The article “Regional Reports: EPA Headquarters” by Gale Lea Rubrecht first appeared in the Air Quality Committee Newsletter, Vol. 12, No. 1,
June 2009, Section of Environment, Energy, and Resources, American Bar Association. © Copyright 2009. American Bar Association. All rights
reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in
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REGIONAL REPORTS:
EPA HEADQUARTERS
90 percent reductions in air toxics from diesel engines,
but can only reduce fine particle pollution (PM2.5) by
about 25-30 percent, whereas CDPF can reduce both
air toxics and PM2.5 from diesel engines and is effective
in reducing diesel soot (black carbon) at greater than
90 percent. In addition to installing and operating aftertreatment controls, owners or operators of nonemergency engines with a site rating greater than 300
horsepower would be required to burn ultra-low sulfur
diesel fuel. On April 14, 2009, EPA extended the
comment period, and comments are now due June 3,
2009 (74 Fed. Reg. 17,130). EPA is obligated under a
consent decree with Environmental Defense to
promulgate a final rule by Feb. 10, 2010.
Gale Lea Rubrecht
Jackson Kelly PLLC
Charleston, West Virginia
galelea@jacksonkelly.com
I. Air Toxics
On Feb. 27, 2009, EPA proposed national emission
standards for hazardous air pollutants (NESHAP) for
stationary reciprocating internal combustion engines
(RICEs) (74 Fed. Reg. 9698 (Mar. 5, 2009)). The
proposal would set emissions limits for engines that:
(i) are located at area sources of hazardous air
pollutant (HAP) emissions, or (ii) have a site rating of
less than or equal to 500 brake horsepower, are
located at major sources of air toxics, and were
constructed or reconstructed before June 12, 2006. In
addition, EPA is proposing emissions limits for nonemergency stationary compression ignition engines
greater than 500 brake horsepower that are located at
major sources and were constructed or reconstructed
before Dec. 19, 2002. EPA is also proposing to
amend the 2004 RICE NESHAP regarding operation
of engines during periods of startup, shutdown, and
malfunction. Owners or operators of existing engines
would be required to limit emissions of formaldehyde,
benzene, acrolein, and other air toxics by up to
90 percent and perform emissions tests to demonstrate
engine performance and regulatory compliance. EPA
contemplates that engine owners or operators would
meet the emission limits by installing “after-treatment”
controls. EPA expects that owners or operators of
existing “rich-burn” engines, which burn natural gas,
gasoline, or other fuels, would install a non-selective
catalytic reduction (NSCR) device to meet the
proposed limits on air toxics emissions. Options
considered by EPA for after-treatment control of
emissions from diesel engines include oxidation
catalysts (OC) and catalyzed diesel particulate filters
(CDPF). According to EPA, OC can achieve up to
On March 2, 2009, EPA Administrator Lisa P.
Jackson announced the U.S. EPA Schools Monitoring
Initiative to measure levels of toxic air pollution near
schools around the country. Less than thirty days later,
EPA announced a list of priority schools that will
undergo outdoor air monitoring.
On March 11, 2009, Toxic Release Inventory (TRI)
reporting changed when President Obama signed the
2009 Omnibus Appropriations Act which includes
provisions returning TRI reporting to the more
comprehensive reporting requirements that were in
effect before Dec. 21, 2006. The December 2006 TRI
Burden Reduction Final Rule expanded the use of
Form A or the short form for non-persistent
bioaccumulative, toxic (non-PBT) chemicals to
5,000 pounds and allowed use of Form A for the first
time for PBT chemicals under limited circumstances
(71 Fed. Reg. 76,932). States challenged the rule to
restore the TRI Form A thresholds and usage to what
they were before December 2006. On April 21, 2009,
and in response to the congressional mandate in the
2009 Omnibus Appropriations Act, EPA Administrator
Jackson signed a final rule reinstating the stricter
reporting requirements for industrial and federal
facilities that release toxic substances that threaten
human health and the environment. The new rule
modifies Form A eligibility provided for at 40 CFR
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§ 372.27 (alternate thresholds and certifications). For
PBT chemicals, this final rule eliminates Form A
eligibility and requires that reports on PBT chemicals
use Form R, which is the more detailed form. For nonPBT chemicals, the final rule authorizes the use of
Form A, which is the short form, only if the annual
reporting amount (the total of releases and other waste
management) is 500 pounds or less and the chemical
was manufactured, processed, or otherwise used in an
amount not exceeding 1 million pounds. This includes
releases and waste management activities which are
counted against the 500-pound threshold criterion. The
TRI reports for 2008 are due July 1, 2009.
