Articles on Air Quality

 

EPA Must Consider Costs in Deciding Whether to Regulate HAPs From Power Plants

Air Quality

Last week, in Michigan v. EPA, the U.S. Supreme Court held that it was unreasonable for the U.S. Environmental Protection Agency (“EPA”) to refuse to consider costs in connection with its finding that it was “appropriate and necessary” to regulate hazardous air pollutant (“HAP”) emissions from power plants under the federal Clean Air Act (“CAA”).

By way of background, the CAA instructs EPA to regulate HAP emissions from power plants if it concludes that regulation is “appropriate and necessary.”  The “appropriate and necessary” language stems from the 1990 CAA amendments, wherein Congress established a procedure for determining the applicability of the HAP program to power plants.  Those amendments require EPA to regulate power plants as ordinary major sources if, after conducting several studies, EPA finds that it is “appropriate and necessary.”

After EPA completed the required studies in 1998, it concluded that regulation of power plants was in fact “appropriate and necessary.”  EPA’s “appropriate” finding was based on a conclusion that power plants emitted mercury and other HAPs which posed a risk to human health and the environment and that emission reduction controls were available.  EPA’s “necessary” finding was based on its conclusion that then-existing requirements did not eliminate risks.  In conjunction with its conclusions, EPA determined that “costs should not be considered” in determining whether power plant HAPs should be regulated.  A Regulatory Impact Analysis issued by EPA estimated that EPA’s decision would cost power plants $9.6 billion per year, whereas quantifiable regulatory benefits would be worth $4 to 6 million per year.

Reviewing EPA’s statutory interpretation under the test enunciated in Chevron USA, Inc. v. NRDC, Inc., 720px-Seal_of_the_United_States_Supreme_Court_svgthe U.S. Supreme Court concluded that the phrase “appropriate and necessary” requires “at least some attention to cost.”  Moreover, the Supreme Court found that statutory context reinforced the relevance of cost, as EPA was asked to study cost prior to determining whether it was “appropriate and necessary” to  regulate HAP emissions from power plants.  Although EPA argued, among other things, that the statute at issue did not mention cost and therefore did not require EPA to consider cost, the Supreme Court maintained that the statute’s broad reference to “appropriateness” encompassed multiple relevant factors—including cost.

Several commentators have concluded that the effect of the Supreme Court’s decision in Michigan v. EPA is somewhat inconsequential, since EPA can nevertheless regulate HAP emissions from power plants (including mercury) provided that it merely considers costs in the future.  It is unclear whether this conclusion is true, as the Supreme Court’s opinion is chock-full of intimations that in determining “appropriateness,” EPA must also weigh—to at least some extent—costs against benefits.   For example, the Supreme Court stated that “[o]ne would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”  Moreover, although the Supreme Court acknowledged that “[i]t will be up to [EPA] to decide . . . how to account for cost,” the Court also acknowledged that EPA must nevertheless consider costs “within the limits of reasonable interpretation.”  Thus, in any event, Michigan v. EPA stands for the principle that EPA must engage in reasoned decision making in its decision to regulate HAP emissions from power plants.

 

SMOG CHECK: EPA IMPLEMENTS THE 2008 OZONE STANDARDS

Air Quality

This week, the Environmental Protection Agency (EPA) took two next steps toward the implementation of the 2008 air quality standards for ground-level ozone, which is commonly referred to as smog: it finalized designations for every area of the country, with the exception of the Chicago-Naperville and Illinois-Indiana-Wisconsin area and issued a final rule relating to such designations. 

Before we get into the details of EPA’s actions, a bit of background… The Clean Air Act (CAA) requires EPA to set National Ambient Air Quality Standards (NAAQS) for ozone, the main component in smog, and five other pollutants considered harmful to public health and the environment. The law further requires EPA to review these standards every five years. As required by the CAA, in March 2008, EPA issued a new NAAQS for ground level ozone of 0.075 parts per million (ppm).  Later in 2009, EPA announced that it was initiating a rulemaking that would reconsider this standard, primarily to bring it in line with the recommendation of the Clean Air Scientific Advisory Committee (CASAC), which was in the 0.060 to 0.070 ppm range. However, as we reported, in September of 2011, citing the economic downturn and the fact that it will be revised again in 2013 as part of the CAA’s five year policy, President Obama announced that he would put this rulemaking on hold and later that same month, EPA said that it would move forward with implementation of the 2008 standard of 0.075 ppm.

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Cabazon Band of Mission Indians Agrees to Air Quality Rules

Air Quality

In a landmark agreement, the South Coast Air Quality Management District (SCAQMD) reached a “government-to-government” agreement with the Cabazon Band of Mission Indians to enforce some of the SCAQMD’s air quality regulations on tribal land. 

The SCAQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties, but does not have jurisdiction over tribal lands. Under the agreement announced yesterday, the tribe has voluntarily agreed to allow the SCAQMD inspectors to conduct air sampling, monitoring and inspection activities on the 640-acre Cabazon Resource Recovery Park industrial park near Mecca. It also requires facilities operating within the park, including Western Environmental Inc., to comply with applicable SCAQMD rules. The agreement will also allow the SCAQMD to enforce permits issued by the U.S. Environmental Protection Agency to facilities operating within the park.

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Environmental Groups Bring Suit Against EPA to Require Air Monitoring Along So-Cal Freeways

Air Quality

On Tuesday, the Natural Resources Defense Counsel (NRDC), Physicians for Social Responsibility-Los Angeles and Communities for a Better Environment brought a suit against the Environmental Protection Agency (EPA) for EPA’s approval of the South Coast Air Quality Management District’s (SCAQMD) 2011 Annual Air Quality Monitoring Network Plan on November 1, 2011 (the Air Monitoring Plan). 

