The article “Regional Reports: EPA Headquarters” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 13, No. 1, January
2010, Section of Environment, Energy, and Resources, American Bar Association. © Copyright 2010. American Bar Association. All rights reserved.
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and all metal HAP emissions from all paints and allied
products manufacturing operations at the area source.
For existing area source facilities, compliance would be
required no later than 2 years after publication of the
final rule in the Federal Register, and for new sources,
compliance would be required upon publication of the
final rule in the Federal Register or upon startup of the
facility, whichever is later. To control emissions of metal
HAPs (cadmium, chromium, lead, and nickel), EPA is
proposing use of a particulate control device and a limit
on visible emissions from the device not to exceed
5 percent opacity when averaged over a 6-minute
period. To control emissions of volatile HAPs (benzene
and methylene chloride), EPA is proposing
management practices during pre-assembly/premix and
grinding/milling manufacturing. Process and storage
vessels are to be equipped with covers or lids meeting
requirements set forth in the proposed rule. Mixing
vessels must also be equipped with covers. Leaks and
spills of materials containing volatile HAPs must be
immediately minimized and cleaned up, and waste
solvent rags or other materials used for cleaning must
be kept in closed storage vessels. To demonstrate
compliance, the proposed rule would require a
certification that the required control technologies and
management practices have been implemented and that
all equipment associated with process will be properly
operated and maintained. In addition, a visual
emissions test would be required to be performed on
the particulate control device on or before the
compliance date and every 6 months thereafter.
REGIONAL REPORTS:
EPA HEADQUARTERS
Gale Lea Rubrecht
Jackson Kelly PLLC
Charleston, West Virginia
galelea@jacksonkelly.com
I. Air Toxics
Since May 2009, the U.S. Environmental Protection
Agency (EPA) proposed National Emission Standards
for Hazardous Air Pollutants (NESHAP) rules for the
following area source categories: paints and allied
products manufacturing, asphalt processing and
asphalt roofing manufacturing, and prepared feeds
manufacturing. EPA also extended the deadline for
comments on the proposed NESHAP rules for the
Portland cement manufacturing industry and announced
plans to issue a number of Information Collection
Requests, including a new request for coal- and oilfired electric utility steam generating units. In addition,
EPA released preliminary monitoring data under its
School Air Toxics Monitoring Program and also
released the National Air Toxics Assessment. Finally,
EPA promulgated the final NESHAP rule for the
aluminum, copper, and other nonferrous foundries area
source category.
A. Paints and Allied Products Manufacturing
On June 1, 2009, EPA published a proposed
NESHAP rule (74 Fed. Reg. 26,142) for paints and
allied products manufacturing. The proposed rule
would apply to facilities engaged in: mixing pigments,
solvents, and binders into paints and other coatings,
such as stains, varnishes, lacquers, enamels, shellacs,
and water-repellant coatings for concrete and masonry,
and manufacturing adhesives, glues, and caulking
compounds, printing ink jet inks and ink jet cartridges
and indelible ink, India ink writing ink, and stamp pad
ink. If the proposed standards are applicable to a
facility, they would apply to all organic HAP emissions
The proposed rule also includes notification,
recordkeeping, and reporting requirements. An Initial
Notification would be required within 120 days of the
effective date of the final rule and a Notification of
Compliance Status Report would be due 150 days
after the compliance date. In addition, each facility
would be required to prepare an annual compliance
certification for the previous calendar year no later than
Jan. 31 of each year. Facilities would be required to
submit this annual compliance report only if there is any
deviation from the requirements or visual emissions
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testing during the year. The proposed rule would also
require facilities to generate a monthly record for the
implemented management practices and the particulate
control device inspections. For demonstrating ongoing
compliance, the proposed rule would require daily,
weekly, and annual inspections; semi-annual visible
emissions testing; monthly checklists; and annual
certifications that the management practices are being
followed and the particulate control device is being
properly operated. The proposed rule would require a
“responsible official” at the facility to sign off by the
15th day of the following month that all requirements
were met in the previous month. Finally, the proposed
rule would require that records be kept for 5 years but
allow records to be kept onsite for 2 years and offsite
for the remaining 3 years. Comments were due July 1,
2009. The proposed rule is in response to a courtordered deadline that requires EPA to issue standards
for categories listed pursuant to section 112(c)(3)(k) of
the Clean Air Act (CAA) by Aug. 17, 2009. Sierra
Club v. Johnson, No. 01-1537 (D.D.C. Mar. 2006).
D. National Air Toxics Assessment
On June 24, 2009, EPA released the National Air
Toxics Assessment (NATA) based on 2002 air
emissions data. The NATA provides emissions and
health risk information on thirty-three air toxics that
present the greatest threat to public health in the largest
number of urban areas. According to the 2002 NATA,
most people in the United States have an average
cancer risk of 36 in one million if exposed to 2002
emission levels over the course of their lifetime. Two
million people (less than 1 percent of the total U.S.
population) have an increased cancer risk of greater
than 100 in 1 million. Benzene was the largest
contributor to the increased cancer risks.