will reduce mercury emissions by 81 percent. The
proposed rule would require compliance with the new
limits within three years after the final rule is published
in the Federal Register; that deadline is expected to
occur in 2013. Also starting in 2013, the proposed
amendments would remove an existing ban on the use
of fly ash from utility boilers. Existing rules ban the use
of fly ash from utility boilers if the mercury content of
that fly ash has increased as a result of certain utility
mercury emission controls, such as activated carbon
injection, unless a facility can demonstrate the use of
the fly ash will not increase its mercury emissions.
Because the amendments would address emissions
from fly ash through the proposed mercury emission
rules, there is no longer a need for such a provision,
and EPA is therefore proposing to remove it. For the
same reason, EPA is proposing to remove the
requirement to maintain the amount of cement kiln dust
wasted during testing of a control device, and the
provision requiring that kilns remove from the kiln
systems sufficient amounts of dust so as to not impair
product quality. EPA is also proposing to require
continuous emissions monitoring for mercury and to
remove all opacity standards for kilns and clinker
coolers because these sources will be required to
monitor compliance with the PM emissions limits by
more accurate means. Comments are due July 6,
2009. 74 Fed. Reg. 21,136 (May 6, 2009).
On March 19, 2009, EPA released the 2007 Toxics
Release Inventory (TRI) data. That data shows an
overall decrease of 5 percent in releases since 2006
and a decrease in air releases of 7 percent. The data
also shows that air emissions of mercury were down
3 percent.
On April 21, 2009, EPA announced a proposed rule to
reduce mercury emissions from Portland cement kilns.
Portland cement kilns grind and heat a mixture of raw
materials, including limestone, clay, sand, and iron ore,
to make a product called clinker, which is cooled,
ground, and then mixed with a small amount of gypsum
to produce concrete. In addition to reducing mercury
emissions, the proposed rule would also reduce
emissions of total hydrocarbons, hydrochloric acid,
and particulate matter from both new and existing
cement kilns. The proposed amendments would set
numerical emission limits for cement kilns that are
considered “major” and “area” sources of air toxics
emissions. “Major sources” of air toxics emit 10 or
more tons of a single air toxic air pollutant, or 25 or
more tons of a combination of air toxics. Sources
emitting lower amounts are known as “area sources.”
The proposed limits for mercury, total hydrocarbons,
and particulate matter would apply both to kilns that
are major sources of air toxics and to kilns that are
area sources. The proposed limits for hydrochloric
acid would apply only to major source kilns. The
proposed emissions limits for mercury, for example,
would be set at 43 and 14 pounds per million tons of
clinker produced, averaged over 30 days, for existing
and new sources, respectively. EPA estimates that rule
II. Climate Change
On Feb. 6, 2009, EPA announced it would reconsider
its decision denying California a waiver of preemption
for greenhouse gas (GHG) emission regulations for
passenger cars, light-duty trucks, and medium-duty
passenger vehicles beginning with the 2009 model year
(74 Fed. Reg. 7040 (Feb. 12, 2009)). The waiver
request was originally made by California on Dec. 21,
2005, and denied by the Bush administration on
March 6, 2008. President Obama directed EPA to
revisit the denial by a Presidential Memorandum signed
on Jan. 26, 2009. Meanwhile, on Jan. 21, 2009,
California sent a letter to EPA seeking review and
reconsideration of the denial of the waiver. On
May 19, 2009, President Obama announced tough
new nationwide rules for automobile emissions and
mileage standards, putting in place a federal standard
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counting as a result of applicability to both fuel
generators and emission sources, and the once in/
always in provision. The proposal would not provide
any early action emission reductions credit. EPA
intends to issue the final rule in November 2009, and
proposed metering, monitoring, and recordkeeping
would need to be in place by Jan. 1, 2010.
