Air Issues

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• Link to County Air Quality page including the Mandatory ozone proposal - "Cutting Pollution Where it Counts"
• Alternative-Energy Quest Is Blocked by a 1953 Law 6/21/04
• Misrepresenting air quality 6/18/04
• A perspective on air quality
• The real bad news about region's air quality 6/10/04
• Businesses skeptical of proposed ozone regulations 6/4/04
• Lies and Air Quality Statistics, North Carolina Magazine, June Issue
• Harder drive for cleaner air 6/1/04
• Charlotte off top 10 list for smog 4/29/04
• Air panel proposes ozone controls 4/27/04
• EPA Issues Final Rule Revising Section 112(r) RMP Requirements
• Cabarrus, Rowan fail ozone test, 4/18/04
• Charlotte region put on ozone list, 4/17/04
• Nearly 500 U.S. counties receive EPA citations, 4/16/04
• Region slapped for air quality, 4/16/04
• Will growth sap region's quality of life? 4/14/04
• Smog-chasing plans lack money, unity
• Mecklenburg debates mandatory smog rules - Mecklenburg could be first to mandate pollution reduction
• Environmental, CMU and MCDAQ committee meetings consolidated
• Episodic emission ozone controls may be proposed
• North Carolina Asks E.P.A. to Force Others to Clean Air
• Report Gets NC Air Quality Wrong
• Barbecue May Play A Role In Davidson County Non-attainment Designation
• EPA Finalizes Four MACT Standards Including Risk-Based Exemptions
• New checklist for resubmitting risk management plans (RMP)
• Clean Air Act approaches 34
• EPA, in a reversal, will push NSR lawsuits
• EPA clarifies monitoring requirements for Title V air permits
• Supreme Court Upholds EPA Power To Overturn State Air Permit Decision
• EPA May Allow Industrial Boiler Operators to Join Interstate Air Quality Plan
• Mecklenburg off N.C. bad-air list
• Mercury/Interstate air quality rule proposals
• US Appeals Court Blocks New Source Review RMRR Rule
• Air construction (permit) bill advances in House
• EPA sued for not listing carbon dioxide emissions as a pollutant
• Air Construction Bill (S 485) a Focus of Attention
• Could Hydrogen Fuel Cells Widen Ozone Hole?
• Locke Foundation faults Lung Association's NC air quality rankings
• EPA Proposes New Ozone Non-Attainment Rule
• The NAM's Comments on the EPA proposed NSR Reform Program
• New Emission Standards for Non Road Diesel Engines
• NSR survives legal challenge - EPA hearing in Raleigh on routine maintenance exemption
• Smarter Enforcement Policies Desired

EPA Issues Final Rule Revising Section 112(r) RMP Requirements

Environmental Protection Agency Administrator Mike Leavitt signed a final rule making several changes to the reporting requirements of EPA’s chemical accident prevention regulations under section 112(r) of the Clean Air Act.

The rule is now available on EPA's Internet site but will become effective upon publication in the Federal Register, which is expected by April 9, according to the agency. The rule can be found at: http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/RMPS.htm?OpenDocument.

The final rule requires that, beginning June 21, 2004, chemical facilities subject to the accident prevention regulations submit information on any significant chemical accidents and any changes to emergency contact information on a more timely basis than previously required. Specifically, facilities who have an accident that meets the criteria for the five-year accident history must revise all elements of their RMP accident history (§68.168) and the date of investigation and expected date of completion of changes due to an accident investigation in their Incident Investigation data elements (§§68.170(j) and 68.175(l)) within six months of the date of the accident. In addition facilities will be required to correct their emergency contact information within one month of a change in the information.

The rule also immediately removes the regulatory requirement for covered facilities to include in the executive summaries of their risk management plans (RMPs) a brief description of the off-site consequence analysis (OCA) for their facilities.

In addition, the final rule also requires that, beginning June 21, 2004, covered facilities include three new pieces of information in their RMPs: the e-mail address for the facility emergency contact, the name, address and telephone number of the contractor who prepared the RMP, and the purpose of any RMP submission that changes or otherwise affects an earlier RMP submission. The rule also clarifies that the deadline for updating RMPs that were submitted before or on June 21, 1999, is June 21, 2004, except for those facilities required to update their RMPs as a result of changes at the facility.