E. Aluminum, Copper, and Other Nonferrous
Foundries
On June 25, 2009, EPA published final NESHAP rules
for aluminum, copper, and other nonferrous foundries
(74 Fed. Reg. 30,366). EPA also revised the area
source category list developed under section 112(c)(3)
of the CAA by changing the name “Secondary
Aluminum Production” to “Aluminum Foundries” and
the “Nonferrous Foundries, not elsewhere classified”
category to “Other Nonferrous Foundries.” The final
emission standards apply to existing and new
aluminum, copper, or other nonferrous foundries that
melt more than 600 tons per year (tpy) of aluminum,
copper, or other nonferrous metals based upon
production from calendar year 2010. The final rule
includes “once-in, always-in” provisions. The final rule
also looks to 2010 production to determine the size
classification of a copper or other nonferrous foundry
as small or large and sets the threshold to distinguish
between small and large foundries at 6,000 tpy. The
standards require owners/operators of affected
sources to develop and operate under a written
management practices plan that requires them to:
(i) cover or enclose melting furnaces that are equipped
with covers or enclosures during the melting process,
except when access is needed, including, but not
limited to, charging, alloy addition and tapping and
(ii) purchase only scrap material that has been depleted
(to the extent practicable) of HAP metals in the
materials charged to the melting furnace(s), excluding
B. Portland Cement Manufacturing
On June 9, 2009, EPA published a notice (74 Fed.
Reg. 27,265) of three public hearings and an extension
of the public comment period on the proposed
amendments to the NESHAP for the Portland Cement
Manufacturing Industry that EPA published on May 6,
2009 (74 Fed. Reg. 21,136). EPA scheduled public
hearings in Los Angeles, California, on June 16, 2009;
Dallas, Texas on June 17, 2009; and Arlington,
Virginia, on June 18, 2009. In addition, EPA extended
the deadline for written comment on the proposed
amendments to Sept. 4, 2009.
C. Schools Air Toxics Monitoring
On June 22, 2009, EPA released the first preliminary
sets of monitoring data for two Tennessee schools
under the agency’s School Air Toxics Monitoring
Program. EPA had identified manganese as the
pollutant most likely to be of concern at the two
schools, but the preliminary results show that levels of
manganese are well below levels of short-term
concern. The study, however, is designed to evaluate
health risks from long-term exposure.
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HAP metals that are required to be added for the
production of alloyed castings or that are required to
meet written specifications for the casting. In addition,
an existing large copper foundry and other nonferrous
foundry must achieve a particulate matter (PM) control
efficiency of at least 95.0 percent or an outlet PM
concentration of at most 0.015 grains per dry standard
cubic foot (gr/dscf) and a new large copper foundry or
other nonferrous foundry must achieve a PM control
efficiency of at least 99.0 percent or an outlet PM
concentration of at most 0.010 gr/dscf. A one-time
initial performance test to demonstrate compliance with
the PM/metal HAP standard and monitoring
obligations are required for any existing or new large
copper or other nonferrous foundry. The final rule also
contains notification, recordkeeping, and reporting
requirements. The final rule exempts affected sources
from Title V permit requirements. The final rule took
effect June 25, 2009. Any petition for review was due
Aug. 24, 2009.
highways. Nor would the proposed standards affect
companies that install built-up roofing. For existing
sources, compliance would be required no later than
one year after publication of the final rule in the
Federal Register, and for new sources, compliance
would be required upon the later of publication of the
final rule in the Federal Register or startup of the
facility. The proposed rule includes an emissions limit
for polycyclic aromatic hydrocarbons (PAH) and an
equivalent emissions limit for PM, which EPA
determined is an appropriate surrogate for PAH. For
asphalt processing, the proposed standards would
require the owner/operator to limit PAH emissions to
0.003 lb/ton, or alternatively, limit PM emissions to
1.2 lb/ton of asphalt charged to the asphalt refining
(blowing still) operation. For the asphalt roofing
product manufacturing operations, EPA developed
three subcategories based upon the various equipment
configurations used in the industry: (i) production lines
that use a coater only, (ii) production lines that use a
saturator only, and (iii) production lines that use
saturators and coaters. For coater-only production
lines, the proposed standards would require the owner/
operator to: limit PAH emissions from all coating
mixers and coaters to 0.0002 lb/ton, or alternatively,
limit PM emissions of 0.03 lb/ton of product
manufactured. For saturator-only production lines, the
proposed standards would require the owner/operator
to: limit PAH emissions from all saturators (and wet
loopers) to 0.0004 lb/ton, or alternatively, limit PM
emissions to 0.05 lb/ton of product manufactured. For
existing combined saturator and coater production
lines, the proposed standards would require the owner/
operator to: limit PAH emissions from all saturators,
wet loopers, coating mixers, and coaters to 0.0006 lb/
ton, or alternatively, limit PM emissions to 0.07 lb/ton
of product manufactured. The proposed rule would
require an initial performance assessment of the
process emissions or control device outlet and then
monitoring of the parameters and process conditions
established during the initial compliance assessment.