On April 15, 2009, EPA released the 2009 U.S.
Greenhouse Gas Inventory Report entitled “Inventory
of U.S. Greenhouse Gas Emissions and Sinks: 19902007.” The United States submitted the report to the
Secretariat of the United Nations Framework
Convention on Climate Change (UNFCCC) pursuant
to the UNFCCC International Treaty that the United
States ratified in 1992. The report concludes that in
2007 total U.S. GHG emissions were 7,150 million
metric tons of CO2 equivalent. The report further
concludes that overall total U.S emissions, which
include CO2, CH4, N2O, HFCs, PFCs, and SF6, have
risen by 17 percent from 1990 to 2007. The report
indicates that emissions rose from 2006 to 2007 by
1.4 percent. The report concludes that this increase
was the result of the following primary factors:
(i) cooler winter and warmer summer conditions in
2007 than in 2006 increased the demand for heating
fuels and contributed to increase in the demand for
electricity, (ii) increased consumption of fossil fuels to
generate electricity, and (iii) a significant decrease
(14.2 percent) in hydropower generation used to meet
this demand.
for fuel efficiency that is as tough as the California
program. The new rules will begin to take effect in
2012 and will impose the first-ever limits on climatealtering gases from cars and trucks. The new rules will
moot California’s request for a waiver.
On March 10, 2009, EPA issued its proposed
Mandatory Greenhouse Gas Reporting Rule (74 Fed.
Reg. 16,448 (Apr. 10, 2009)). The rule responds to
the Fiscal Year 2008 Omnibus Appropriations Act
signed by President Bush on Dec. 26, 2007. That bill
required EPA to propose a GHG reporting rule by
September 2008 and to finalize the rule by June 2009.
Because EPA missed the proposal deadline and cannot
meet the promulgation deadline, the agency has denied
requests to extend the comment period beyond June 9,
2009. The proposed rule would require reporting of
annual emissions of carbon dioxide (CO2), methane
(CH4), nitrous oxide (N2O), sulfur hexafluoride (SF6),
hydrofluorocarbons (HFCs), perfluorochemicals
(PFCs), and other fluorinated gases (e.g., nitrogen
trifluoride and hydrofluorinated ethers (HFEs)). The
proposed rule would apply to both upstream
production, including suppliers of fossil fuels such as
natural gas and coal mines, and downstream sources
such as power plants, as well as to manufacturers of
vehicles and engines. Reporting would be at the facility
level, except certain suppliers and vehicle and engine
manufacturers would report at the corporate level.
Under the proposal, some facilities, such as utilities and
refineries, would report their GHG emissions based on
the type of industry, whereas others, such as food
processing, would report based on thresholds of GHG
emissions usually 25,000 metric tons of CO2
equivalent. Individual facilities could be subject to
multiple subparts of the proposed rule. Once a facility
triggers the reporting threshold, it would always be
required to report its GHG emissions, even if its
emissions drop below the threshold. There would be
no phase-out or accommodation of production decline.
EPA expects that the rule would apply to less than fifty
farms. Existing facilities would report for calendar year
2010 and new facilities after Jan. 1, 2010, would
report beginning with the first month of operation. The
report for 2010 data would be due March 31, 2011.
