end of this argument.

It is important to recall how we got here. CASAC already endorsed the 0.060 ppm – 0.070 range several years ago, before EPA’s last ozone standard was issued. It was EPA’s refusal to follow the CASAC recommendations, and instead propose a 0.075 ppm standard, which led to litigation challenging the standard and the current controversy. 

It is difficult to overstate the weight given the CASAC’s views. Indeed, EPA’s fine particulate standard was vacated in significant part because EPA failed to follow CASAC’s recommendations.

Thus, a standard that does not comport with CASAC’s recommendations would likely be rejected by the courts as arbitrary and capricious. However, I suspect that CASAC’s influence also runs the other way. Assuming that EPA does indeed promulgate a revised NAAQS in the 0.060 ppm – 0.070 ppm range, and assuming that industrial interests challenge the new standard, it will be very difficult to establish that the new standard is arbitrary and capricious if it has been endorsed by CASAC. 

As I noted in connection with the fine particulate standard, it’s not obvious to me that this is a good thing. Depending on whose ox is being gored, anyone can get up on a soapbox and say that they want science to be free of politics. However, these are really policy decisions. It’s one thing to acknowledge that these are complicated issues and we thus have to allow Congress to delegate its authority to the EPA administrator. It’s another effectively to delegate the decision further to the CASAC, which is about as obscure an acronym body as we have. Do we really want standards which will result in compliance costs in at least the tens of billions of dollars being made by groups which truly are not accountable in any meaningful way?