For asphalt processing operations and asphalt roofing
manufacturing lines that include a saturator, the
proposed rule would require emission tests. The
proposed rule would also impose notification,
recordkeeping and reporting requirements. For
example, an initial notification would be required within
F. Gasoline Distribution
On June 30, 2009, EPA published notice of a
proposed settlement agreement in Alliance of
Automobile Manufacturers v. EPA, No. 08-1109
(D.C. Cir.), challenging EPA’s gasoline distribution
NESHAP that was published Jan. 10, 2008 (74 Fed.
Reg. 1916). Under the terms of the proposed
settlement, EPA will sign and submit for publication in
the Federal Register a notice of proposed rulemaking
to amend the gasoline distribution NESHAP. Written
comments on the proposed settlement agreement were
due July 30, 2009.
G. Asphalt
On July 9, 2009, EPA published a proposed
NESHAPs rule (74 Fed. Reg. 32,822) for asphalt
processing and asphalt roofing manufacturing. The
proposed standards would apply to existing and new
area source facilities that process (refining) asphalt and/
or manufacture (coating) roofing products using
saturation and/or coating processes. The standards
would not apply to research or laboratory facilities as
defined in section 112(c)(7) of the CAA or hot-mix
asphalt facilities used for the construction of roads and
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120 days of the effective date of the final rule, and a
notification of compliance would be due within 60 days
after completion of the compliance assessment.
Comments were due Aug. 10, 2009.
to install and operate a cyclone to reduce emissions of
PM that include chromium compounds or manganese
compounds from pelleting and pellet cooling
operations. The proposed rule would require that the
cyclone be designed to achieve at least 95 percent
reduction in PM less than 10 microns in diameter
(PM10). The proposed rule would impose inspection
and monitoring requirements to ensure compliance as
well as notification, recordkeeping, and reporting
requirements. For example, an Initial Notification
would be required to be submitted not later than
120 days after publication of the final rule in the
Federal Register, and a Notification of Compliance
Status would be required to be submitted 120 days
after the compliance date. Additionally, EPA is
proposing to exempt affected facilities from obtaining
Title V permits. Comments were due Aug. 26, 2009. A
court order required EPA to finalize the rule by
Oct. 15, 2009.
H. Feeds Manufacturing
On July 27, 2009, EPA published a proposed
NESHAP rule (74 Fed. Reg. 36,980) for prepared
feeds manufacturing facilities. Prepared feeds
manufacturers produce food for large and small
animals except dogs and cats. The proposed standards
would apply to new or existing prepared feeds
manufacturers who add chromium compounds or
manganese compounds to their product. For existing
sources, the compliance date would be two years after
publication of the final rule in the Federal Register,
and for new sources, which are defined as any affected
source that commences construction after July 27,
2009, the compliance date would be the later of
publication of the final rule in the Federal Register or
startup. The proposed standards consist of general
management practices that apply in all areas of the
affected sources, requirements for specific processes
or areas of an affected source, and equipment
standards. Proposed general management practices
include: (i) minimizing excess dust that could contain
chromium compounds or manganese compounds by
industrial vacuuming or manual sweeping, monthly
dusting of walls, ledges, and equipment using low
pressure air and then sweeping or vacuuming the area,
and by keeping doors shut; and (ii) maintaining and
operating all process equipment that stores, processes,
or contains chromium compounds or manganese
compounds in a manner to minimize dust creation.
Proposed specific management practices include:
(i) storing all raw materials containing chromium
compounds or manganese compounds in closed
containers, (ii) adding materials containing chromium
compounds or manganese compounds to the mixer in a
manner to reduce emissions, and covering the mixer at
all times when mixing is occurring, except when
materials are being added, and (iii) using filter drop
socks when loading product containing chromium
compounds or manganese compounds into trucks or
railcars. In addition, facilities with average daily feed
production levels exceeding 50 tpd would be required
I. Coal- and Oil-Fired EUSGUs
In July and August 2009, EPA announced plans to
submit a number of Information Collection Requests
(ICRs) to the Office of Management and Budget
(OMB), including: national emissions standards for
coal- and oil-fired electric utility steam generating units
(74 Fed. Reg. 31,725; July 2, 2009). The ICR for
coal- and oil-fired electric utility steam generating units
is new and is the first step in establishing a maximum
achievable control technology (MACT) for mercury
emissions from power plants.
II. Climate Change—California GHG Emission
Standards for Motor Vehicles
On July 8, 2009, EPA granted California’s request for
a waiver of Clean Air Act preemption to enforce
greenhouse gas (GHG) emission standards that were
adopted by the California Air Resources Board on
Sept. 24, 2004 for model year 2009 and later new
motor vehicles (74 Fed. Reg. 32,744). In its decision,
EPA finds that California continues to have a need for
its motor vehicle emissions program, including the
GHG standards. EPA also finds that the California
program meets legal requirements regarding the
protectiveness of public health and welfare as well as
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technological feasibility. The decision withdraws and
replaces the agency’s previous denial that was
published March 6, 2008 (73 Fed. Reg.12,156). EPA
addresses the impact of its granting California’s waiver
request on prevention of significant deterioration (PSD)
requirements for GHGs. EPA notes that “Several
commenters suggest that there would be a major
consequence if an EPA waiver were to trigger other
requirements under the Act, including … PSD
requirements, and should it grant the waiver, EPA
should state clearly that the waiver does not render
GHGs ‘subject to regulation’ under the Act.” EPA
further notes it “received comment suggesting that the
question of when and how GHGs should be addressed
in the PSD program or otherwise regulated under the
Act should instead be addressed in separate
proceedings dedicated to evaluating the complicated
issues and impacts associated with those issues.” In its
decision, EPA “agrees that these issues are not relevant
to the waiver decision criteria, and are most
appropriately addressed in a separate forum.” EPA
expressly states that it “is not addressing these issues in
[its July 8, 2009] decision.” 74 Fed. Reg. at 32,783/3.