Finally, EPA is making several related and other revisions to the format for submitting RMPs (RMP*Submit), including expanding the list of options for possible accident causes to include uncontrolled chemical reactions.  MCIC  April 9

Environmental, CMU and MCDAQ committee meetings consolidated

A proposal to combine the future meetings of CMU’s Wastewater and MCDAQ Air Committees with the Council’s Environmental Committee meetings was passed by the Environmental Committee on March 10.  Since virtually the same industry representatives attend all three meetings, this approach means that attendees only have to take off time from work one day per quarter instead of three and there will be no repetition of topics at the different meetings.  CMU and DAQ are in agreement with this arrangement.

Episodic emission ozone controls may be proposed

The Mecklenburg County Department of Air Quality (MCDAQ) is considering a mandatory episodic emission ozone control regulation.  The goal would be to decrease Mecklneburg’s “non compliance” days with ozone regulations.  Since the chief ingredients of ozone are vehicle emissions of NOx and VOC the regulation would be focused on vehicle usage.   This, of course, affects both business and individuals.

The mandate is still under development but the Environmental Committee looked at some of the preliminary ideas shared by DAQ.  The biggest concern was that there is not enough time to identify and attempt to address stakeholder concerns (especially those of landscape companies, general contractors, and businesses with drive through operations) prior to this year’s ozone season. 
 
A letter is being sent to MCDAQ expressing the Committee’s concerns on this proposal.  We are following this very closely and will keep you up to date.

North Carolina Asks E.P.A. to Force Others to Clean Air

N.C. Attorney General Roy Cooper has asked the U.S. Environmental Protection Agency to compel coal-fired plants in 13 states to reduce emissions that he says hurt air quality in the state.  Cooper says the plants are interfering with North Carolina's ability to meet national air-quality standards.North Carolina is invoking a little-used but powerful section of the Clean Air Act that allows states to ask the environmental agency to address pollution from out-of-state sources.

The plants identified in the petition are in Alabama, Georgia, Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. If the EPA determines the plants are contributing to North Carolina's difficulty in meeting federal clean-air standards, the plants will be required to reduce emissions, Cooper's office says.
The EPA has 60 days to respond to North Carolina's petition. If it grants the petition, the pollution sources must halt operations within three months unless the E.P.A. approves a plan that will bring them into compliance as quickly as possible.

Numbers can be interesting: according to EPA models the percentage of ozone-causing pollutants expected to blow into North Carolina from surrounding states on smoggy days in 2010 are

• South Carolina – 14%
• Georgia – 5%
• Virginia – 3%
• Tennessee – 2 %
• Maryland – 1%
  

Report Gets NC Air Quality Wrong

Environmental group misuses data on ozone pollution

An August 2003 report by the Surface Transportation Policy Project is garnering attention from policymakers and the news media despite the fact that it “clearly misleads the public” said John Locke Foundation Vice President Roy Cordato. “The study exaggerates the number of high ozone days in North Carolina and alleges a link between high ozone and asthma rates that does not exist.”

The STPP report, which takes aim at the Bush administration’s environmental policies and its “Clear Skies Initiative” to update the Clean Air Act, looks at air quality and asthma data on a state-to-state basis. Within each state it further breaks down this data by metropolitan area — and in doing so uses the technique adopted by other interest groups such as the American Lung Association. If one small town or village within a metro area registers high ozone on a given day, it is counted against the entire metro area.

For example, if the only place in the Triangle to register high ozone on a given day is the small town of Fuquay-Varina, the entire metropolitan area — including Raleigh, Durham, and Chapel Hill — is considered to have a high ozone day. Using this methodology STPP claims that for the years 1998 to 2002 Charlotte, the Triangle, and the Triad averaged 36, 20, and 24 high ozone days respectively per year.

But Cordato, vice president for research at the Locke Foundation, notes that this practice results in dramatic overstatements of public exposure to dangerous levels of ozone. “In reality, the average number of high ozone days for individual locations in these areas during this period were only 13, 10, and 8,” he said. “The STPP report exaggerates the exposure by between 100 and 200 percent.”

The study then goes on to list the percentage of adults diagnosed with asthma in nine of the state’s metropolitan areas, suggesting that these are related to the number of high ozone days. But Cordato actually compared the STPP’s own data on asthma and ozone and came to a startlingly different conclusion. “When the asthma data are compared to the number of high ozone days in each of the metropolitan areas, we discover a strong negative relationship,” he says. “That is, STPP’s higher asthma rates are consistently associated with cleaner, not dirtier air. This suggests that something other than pollution is responsible for the problem of high asthma rates.”

The pattern of misrepresentation has by now grown familiar, Cordato says.