No state delegation is contemplated. Concerns with
the proposed rule include the potential for double
On April 17, 2009, EPA issued a final report on the
potential impacts of climate change on regional U.S. air
quality. The report, entitled “Assessment of the
Impacts of Global Change on Regional U.S. Air
Quality: A Synthesis of Climate Change Impacts on
Ground-Level Ozone,” was the result of an effort by
the EPA Office of Research and Development’s Global
Change Research Program to increase understanding
of the multiple complex interactions between long-term
global climate change and air pollution in the United
States. Based upon modeling studies, the report
concludes that there is a potential for climate change to
make ozone pollution worse. The report also provides
a caveat that the science of modeling and atmospheric
chemistry for the purposes of understanding the
sensitivity of regional air quality to climate change is in
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water; (iii) decreases in water resources; (iv) decreases
in agricultural yield; (v) increases in the size and
number of forest fires, insect outbreaks, and tree
mortality; (vi) rearrangement of U.S. ecosystems;
(vii) ocean acidification; and (viii) exacerbation of
problems that raise humanitarian, trade, and national
security issues for the United States. The proposed
findings, if finalized, would not by themselves impose
any requirements on industry or other entities. Nor
does an endangerment finding under section 202 of the
CAA by itself automatically trigger regulation under the
entire Act. EPA published the proposed rule on April
24, 2009 (74 Fed. Reg. 18,886). Public hearings were
held May 18 and 21, 2009. Comments are due
June 23, 2009.
its early stages and that these uncertainties limit the
information that can be provided to support decisionmaking. Additional work will explore the modeling
uncertainties and extend the modeling to investigate the
climate sensitivity of additional pollutants, including
particulate matter and mercury.
On April 17, 2009, EPA issued proposed
endangerment and cause or contribute findings for
GHGs under the Clean Air Act (CAA). The proposed
findings respond to the decision of the United States
Supreme Court in Massachusetts v. EPA, 549 U.S.
497 (2007), finding that CO2 is an air pollutant
covered by the CAA. The proposal contains two
distinct findings: first, EPA is proposing to find that the
mix of six GHGs, i.e., CO2, CH4, N2O, HFCs, PFCs,
and SF6, endanger public health and welfare; and
second, EPA is proposing to find that the combined
emissions of CO2, CH4, N2O, and HFCs from new
motor vehicles and motor vehicle engines contribute to
the atmospheric concentrations of these key GHGs
and therefore to the threat of climate change. The
following “key scientific findings” are relied upon by
EPA in its proposal: (i) concentrations of GHGs are at
“unprecedented levels” compared to the recent and
distant past and these high concentrations are the
“unambiguous result of human emissions” and are very
likely the cause of observed increase in average
temperatures and other climatic changes; (ii) the effects
of climate change include more frequent and intense
heat waves, more severe wildfires, degraded air
quality, more heavy downpours and flooding, increased
drought, greater sea level rise, more intense storms,
harm to water resources, harm to agriculture, and harm
to wildlife and ecosystems; and (iii) on-road vehicles
regulated by section 202 of the CAA are responsible
for 24 percent of total U.S. GHG emissions, and more
than 4 percent of total global GHG emissions. For
health effects associated with elevated GHG
concentrations in the United States, the proposal
identifies the expected increases in (i) extremely hot
days and severe heat waves; (ii) regional ozone
pollution; (iii) severity of extreme events; and
(iv) climate-sensitive diseases, including tick-borne
diseases. For welfare effects, the proposal identifies
the (i) rise in sea level; (ii) diminished snowpack in the
western United States, affecting seasonal availability of
III. FY 2010 Budget Proposal
On May 12, 2009, EPA Administrator Lisa P. Jackson
testified before the U.S. Senate Environment and
Public Works Committee on EPA’s Fiscal Year (FY)
2010 Budget Proposal. The administrator announced
that President Obama has requested $10.5 billion to
fund EPA’s mission in FY 2010. This request
represents a 37 percent increase over last year’s
budget and is the highest-ever level for the agency. The
budget proposal includes $19 million to develop a
“comprehensive energy and climate change policy”
according to Administrator Jackson. The administrator
testified that this funding “supports design,
development, and testing the data management system,
developing guidance and training materials to assist the
regulated community, conducting industry-specific
workshops and developing source measurement
technologies for greenhouse gases.” The administrator
also testified that the budget provides funding to
develop “environmentally sound methodological
approaches needed to implement a possible cap-andtrade program, including offsets.” In her testimony, the
administrator promised to use the funds to develop
protocols to measure the effectiveness of offset
projects and provide advice on effective,
environmentally sound approaches to offsets. In
addition to the budget for energy and climate change,
the funding includes $55 million for an enhanced toxics
program to screen, assess, and reduce chemical risks,
and $3.3 million for air toxics research. The budget
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also supports improvement of risk assessment tools,
including National-Scale Air Toxics Assessment,
analytical support to states as they enhance air toxics
monitoring near selective schools, and five full time
equivalent (employment) positions in EPA’s Regional
offices to provide technical assistance and
coordination. The budget request contains $248 million
for grants to support state, local, and tribal air quality
management and radon programs. The agency will
continue its initiative to measure levels of toxic air
pollution near selective schools across the country. This
budget also includes $8.1 million for radon grants.