Petitions for review are due Sept. 8, 2009.
with specific labeling, warranty, and other requirements
to ensure the non-road engines will meet emissions
standards in use. The compliant alleges that the
defendants failed to provide buyers with the full
emission-system warranty required by the CAA for all
of the non-road engines that were sold, to install
proper emission-compliance labels on many of the
engines, and to respond fully to EPA’s administrative
information requests issued under the CAA. The
lawsuit was filed in U.S. District Court for the District
of Columbia.
IV. Mobile Sources
A. Ethanol
On May 20, 2009, EPA published a notice extending
the public comment period from May 21, 2009 to
July 20, 2009, on a waiver application to increase the
allowable ethanol content of gasoline to 15 percent
(E15) submitted by ethanol manufacturers. Notice of
receipt of the waiver application and request for
comment was published in the Federal Register on
April 21, 2009 (74 Fed. Reg. 18,228). This action
does not extend the 270-day statutory deadline for the
EPA administrator to grant or deny the E15 waiver
request, which ends on Dec. 1, 2009.
III. Enforcement—Non-Road Engines
On May 28, 2009, the United States filed the first civil
complaint seeking to enforce the CAA’s emissions
standards for portable generators, water pumps, and
other “non-hand held equipment.” In its complaint, the
government alleges that defendants PowerTrain Inc.,
Wood Sales Co. Inc., and Tool Mart Inc. imported
and sold more than 78,000 Chinese-made engines that
do not meet federal air pollution standards that were
adopted in 1995. The complaint alleges that the nonroad engines were not certified to meet applicable
emission standards. The CAA prohibits any non-road
engine from being imported and sold in the United
States unless covered by a “certificate of conformity”
indicating that the engine meets applicable emission
standards. To obtain a certificate of conformity for
non-road engines from EPA, a manufacturer must
submit an application that describes the non-road
engine and its emission control system, and that
demonstrates that the non-road engines will meet
applicable federal emissions standards. After obtaining
a certificate of conformity, applicants must also comply
B. GHG Emissions from Vehicle
On May 22, 2009, EPA and the U.S. Department of
Transportation (DOT) published notice of their intent
to conduct a joint rulemaking to propose standards for
control of emissions of GHGs and for fuel economy.
These standards would apply to passenger cars, lightduty trucks, and medium-duty passenger vehicles
(light-duty vehicles) built in model years (MYs) 2012
through 2016. These standards would be a national
program, allowing manufacturers to build a single lightduty national fleet that would satisfy all requirements
under both programs. The GHG standards that EPA
expects to propose and promulgate would become
final only if EPA finalizes its proposed endangerment
finding.
The May 22, 2009 notice provides an overview of the
level and form of the standards, the available
compliance mechanism and general implementation
5
a manufacturer to transfer credits among its vehicle
fleet to achieve compliance with the standards.
Currently EPA intends to propose unlimited credit
transfers across a manufacturer’s car-truck fleet.
Proposals under consideration by the agencies would
also allow accumulated credits to be traded to other
vehicle manufacturers. EPA is also considering an
approach that would allow manufacturers to earn
credits by reducing GHG emissions related to air
conditioning systems and allowing early air conditioning
credits.
elements that EPA and DOT are considering. For the
level of standards, EPA is considering standards that
would achieve on average 250 grams/mile of CO2 in
MY 2016. The standards for earlier years would begin
with the 2012 MY and follow a linear phase-in until full
implementation with MY 2016. The standard of 250
grams/mile CO2 would translate to a fleet average total
of 35.5 mpg if the automotive industry were to achieve
this CO2 level solely through fuel economy
improvements. However, EPA expects that most
companies would also apply some air conditioning
improvements to reduce GHG emissions and that
therefore the fuel economy improvements would be
below the 35.5 mpg value. The form of the standards
would be attribute-based and would be based on
vehicle footprint. The agencies currently intend to
propose separate footprint-based standards, or
curves, for passenger cars and light-trucks but also
intend to consider an approach that would generally
flatten the passenger car curve, more in line with the
shape of the truck curve for the MY 2011 CAFE
standard.