“This most recent report is simply one more in a long line of studies produced by left-wing environmental groups, exaggerating the data and suggesting links to diseases that they never prove,” he concludes. “And all this flies in the face of data published by the EPA in June of 2003 showing reductions in all air pollutants including ozone, acid rain, carbon monoxide, and others over the last 20 years.”

Dr. Cordato has written extensively on ozone pollution and environmental trends over the years.  For more information about the Surface Transportation Policy Project and the real story on North Carolina’s environment, call Cordato at 919-828-3876.    rcordato@johnlocke.org 
 

Barbecue May Play A Role In Davidson County Non-attainment Designation

Lexington's beloved wood-smoked barbecue, local officials suspect, might have helped brand Davidson County this week as an air pollution hotspot, The Charlotte Observer reported Feb. 23.

North Carolina recommended Tuesday that Davidson County, 60 miles northeast of Charlotte, be named in violation of a federal fine-particle standard, along with the northern two-thirds of Catawba County. Both counties argue that monitoring stations are in the wrong locations, skewing air quality readings. State officials say they will investigate.

In Lexington, the self-proclaimed barbecue capital of the world, Smokey Joe's stands 200 feet away from the monitoring station. The restaurant burns hickory about three days a week, saucing the air with the sweet scent of sizzling pork. Could that smoke affect an air-quality reading? Some folks think so, said city public works director Rick Austin.

EPA Finalizes Four MACT Standards Including Risk-Based Exemptions

The Environmental Protection Agency (EPA) approved final rules in late February setting hazardous air pollutant emissions limits for four industrial source categories, including large industrial boilers. Two of the standards contain risk-based exemptions.

EPA is required under Section 112 of the Clean Air Act to set emissions limits for listed hazardous air pollutants at major sources. The limits are based on maximum achievable control technology (MACT) defined as the average performance of the best-performing 12 percent of sources in a source category.

The source categories covered by the new rules are:

• plywood and composite wood products;
• surface coating of automobile and light-duty trucks;
• industrial boilers, institutional and commercial boilers, and process heaters; and
• stationary reciprocating internal combustion engines.

The rules covering plywood products and industrial boilers will exempt certain low-risk facilities from the emission limits. EPA rejected risk-based exemptions for the reciprocating internal combustion engines rule and the automobile coating rule.

Under the risk-based approach EPA is providing alternative compliance options in certain cases where the risks posed by the emissions are very small. To qualify for these alternative approaches, the industrial source in question would have to demonstrate that the risks are small. Facilities that qualify for the alternative compliance options must assume federally enforceable emissions limitations. These limits ensure that their air toxics emissions do not exceed levels used to qualify for the compliance alternative.

The final industrial boiler MACT includes an alternative compliance option based on threshold emission limits for hydrogen chloride (HCl) and manganese. If an owner or operator demonstrates that their boiler units can meet health based threshold emission limits, then EPA will assert that those units do not pose a significant risk to human health or the environment.

The final rule provides three ways a facility may demonstrate that a boiler or process heater meets the threshold emission limits that allow it to qualify for the compliance alternative.

1. “Lookup tables” - listed in the rule and posted on the internet - allow facilities to use a limited number of site-specific input parameters to determine whether emissions from boilers or process heaters might cause a hazard index limit for non-carcinogens to be exceeded.

2. Facilities may demonstrate by modeling, using site-specific information that emissions of a combination of threshold pollutants such as HCl from the boiler or process heater under evaluation do not cause a hazard index limit to be exceeded.

(Note: Facilities that meet either of the first two alternative compliance tests would not be required to install scrubbers to control certain air toxics emissions. These boilers or process heaters may be required to install fabric filters to reduce particle emissions for a separate particle standard for boilers.)

3. Boilers or process heaters fueled by dried wood may, via a similar eligibility test, exclude emissions of manganese from their calculation of total metals emitted. This total is used to determine if particulate matter emissions controls are required. These units may still be required to install other emissions controls.

The final plywood MACT standard applies to facilities that manufacture plywood and veneer; particleboard; medium density fiberboard; hardboard; fiberboard; oriented strandboard; and engineered wood products. The final rule creates and removes from the list for air toxic control a subcategory of low risk facilities. The final rule puts eight specific facilities into the low-risk subcategory. However, the final rule sets forth provisions for additional facilities to opt into this subcategory.