Finally, the budget proposal contains $600 million for
enforcement and compliance, which represents an
increase of $32 million from FY 2009 and the largest
enforcement and compliance budget in the agency’s
history.
V. New Source Review
The Obama EPA has delayed or granted
reconsideration of a number of new source review
(NSR) actions by the Bush administration. The NSR
Aggregation Amendments Rule that was originally
published on Jan. 15, 2009 has been delayed until
May 18, 2010 (74 Fed. Reg. 22,693 (May 14,
2009)). The original effective date was previously
delayed for 90 days until May 18, 2009 (74 Fed. Reg.
7284 (Feb. 13, 2009)). The rule describes when a
source must combine or aggregate nominally separate
physical changes and changes in the method of
operation for the purpose of determining whether they
are a single change resulting in a significant emissions
increase. The rule provides that sources and permitting
authorities should combine emissions when activities
are “substantially related.” The rule also adopts a
rebuttable presumption that activities at a plant can be
presumed not to be substantially related if they occur
three or more years apart. On Feb. 17, 2009, EPA
granted a petition for reconsideration of former EPA
Administrator Johnson’s Dec. 18, 2008 memorandum
on the applicability of the Prevention of Significant
Deterioration (PSD) Permitting Program to CO2. In
the Johnson memorandum, EPA concluded that the
term “regulated NSR pollutant” excludes pollutants for
which EPA regulations require only monitoring or
reporting but includes each pollutant subject to a
provision in the CAA or regulations adopted by EPA
under the CAA that requires actual control of
emissions of that pollutant. The memorandum therefore
concluded that the PSD program does not apply to
CO2. In addition to the NSR Aggregation Amendments
Rule and the PSD memorandum, EPA announced on
April 24, 2009, that it would reconsider three rules
under its NSR permitting program: (i) “Prevention of
Significant Deterioration in Nonattainment New Source
Review: Reasonable Possibility in Recordkeeping,”
(ii) “Prevention of Significant Deterioration in
Nonattainment New Source Review: Reconsideration
of Inclusion of Fugitive Emissions,” and
(iii) “Implementation of the New Source Review
Program for Particulate Matter Less Than
2.5 Micrometers (PM2.5).” The Reasonable Possibility
Rule (72 Fed. Reg. 72,607 (Dec. 21, 2007)) identifies
when a major source undergoing a physical or
IV. NAAQS
On March 12, 2009, EPA announced the availability of
the “First External Review Draft Integrated Science
Assessment for Carbon Monoxide” (74 Fed. Reg.
10,734). The draft document was prepared as part of
EPA’s review of the national ambient air quality
standards (NAAQS) for carbon monoxide. EPA is
seeking review of the draft document by the Clean Air
Scientific Advisory Committee (CASAC) and the
public. Comments were due May 8, 2009.