In addition to CO2/CAFE credits based on fleet
average performance, the agencies are considering
credits for flex-fuel and alternative fuel vehicles. EPCA
authorizes an incentive under the CAFE program for
production of dual-fueled or flexible-fuel vehicles and
dedicated alternative fuel vehicles. For the GHG
program, EPA intends to propose allowing flexible-fuel
vehicle credits consistent with the Energy
Independence and Security Act of 2007 (EISA) limits
only during the period from MYs 2012 to 2015. EPA
says it will also consider allowing flexible-fuel vehicle
credits beyond MY 2015 if manufacturers are able to
demonstrate that the alternative fuel is in fact being
used in the vehicles.
The proposal under consideration would provide
program flexibilities for achieving compliance. CO2/
CAFE credits could be earned based on fleet average
performance. The fleet average standards would apply
to a manufacturer’s car and truck fleets and would be
based on the applicable attribute-based curves. At the
end of each model year, a sales-weighted fleet average
would be calculated for each averaging set (cars and
trucks). A manufacturer’s cars and/or truck fleet that
achieve a fleet average CO2/CAFE level better than
the standard would earn credits. If the fleet average
CO2/CAFE level does not meet the standard, the fleet
would generate debits.
Additionally, EPA is considering a temporary lead-time
allowance for manufacturers whose sale of vehicles in
the United States in a specified time period is below a
specified cut-off, such as sales of 400,000 vehicles or
less during a specified year, e.g., MY 2009 or 2010.
Finally, EPA is considering additional potential credit
opportunities for early credits in MYs 2009-2011
through over-compliance with a baseline standard. The
baseline standard would be set to be equivalent, on a
national level, to the California standards. Options for
this early credit include over-compliance by the fleet of
vehicles sold in California and the CAA section 177
states, or over compliance by the fleet of vehicles sold
in the fifty states. EPA is also considering allowing early
credits based on over-compliance with CAFE, but
under the contemplated proposal, only for vehicles
sold in states outside of California and the CAA
section 177 states and without use of flexible-fuel
vehicle credits. In addition, EPA is currently
considering proposing “super credits” that could take
Options being considered for using those credits
include credit carry-back, credit carry-forward, credit
transfers, and credit trading. Because CAFE credits
can be carried back only 3 years under the Energy
Policy and Conservation Act (EPCA), EPA is currently
contemplating proposing a 3-year carry-back, too.
After offsetting any pre-existing deficits within a vehicle
category, remaining credits could be banked and used
in the 5 years after the year in which they were
generated. The agencies are also considering allowing
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the form of a multiplier that would be applied to the
number of vehicles sold such that they would count as
more than one vehicle in the manufacturer’s fleet
average. EPA is also considering allowing such credits
to be generated for years prior to MY 2012. Further,
EPA is considering an option for generation of credits
for employing technologies that achieve GHG
reductions that are not reflected on current test
procedures, such as solar panels on hybrids, adaptive
cruise control, and active aerodynamics.
vessels. The standards are equivalent to the NOX limits
and fuel sulfur standards adopted in recent
amendments to Annex VI to the International
Convention for the Prevention of Pollution from Ships.
The proposed standards, if finalized, would reduce
current NOX and PM emissions by 80 percent and 85
percent, respectively.
D. Renewable Fuels
On July 2, 2009, EPA extended the comment period
by 60 days on proposed revisions to the National
Renewable Fuel Standard Program (RFS2) that EPA
announced May 5, 2009. The regulations would
implement Title II of the 2007 Energy Independence
and Security Act that amends section 211(o) of the
CAA. The new law sets a modified standard for
renewable fuels increasing the national requirement to
9.0 billion gallons in 2008 and rising to 36 billion
gallons by 2022. Of the later total, 21 billion gallons
must be obtained from cellulosic biofuels and other
advanced biofuels. In addition, the proposed rule
would establish four categories of renewable fuels and
require some renewable fuels to achieve GHG
emission reductions compared to the gasoline and
diesel fuels they displace. For example, advanced
biofuels and biomass-based diesel must have lifecycle
emissions 50 percent lower than conventional fuels,
cellulosic biofuels must have 60 percent less, and corn
ethanol from new production facilities must have
20 percent less. EPA held a public hearing on June 9,
2009, on its proposed increase in renewable fuels, and
on Aug. 17, 2009, announced the availability of the
expert peer review record of the RFS2 lifecycle GHG
analysis (74 Fed. Reg. 41,359). Comments on the
proposed rule and lifecycle GHG analysis are due
Sept. 25, 2009. The final renewable fuels standard rule
is expected in November 2009, according to EPA’s
semi-annual regulatory flexibility agenda and semiannual regulatory agenda.
Compliance would replicate compliance protocols
associated with the existing CAA Tier 2 vehicle
emission standards and CAFE standards and would be
determined on a fleet-average basis at the end of each
model year. Penalties under the CAA are typically
determined on a vehicle-specific basis by determining
the number of a manufacturer’s highest emitting
vehicles that cause the fleet-average standard violation,
whereas penalties for violations of CAFE standards
are for the entire non-complying fleet at a rate of $5.50
times the number of vehicles in the fleet times the
number of tenths of mpg by which the fleet average
falls below the standard.