Each facility that opts into the low-risk subcategory must demonstrate that its air toxic emissions pose risks below certain health effects thresholds. The facility has two options to qualify for the low-risk subcategory. Both options ensure that facilities in the low-risk subcategory meet the low-risk criteria of one in one million cancer risk and less than or equal to a hazard index of 1.0. Low-risk demonstrations must be submitted to EPA for approval.

The first approach allows facility owners or operators to use a limited number of site specific input parameters to demonstrate to EPA that their facility is low-risk. The second approach allows facility owners or operators to use a site-specific risk assessment to demonstrate to EPA that their facility is low risk. The site-specific risk assessment requires more effort, but produces results that are less likely to overstate risk.

The rule also finalizes amendments to the effluent limitations guidelines for four subcategories of the timber industry (40 CFR Part 429, Subparts B, C, D, and M). These amendments will exclude from the existing regulations wastewaters generated by specific air pollution control devices installed by facilities to comply with the final PCWP rule. Effluent limitations for process wastewaters generated by air pollution control devices discharged from these facilities will be developed on a case-by-case basis. The four rules will appear soon in the Federal Register. However, the text of the rules is available now from EPA at http://www.epa.gov/airlinks/airlinks1.html .  From MCIC

New checklist for resubmitting risk management plans (RMP)

The Environmental Protection Agency (EPA) has issued a new guidance document that provides a checklist for facilities preparing their 5- year update to their risk management plan (RMP) required under section 112(r) of the Clean Air Act. However, the February 2004 guidance reflects the current RMP requirements and not new data elements expected to be added by final rule next month.
Click on

In 1996, EPA established a list of extremely hazardous substances and issued regulations for the prevention and mitigation of accidental releases of those substances under section 112(r) of the Clean Air Act. Facilities covered by the regulations were required to implement a risk management program and submit a description of the program (called a risk management plan, or RMP) to EPA.

RMPs must be updated at least once every five years. The majority of facilities submitted their initial RMP's by the original June 21, 1999 deadline and have not resubmitted their RMPs since. This means that most RMP's must be fully updated and resubmitted by June 21, 2004.

The new fact sheet contains a checklist for preparing the 5-year update. Owners and operators responsible for RMP implementation should review this information and take appropriate steps to update their RMPs.The factsheet is available online (pdf format, 6 pages, 53KB) at:
http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/RecentAdditions.html.

Facilities should be aware, however, that EPA’s new guidance does not reflect new data elements expected to be added later this year.

In July 2003, EPA proposed to amend RMP reporting requirements in several ways, including the addition of several new data elements. EPA currently estimates that it will issue a final RMP rule in March 2004. EPA has stated that facilities that submitted their initial RMP by the June 21, 1999 deadline and have not resubmitted an RMP since will be required to include in their resubmission any new data elements added by the final rule. From MCIC

CLEAN AIR ACT APPROACHES 34

The nation's top scientific advisory group, the National Research Council, the research arm of the National Academy of Sciences, has issued an exhaustive report on the Clean Air Act, which will soon be 34 years old. The report identifies common ground as well as areas where the act could be improved without causing ideological warfare. It makes clear that the act has already done a world of good in reducing the pollutants that cause acid rain, smog and respiratory diseases, mainly by setting tough air quality standards that have in turn driven industry to develop new technologies.

The report also says the law's regulatory structure could be made clearer and more coherent. Pollutants, now regulated in isolation, could be grouped together so companies could devise more cost-effective strategies that apply to specific groups. They believe the federal government needs far more authority to regulate pollution that drifts across state lines. Ideas like these should be able to win bipartisan support, as should the panel's endorsement of the "cap and trade" strategy for cutting pollution, which would set national limits but allow companies to figure out the most cost-effective ways of getting there.

One sticking point remains: what to do about carbon dioxide emissions, which contribute to global warming. Present law does not address carbon emissions or, for that matter, warming, which was not an issue when the Clean Air Act was passed. Indeed, Congress, which requested the study, did not even ask the panel to address climate change. However, it was impossible to leave carbon dioxide out of the equation — should you ignore one pollutant while controlling the others? So the study recommended that carbon dioxide be included in any future clean air strategy.

EPA, IN A REVERSAL, WILL PUSH NSR LAWSUITS

Environmental Protection Agency (EPA) Administrator Mike Leavitt that the government will aggressively enforce the existing New Source Review (NSR) rule until the courts resolve a legal challenge to a new version of the rule. 

Leavitt said the Bush administration is confident that it will eventually prevail in the case, but in the meantime the EPA and the Justice Department will continue to prosecute seven or eight existing cases while bringing new actions against power plants and refineries.

