Articles Posted in Air Quality

The Prop 65 “Clear and Reasonable Warnings” updates that became effective in August 2018 contain lots of traps for the unwary, including one that you might not have noticed:  tailored Prop 65 warnings are required at each of the public entrances to your enclosed parking facilities.

To avail your regulated business to the “safe harbor” content and method provisions of the “enclosed parking” provisions of Prop 65,  you must comply with specific signage requirements such as the size, placement, font and warning symbol, as well as include the following warning language: “Breathing the air in this parking garage can expose you to chemicals including carbon monoxide and gasoline or diesel engine exhaust, which are known to the State of California to cause cancer and birth defects or other reproductive harm.  Do not stay in this area longer than necessary.  For more information go to”

bear-300x201Businesses have pointed out that Prop 65 signage at enclosed parking facilities does absolutely nothing to change human behavior.  People still need to go to work, and if they live in many parts of California, they still need to drive to work and park.  Despite this, prudent business owners should still comply with the warning requirements as penalties for failure to comply with Prop 65 can be steep – up to $2,500 per day for each violation.  Businesses that do not comply with Prop 65’s warning requirements are often targeted by plaintiffs’ attorneys and consumer groups and may be held responsible for plaintiffs’ attorneys’ fees.

Today the U.S. Environmental Protection Agency published a proposed rule in the Federal Register which would add a vapor intrusion component to the Hazard Ranking System, the system EPA uses to evaluate sites for placement on the National Priorities List (“NPL”).  We forecasted and discussed the publication of this proposed rule in a blog post earlier this month.  Under the proposed rule, the Hazard Ranking System evaluation could directly consider “human exposure to hazardous substances, pollutants, or contaminants that enter regularly occupied structures through subsurface intrusion in assessing a site’s relative risk, and thus, enable subsurface intrusion contamination to be evaluated for placement of sites on the NPL.”  Click here to see the proposed rule.

Comments may be submitted on the proposed rule through April 29, 2016.

A  proposed rule that would add a vapor intrusion component to the Hazard Ranking System (“HRS”), the primary screening tool for the CERCLA National Priorities List (“NPL”), is scheduled for publication in the Federal Register this month.  NPL listing is a prerequisite for designation as a federal Superfund site.  Previously, the HRS did not take into direct consideration the vapor intrusion pathway, and NPL listing was based upon only the ground water migration, soil exposure, surface water migration, and air migration pathways.  The proposed rule represents a renewed effort by the U.S. Environmental Protection Agency to expressly account for vapor intrusion in the NPL evaluation process, following a prior version of this rule proposed in 2010.

Proponents of the rule contend that vapor intrusion presents unique risks to human health that the HRS does not adequately account for, while industry opponents assert the new criteria would result in the identification of few, if any, new NPL sites and that the lengthy Superfund process is not the appropriate vehicle to address any sites that may involve more imminent threats to human health.

Upon publication in the Federal Register, there will be a sixty-day public comment period.   For more information, please click here.  Check back to the blog for future updates.

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.

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. 1010374791-300x213

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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SouthIn 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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houses1-300x209On 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.

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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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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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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