C. Ocean-Going Vessels
On June 26, 2009, the EPA administrator signed
proposed rules to tighten air emission standards for
ocean-going vessels. The proposed rule would control
emissions from new Category 3 marine diesel
compression-ignition engines with per cylinder
displacement at or above 30 liters, which are typically
the main propulsion engines on most ocean-going
vessels. The proposed standards would be phased in
with near-term standards beginning in 2011 and longterm standards beginning in 2016. The proposed nearterm standards would require more efficient use of
current engine technologies, including engine timing,
engine cooling, and advanced computer controls. The
proposed long-term standards would require the use of
high efficiency after-treatment technology, such as
selective catalytic reduction, to reduce NOX emissions
by 80 percent. EPA is also proposing to forbid the
production and sale of marine fuel above 1,000 ppm
sulfur within 200 miles of the U.S. coast and internal
U.S. waters and allow for the production and sale of
1,000 ppm sulfur fuel for use in Category 3 marine
V. NAAQS
A. CAIR
On May 12, 2009, EPA published a proposed rule
(74 Fed. Reg. 22,147) proposing to stay the
effectiveness of Clean Air Interstate Rule (CAIR) and
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the CAIR Federal Implementation Plan in Minnesota
while EPA conducts a notice-and-comment rulemaking
addressing the D.C. Circuit’s decision that EPA had
not properly addressed possible errors in the analysis
supporting the agency’s decision that Minnesota should
be included in the CAIR region for fine particulate
matter (PM2.5). Comments were due June 11, 2009.
Ambient Air Quality Standards (NAAQS) to protect
human health and the environment. EPA is reinstating
the Staff Paper, a key policy document created by
agency scientists that contains staff analyses of options
for the administrator to consider when setting air
quality standards. The Staff Paper will be made
available to the agency’s science advisors and the
public before the initiation of formal rulemaking. The
Bush administration had replaced the Staff Paper with
an advance notice of proposed rulemaking outlining
potential options for air quality standards in the
Federal Register. EPA Administrator Jackson is
retaining other changes made by the Bush
administration to the NAAQS review process,
including a public workshop early in the NAAQS
review and the restructuring of key science and risk
documents so that they are more concise and focused
on key scientific policy issues. Administrator Jackson
has also asked staff to consult with scientific experts in
other federal agencies that have responsibility for
public health and environmental protection early in the
review of each air quality standard and sent a letter to
the Clean Air Scientific Advisory Committee,
reaffirming its role in guiding the agency’s decision
making.
On Aug. 6, 2009, EPA published a notice of data
availability concerning Compliance Supplement Pool
(CSP) allowance allocations under the Clean Air
Interstate Rule (CAIR) Federal Implementation Plan
(FIP) (74 Fed. Reg. 39,315). Under the CAIR FIP,
EPA is administering the CAIR NOX Annual Trading
Program CSP for Delaware, Louisiana, Maryland,
Pennsylvania, and Wisconsin. The notice of data
availability and accompanying technical support
document set forth emissions data and other
information, including the CAIR CSP allowance
calculations for each individual unit and the resulting
allocation for each unit. Objections were due Sept. 8,
2009.
B. Transportation Conformity
On May 15, 2009, EPA published a proposed rule
(74 Fed. Reg. 23,024) proposing amendments to the
transportation conformity rule that primarily affect
implementation of transportation requirements in PM2.5
and PM10 nonattainment and maintenance areas.
Specifically, EPA is proposing to update the
transportation conformity regulation in light of the 2006
24-hour PM2.5 air quality standard and revocation of
the annual PM10 standard. In addition, EPA is
proposing to clarify the regulations concerning hot-spot
analyses to address a remand from the U.S. Court of
Appeals for the District Court of Columbia Circuit in
Environmental Defense v. U.S. EPA, 509 F.3d 553
(D.C. Cir. 2007). Comments were originally due
June 15, 2009, but a public hearing was requested and
EPA held a public hearing on June 4, 2009. On June 8,
2009, EPA extended the comment period to June 29,
2009 (74 Fed. Reg. 27,085).
D. New Reference Methods
In June and July 2009, EPA published four notices of
the designation of new reference methods and new
equivalent methods for monitoring ambient air quality
(74 Fed. Reg. 26,395, June 2, 2009; 74 Fed. Reg.
28,241, June 15, 2009; 74 Fed. Reg. 28,697,
June 17, 2009; 74 Fed. Reg. 38,184, July 31, 2009).
The reference methods include one for measuring
carbon monoxide (CO), three for measuring PM10-2.5,
and one for measuring of oxides of nitrogen (NOX) in
the ambient air. The new equivalent methods include
six for measuring PM2.5, two for measuring PM10-2.5,
one for measuring ozone, and one for measuring
concentrations of sulfur dioxide (SO2) in the ambient
air.
E. Filterable and Condensable PM
C. Process for Reviewing NAAQS
On June 5, 2009, EPA published an announcement of
the reopening of the comment period for the proposed
rule entitled “Methods for Measurement of Filterable
On May 21, 2009, EPA administrator Jackson called
for key changes to the process for reviewing National
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PM10 and PM2.5 and Measurement for Condensable
Particulate Matter Emissions From Stationary
Sources” that was proposed in the Federal Register
March 25, 2009 (74 Fed. Reg. 12,970). Comments
were due June 26, 2009.