The administration's decision to begin new enforcement cases, in addition to continuing those brought during the Clinton administration, marks a dramatic reversal of policy for EPA and Justice Department enforcement lawyers. On Nov. 5, the EPA's top enforcement official revealed plans to close pending investigations of 70 power plants and to consider dropping 13 other cases against utilities that had been referred to the Justice Department for action.

EPA CLARIFIES MONITORING REQUIREMENTS FOR TITLE V AIR PERMITS

The Environmental Protection Agency (EPA) issued a final rule Jan. 22 clarifying the monitoring requirements for the operating permits programs under Title V of the Clean Air Act and declining to adopt the changes to the regulatory text of the monitoring rules that were proposed on September 17, 2002.

Under the so called “umbrella monitoring” rules (40 CFR 70.6(c)(1) and 71.6(c)(1)), Title V air permits must contain monitoring to ensure that a facility is complying with its Clean Air Act requirements.
 
In the Jan. 22 final rule [69 Fed. Reg. 3201] EPA states that “notwithstanding the recitation in the umbrella monitoring rules of monitoring as a permit element,” the Agency has determined that “the correct interpretation of the umbrella monitoring rules is that they do not establish a separate regulatory standard or basis for requiring or authorizing review and enhancement of existing monitoring independent of any review and enhancement as may be required under separate provisions of the operating permits rules.”

Under EPA’s revised interpretation, an operating permit should first include monitoring as required by existing federal and state air pollution control requirements that apply to the facility. Examples include monitoring required by new source performance standards (NSPS), national emission standards for hazardous air pollutants (NESHAP), state implementation plan rules, and EPA’s compliance assurance monitoring (CAM) rule. Second, the permit should include monitoring required under EPA’s periodic monitoring rules.

Permitting authorities must then complete a review to determine if the monitoring required by these two applicable requirements is “periodic”. If it is not, they must use EPA’s periodic monitoring rules to fix the problem. In most cases, EPA states, monitoring in applicable requirements (e.g., NESHAP, NSPS) will be periodic and adequate.

The effect of the final rule will be that the umbrella monitoring rule will neither require nor authorize permitting authorities to create new monitoring in operating permits, apart from including in permits such monitoring as may be required under the periodic monitoring rules and under applicable requirements, including the CAM rule where it applies.

The Jan. 22 final rule reverses a Sept. 17, 2002 proposal to use the umbrella monitoring rules to require state and local permitting agencies to review existing monitoring and to enhance inadequate monitoring during the processing of the facility’s permit application. This would have been an additional requirement, separate from the “periodic monitoring rules,” which also require review and enhancement of monitoring.

EPA also said that the final rule was the first step in a four-step strategy for considering programmatic improvements to existing monitoring where necessary through rulemaking while reducing resource-intensive, case-by-case monitoring reviews and so-called “gap-filling” in title V permits. In addition, EPA said it intends to encourage States to improve monitoring requirements in certain SIP rules through guidance to be developed in connection with a separate rulemaking concerning the implementation of the national ambient air quality standards (NAAQS) for fine particulate matter to be published in the near term.

The EPA also intends to publish an advance notice of proposed rulemaking (ANPR) in the near term to ask for comments on inadequate monitoring in applicable requirements (in addition to any monitoring addressed in the fine particulate guidance and rulemaking) and on appropriate methods for upgrading such monitoring.

Finally, EPA expects to conduct a separate notice and comment rulemaking to address what types of existing monitoring are “periodic” under the periodic monitoring rules, and when the periodic monitoring rules apply, what types of monitoring satisfy the monitoring criteria contained in the periodic monitoring rules.
The full text of the rule is available online at: http://www.epa.gov/fedrgstr/EPA-AIR/2004/January/Day-22/a1362.htm.

Supreme Court Upholds EPA Power To Overturn State Air Permit Decision

The United States Supreme Court  has ruled  that the Clean Air Act authorizes the US Environmental Protection Agency (EPA) to overturn a State permitting decision when the EPA disagrees with the State’s determination of what constitutes Best Available Control Technology (BACT) under the PSD program. The case is Alaska Department of Environmental Conservation v EPA.

In the 5-4 decision the Court held that EPA may issue a stop construction order under the Clean Air Act (CAA) if the Agency determines that a State permitting authority’s BACT selection is not reasonable. The Court rejected the State’s argument that the CAA’s BACT definition unambiguously assigns to the State “permitting authority” alone the decision on the control technology qualifying as “best available.”