The SCAQMD is the air pollution control agency for all of Orange County and the urban portions of Los Angeles, Riverside and San Bernardino Counties.  The Air Monitoring Plan describes the network of ambient air quality monitors within the SCAQMD’s jurisdiction (click here for the final plan).  Federal law requires EPA to review the Air Monitoring Plan annually to identify the need to make any changes to the air monitoring requirements. 

Although the environmental groups’ opening brief is not due until the end of March, according to NRDC’s press release, the focus of the suit will be that EPA violated the Clean Air Act by approving the Air Monitoring Plan even though it does not require air quality monitoring along Southern California freeways.  NRDC contends that such monitoring is necessary to “better inform the local air district about the hazardous levels of particulate air pollution, and to arm them with the information necessary to take action to protect the region’s residents.”  The environmental groups are seeking the installation of air monitors along the region’s highways.

Cali Leads Clean Car Revolution Again: Comprehensive Advanced Clean Car Rules Announced

Air Quality

CarsTrucksThe car-obsessed culture in California has driven (ha ha!) agencies to address the issues of climate change and air quality in more frequent, increasingly stringent and multi-faceted ways. In the latest round of regulation aimed at tackling these ever-present issues, the California Air Resources Board (CARB) has announced a package of proposed new rules which it hopes will deliver cleaner air, slash greenhouse gases (GHGs) and rapidly increase numbers of zero-emissions vehicles. The comprehensive Advanced Clean Car program has been in the works for three years and unites the goals of reducing greenhouse gas emissions and the emission of smog-producing pollutants into one single group of rules for cars and light trucks from 2015 through 2025.

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A Park with a View: EPA Sets Schedule to Improve Visibility at National Parks

Air Quality

Smog1Last week the United States Environmental Protection Agency (EPA), in an effort to resolve ongoing litigation under the Clean Air Act with environmental groups over dozens of past due state implementation plans (SIP), agreed to a schedule for taking action on more than 40 state plans aimed at lowering haze in national parks and wilderness areas.

Regional haze, the visibility impairment produced by a multitude of sources and activities that emit fine particles and their precursors across a broad geographic area, has decreased the average visual range in western national parks from 140 miles to 35 to 90 miles, and in eastern parks, from 90 miles to 15 to 25 miles. To address this problem, EPA promulgated regulations in 1999 requiring states to develop and submit SIPs to improve visibility in 156 national parks and wilderness areas, including the Grand Canyon, Yosemite, and Shenandoah Valley. These plans, which focus on reducing harmful pollution from large, older stationary sources, such as power plants, cement plants and large industrial boilers, were due in December 2007. In January 2009, EPA found that the majority of states had failed to submit their regional haze plans, in full or in part, and in August 2011, the National Parks Conservation Association and Sierra Club, among others, initiated litigation in federal Court to end the on-going delay.

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EPA Rule on Carbon Monoxide Adds New Monitoring Requirement for Metropolitan Roadways, but Standards Will Stay the Same

Air Quality

CarsTrucksThe Environmental Protection Agency (EPA) announced its final rule this week affirming the current national air quality limits for carbon monoxide (CO), which describe how much of the pollutant is acceptable in outside air. EPA’s statement said the agency, after a careful review of the science, determined that the current standards for the pollutant protect the public health, including those who are most susceptible to the gas. For a more detailed explanation of EPA’s decision click here.
While finding existing limits for carbon monoxide are strong enough, EPA did alter its monitor siting requirements for large urban areas, increasing its focus on transportation routes. The agency will now require carbon monoxide monitors placed near roads in 52 urban areas around the country. Urban areas having populations of 1 million or more persons must have one near-road monitor operational by January 1, 2017. Near-road monitors required for urban areas having 2.5 million or more persons must be operational by January 1, 2015.

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Goodbye Perc, Hello Green Dry Cleaning: EPA approves California regulations banning PERC by 2023

Air Quality

Dry CleanersThis week, the Environmental Protection Agency (EPA) announced its approval of California’s regulations banning the use of perchloroethylene (also known as perc and tetrachloroethylene) in dry cleaning operations by 2023. EPA is required to regulate the use of perc by dry cleaners pursuant to the Clean Air Act. However, its approval of California’s rules means the replacement of EPA’s federal regulations with the state’s more stringent ones and sends California on its way to becoming the first perc-free dry cleaning state.
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The Clean Air Act Turns 40

Air Quality

Today is the 40th year anniversary of the passage of the Clean Air Act. This landmark legislation, which Congress revised and expanded in 1990, provides the Environmental Protection Agency (EPA) with the authority to regulate air pollutant emissions. EPA is celebrating the Clean Air Act’s anniversary today, by touting the health and environmental benefits achieved under the act over the past 40 years. According to EPA, these achievements include significant health benefits to children, improved air quality and public health, cleaner cars, trucks and transportation, combating acid rain, cleaner power plants, reducing industrial toxic air pollution, and reducing skin cancer by protecting the ozone layer.

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EPA Issues Major New Rules for Stationary Diesel Engines

Air Quality

On Feb. 17, the U.S. Environmental Protection Agency issued the first new emission guidelines for stationary diesel engines. The final rules, which were years in the making and closely watched by the industry, may affect as many as 900,000 small diesel engines used primarily in agricultural and industrial activities to generate electricity for compressors and pumps.

According to the EPA, the new rules are designed to cut toxic emissions and safeguard public health by cutting down on heart attacks, asthma and respiratory diseases caused by diesel engine emissions. Specifically, the rules seek to cut emissions of formaldehyde, benzene, acrolein and other air pollutants suspected to cause cancer and other health problems.

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