Office is soliciting nominations of experts for EPA’s
Clean Air Scientific Advisory Committee (CASAC)
carbon monoxide review panel. Nominations were due
July 31, 2009.
H. NO2 NAAQS
F. Aerosol Coatings
On July 15, 2009, EPA published a proposed rule (74
Fed. Reg. 34,04) proposing to revise the NAAQS for
nitrogen dioxide (NO2), which is a proxy for measuring
all oxides of nitrogen (NOX). The proposed changes
are to the primary standard that protects public health.
Specifically, EPA is proposing: (i) to establish a new a
one-hour NO2 standard at a level between 80–100
parts per billion (ppb) based on the fourth highest of
1-hour daily maximum concentrations; (ii) to retain the
current annual average NO2 standard of 53 ppb; (iii) to
add NO2 monitoring within 50 meters of major roads
in cities with at least 350,000 residents; and
(iv) continue monitoring “area-wide” NO2
concentrations in cities with at least 1 million residents.
EPA is requesting comment on standard levels as low
as 65 ppb and as high as 150 ppb. EPA’s CASAC,
however, has recommended that the 1-hour standard
not exceed 100 ppb. This is the first time that EPA has
proposed to revise the NO2 primary NAAQS since
EPA first set standards for NO2 in 1971. EPA held two
public hearings in August 2009: one in Los Angeles and
one in Arlington, Virginia. 74 Fed. Reg. 34,290;
July 15, 2009. Comments were due Sept. 14, 2009. A
consent decree obligates EPA to promulgate a final
primary NO2 standard by Jan. 22, 2010.
On June 23, 2009, EPA published a final rule (74 Fed.
Reg. 29,595) amending the national reactivity-based
emission standards for the aerosol coatings category
under section 183(e) of the CAA. Based upon
petitions EPA received from regulated entities, the final
rule adds 128 compounds and associated reactivity
factors. EPA is also adding Chemical Abstract Service
numbers and chemical synonyms for selected
chemicals to make it easier to find a specific chemical.
The amendments clarify which volatile organic
compounds (VOCs) are to be counted towards the
product’s reactivity-based limit in compliance
determinations. Additionally, this final rule makes
certain changes related to the notice required for a
manufacturer, importer, or distributor to certify that it
will assume the responsibility for compliance with
recordkeeping and reporting requirements for a
regulated entity but does not adopt a certain format for
the certification notices. Examples of changes made
include a requirement that the certifying entity sign the
notice and send it to EPA and the regulated entity and
a requirement that certification notices include
identification of the products covered and the
location(s) where the records will be maintained. The
final rule also addresses which party is liable following
such a certification. Although the final rule allows a
manufacturer, importer, or distributor to assume certain
recordkeeping and reporting requirements from a
regulated entity, the final rule imposes joint liability
upon both the certifying entity and regulated entity for
the recordkeeping and reporting requirements covered
by a certification notice. The final rule extends the
deadline for submitting the required initial notifications
for 30 days until July 31, 2009. The final rule took
effect June 23, 2009.
I. Ozone Monitoring
On July 16, 2009, EPA published a proposed rule (74
Fed. Reg. 34,525) proposing to revise the ambient
monitoring network design requirements for ozone for
the purpose of implementing the revised 8-hour ozone
NAAQS that were promulgated on March 27, 2008.
Specifically, EPA is proposing to modify minimum
monitoring requirements in urban areas and add new
minimum monitoring requirements in non-urban areas.
With regard to urban areas, EPA proposes to revise
ozone design value triggers for the number of monitors
required in a metropolitan statistical area (MSA) in
light of the more stringent 0.075 ppb 8-hour ozone
NAAQS. In addition, EPA proposes to require an
G. Nominations for CASAC CO Panel
On June 30, 2009, EPA published a notice (74 Fed.
Reg. 31,74) that its Science Advisory Board Staff
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ozone monitor in any MSA with a population between
50,000 and 350,000 that lacks ozone monitoring data
within the past five years showing a design value of less
than 85 percent of the revised NAAQS or 0.064 ppm.
In addition, EPA proposes to require that each state
monitor at least three “non-urban sites.” EPA is also
proposing to change the length of the required ozone
monitoring season in some states. For Minnesota, for
example, the ozone season would be shortened by a
month. For many other states, the ozone season would
be extended from 1 to 5 months. Year-round
monitoring would be required at all NCore sites that
support multiple objectives, including air quality trends,
model evaluation, ecosystem studies, and assessment
of transport between urban and rural areas. Comments
were due Sept. 4, 2009.
J. CASAC Review of NO2 NAAQS
On July 16, 2009, EPA’s Science Advisory Board
Staff Office announced a public teleconference on
Aug. 10, 2009, of the Oxides of Nitrogen Primary
NAAQS Review Panel that CASAC established
under section 109(d)(2) of the CAA. The purpose of
the teleconference was for the CASAC panel to
provide comments concerning EPA’s proposed
revisions to the primary NAAQS for NO2.