On April 15, 2009, EPA released for public review
and comment, and consultation with CASAC, a
planning document as part of its review of the NAAQS
for carbon monoxide (74 Fed. Reg. 17,490). EPA’s
Office of Air Quality Planning and Standards will
prepare a Risk and Exposure Assessment (REA)
focusing on human exposure, and possibly, risk
assessment. The document, “Carbon Monoxide
National Ambient Air Quality Standards: Scope and
Methods Plan for Health Risk and Exposure
Assessment,” describes the planned approaches for
conducting the quantitative assessments that will be
presented in the REA. Comments are due June 15,
2009.
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operational change not triggering major NSR
permitting requirements must keep records. The
Fugitive Emissions Rule (73 Fed. Reg. 77,882
(Dec. 19, 2008)) requires that fugitive emissions be
included in determining a physical or operational
change results in a major modification only for sources
in industries that have been designated through a
rulemaking under Section 302(j) of the CAA. This
action changed the 2002 rule which included these
emissions in determining whether a physical change at a
facility was a “major modification” and subject to NSR
requirements. The PM2.5 NSR Rule (73 Fed. Reg.
28,321 (May 16, 2008)) addressed several NSR
program requirements for sources that emit PM2.5 and
the pollutants that contribute to its formation. The rule
allows states with EPA-approved PSD programs to
continue to use PM10 as a surrogate for PM2.5 for up to
three years or until their revised SIPs are approved,
whichever is sooner. The rule also allows states to
exclude condensable particulate matter from NSR
applicability and emission control requirements until
Jan. 1, 2011, and allows interpollutant offset trading,
which allows reductions in direct PM2.5 to offset
precursor emissions increases, emissions reductions of
one precursor to offset emissions increases of another
precursor, and reductions in precursor emissions to
offset direct PM2.5 emissions increases. The rule
“grandfathers” permit applications that were complete,
before the rule’s July 15, 2008 effective date and that
relied on EPA’s PM10 Surrogacy Policy, so as to
continue reviewing the permit application using PM10
emissions as a surrogate for satisfying the new PM2.5
requirements. EPA has administratively stayed the
grandfathering provision for three months pending
reconsideration and announced it intends to propose
repeal of the grandfathering provision on the grounds
that it was adopted without public notice and is no
longer substantially justified in light of the resolution of
the technical issues with respect to PM2.5 monitoring,
emissions estimation, and air quality modeling that led
to the PM10 Surrogacy Policy in 1997.
allowances available for the spot auction were
125,000, and the allowances available for the advance
auction were also 125,000. All of the available
allowances were sold. The bid price for the spot
auction ranged from a low of $0.06 to a high of
$500.00. For the spot auction, the clearing price,
which is the lowest price at which a successful bid was
made, was $62.00. The bid price for the advance
auction ranged from a low of $1.03 to a high of
$200.00. The clearing price for the advance auction
was $6.63.
VII. Ships
On March 27, 2009, the United States submitted a
proposal to the International Maritime Organization of
the United Nations, requesting the creation of an
emissions control area (ECA) around the nation’s
coastline. In the proposal, the United States is
requesting a 230-mile buffer zone around the coastline
in order to provide air quality benefits that EPA asserts
will reach as far inland as Kansas. Under this program,
ocean-going vessels from around the world that
operate in ECAs will face stricter emissions
requirements than current standards. According to EPA
Administrator Jackson, “these standards will cut sulfur
in fuel by 98 percent, particulate matter emissions by
85 percent, and nitrogen oxide emissions by
80 percent from the current global requirements.”
Beginning in 2015, ships must use fuel with no more
than 1,000 ppm sulfur, and beginning in 2016 new
ships must use advanced emission control technologies.
The International Maritime Organization is expected to
begin reviewing the proposal in July, for approval as
early as next year. EPA plans the adoption of a related
CAA rulemaking process to be finalized in 2009.
VI. Trading
The 17th Annual Acid Rain Auction took place on
March 24, 2009. SO2 allowances were auctioned that
could first be used in 2009 as well as in 2016. The
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