K. Lead (Pb) Monitoring
On July 22, 2009, EPA announced that it would
reconsider ambient monitoring requirements for lead in
response to a petition for reconsideration filed in
January 2009 by Missouri Coalition for the
Environment Foundation, Natural Resources Defense
Council, the Coalition to End Childhood Lead
Poisoning, and Physicians for Social Responsibility.
EPA revised its lead monitoring requirements for lead
in 2008 when it revised and tightened the lead
NAAQS from 1.5μg/m3 to 0.15μg/m3, measured as
total suspended particles, for the first time in 30 years.
Currently, states are required to monitor for lead in
areas where any industry emits at least one ton of lead
to the air each year and in the 101 urban areas with
populations of 500,000 or more. On reconsideration,
EPA will consider whether additional monitoring near
industrial sources of lead is warranted and will also
review requirements that monitors be placed near
sources that emit one or more tons of lead each year
and requirements that monitors be operated in urban
areas of 500,000 or more. According to the Fact
Sheet, EPA anticipated issuing a proposed rule later in
the summer and a final rule in early spring 2010. EPA
also states in the Fact Sheet that the reconsideration
does not change the timeline for meeting the 2008 lead
NAAQS.
L. PM NAAQS Review
On July 31, 2009, EPA opened the public comment
period on the “Second External Review Draft
Integrated Science Assessment for Particulate Matter”
(74 Fed. Reg. 38,185). The Integrated Science
Assessment (ISA) contains the scientific basis for
EPA’s decisions on the adequacy of the current
NAAQS and the appropriateness of possible
alternative standards. The ISA replaced the Air Quality
Criteria document and contains a more concise,
integrated assessment of the policy-relevant science.
Comments were due Sept. 30, 2009.
M. Ozone Implementation Rule
On Aug. 11, 2009, EPA published a final rule (74 Fed.
Reg. 40,074) revising a portion of the Phase II 8-Hour
Ozone Implementation Rule concerning Reasonable
Further Progress (RFP) emissions reductions credits
outside ozone nonattainment areas (NAAs). The
Phase II 8-Hour Ozone Implementation Rule allowed
credits to be taken for emissions reductions from a
source outside the NAA provided the emissions from
these sources were included in the baseline for
calculating the percent reduction needed. Emissions
from other sources outside the NAA that did not
provide RFP credit for the NAA were not included in
the baseline. Credit could be taken for VOCs and
NOX emissions reductions within 100 kilometers (km)
and 200 km, respectively. The Natural Resources
Defense Council challenged the Phase II 8-Hour
Ozone Implementation Rule, including the RFP credit
provisions. The U.S. Court of Appeals for the District
of Columbia Circuit granted EPA a voluntary remand
of that portion of the Phase II 8-Hour Ozone
Implementation Rule which provided credit under the
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8-hour ozone RFP requirement for VOCs and NOX
emission reductions from outside a NAA. EPA has reevaluated its interpretation and is finalizing its regulatory
interpretation of the RFP provisions in the Phase 2
Rule to be consistent with its regulatory interpretation
of the RFP provisions in the PM2.5 Implementation
Rule published July 21, 2008 (73 Fed. Reg. 42,294).
To obtain RFP credit for emissions reductions outside
a NAA, state RFP assessments must reflect emissions
changes from all sources in this area. The state must
include all sources, not just some selected sources, for
the area providing emission reductions in the
calculation of the RFP baseline and the reductions
obtained that would be credited toward the RFP
requirement and the analysis of whether the reductions
from areas outside the NAA would contribute to
decreases in ozone levels in the NAA. If the state
justifies consideration of emissions reductions of one or
both of the ozone precursors from outside the NAA,
the state must provide separate information concerning
on-road mobile source emissions within the NAA for
purposes of transportation conformity. The final rule
takes effect Oct. 13, 2009.
“grandfathering” provision allows such sources to
continue to use U.S. EPA’s PM10 surrogate policy as
the basis for approving PSD permits for PM2.5. In its
letter of April 24, 2009, EPA indicated that it would
propose repealing the “grandfathering” provision for
PM2.5 in the federal PSD program.
VI. New Source Review
On June 1, 2009, EPA published a final rule (74 Fed.
Reg. 26,098) providing notice that by letter dated
April 24, 2009, the agency granted a petition for
reconsideration by National Resources Defense
Council and Sierra Club with respect to the final PM2.5
NSR Implementation Rule that was published May 16,
2008 (73 Fed. Reg. 28,321). In addition, EPA
announced an administrative stay of the
“grandfathering” provision for PM2.5 contained in the
federal prevention of significant deterioration (PSD)
program for a period of three months or until Sept. 1,
2009. On July 23, 2009, EPA published a proposed
rule (74 Fed. Reg. 36,427) proposing to extend the
administrative stay for an additional nine months or until
June 10, 2010. The “grandfathering” provision under
the federal PSD program applies to owners and
operators of proposed new sources and modifications
who submitted complete applications for a PSD permit
before the July 15, 2008, effective date of the PM2.5
NSR Implementation Rule published May 16, 2008,
but have not yet received their permit to construct. The
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