The case involved a dispute between Alaska and EPA over what constituted BACT in a PSD permit for a zinc mine. The EPA had delegated authority to Alaska under the State’s Implementation Plan (SIP) to issue PSD permits in lieu of EPA. Under the PSD program, Alaska determined that an emission control technology known as Low NOx was BACT for certain generators at the mine. EPA disagreed, saying that the State had not satisfactorily documented to EPA why a more stringent technology, selective catalytic reduction (SCR), was eliminated as BACT. EPA then issued orders to Alaska prohibiting the issuance of the PSD permit based on Low NOx as BACT.

The Supreme Court, by a 5-4 vote, held that Congress had vested EPA with the ultimate authority under the Clean Air Act to set aside the State’s BACT determination.

The four dissenting Supreme Court Justices argued that the decision undercuts states' power to control their environmental policies.
"This is a great step backward in Congress' design to grant states a significant stake in developing and enforcing national environmental objectives," wrote Justice Anthony M. Kennedy, joined by Chief Justice William H. Rehnquist, and Justices Antonin Scalia and Clarence Thomas.

"After today's decision, however, a state agency can no longer represent itself as the real governing body. No matter how much time was spent in consultation and negotiations, a single federal administrator can in the end set all aside by a unilateral order," Kennedy wrote.

Frank O'Donnell, head of the Clean Air Trust in Washington, said that activists, armed with the ruling, probably will try to find other possible cases in which states have allowed industries to backslide on pollution control measures.

The full text of the 61-page opinion is available online at: http://www.supremecourtus.gov/opinions/03pdf/02-658.pdf.

EPA May Allow Industrial Boiler Operators to Join Interstate Air Quality Plan 

EPA may allow industrial boiler operators and other industries such as cement kiln operators to participate in the proposed Interstate Air Quality Rule to cut nitrogen oxide and sulfur dioxide emissions from power plants by 70 percent by 2015. 

Bob Bessette, president of the Council of Industrial Boiler Owners, says representatives of several industries that use boilers have met with EPA officials to discuss possible outlines for such provisions. Jeffrey Holmstead, EPA assistant administrator for air and radiation, told BNA in early January the agency is working on a supplemental proposal to be unveiled in the spring that would provide "more specificity" to the interstate proposal signed last month by EPA Administrator Leavitt.

MERCURY/INTERSTATE AIR QUALITY RULE PROPOSALS

On Jan 30, the EPA proposed two rules to permanently cap and reduce mercury, nitrogen oxides (NOX) and sulfur dioxide (SO2).  Although targeted at the electric utility industry, these rules are of broad consequence to manufacturers as well because of the potential correlation to electricity and natural gas prices and implications for future regulatory and legislative actions. The NAM testified before the EPA on the proposed agency rules and backed final multi-emissions rules that provide electricity generators with the greater certainty they need to make investment decisions, which will lead to cleaner air and affordable power from a diverse fuel base.  EPA is taking comments until 3/30.  To view the rules, go to http://www.epa.gov/interstateairquality and http://www.epa.gov/mercury.   NAM 2/3

US Appeals Court Blocks New Source Review RMRR Rule

On Dec. 24, a federal appeals court stayed the effective date of EPA’s New Source Review (NSR) rule dealing with Routine Maintenance, Repair, and Replacement (RMRR) projects. The rule was scheduled to take effect Dec 26. The court, however, refused to revisit an earlier decision not to block the December 2002 NSR Rule.

The order, by a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, blocks the RMRR rule from going into effect until the legal challenge from the 14 states and cities is heard, a process likely to last months.

Under the RMRR rule, an equipment replacement activity automatically would be excluded from NSR requirements if:

• it involves replacement of any existing component(s) of a process unit with an identical or functionally equivalent component(s);
• the fixed capital cost of the replaced component, plus the costs of any repair and maintenance activities that are part of the replacement activity (such as labor, contract services, major equipment rental, etc.), does not exceed 20 percent of the replacement value of the entire process unit;
• the replacement(s) does not change the basic design parameters of the process unit; and the replacement(s) does not cause the unit to exceed any emissions limits.

Air construction (permit) bill advances in House

Following weeks of negotiations, business and industry have reached an agreement with the Governor’s Office, the N.C. Department of Environment and Natural Resources (DENR) and representatives of the major environmental groups on legislation that will allow industries to begin construction on expansions of their facilities prior to obtaining an air permit.

The compromise bill, just as proposed in the original bill, does not change any

air quality standard; does not allow a facility to operate without meeting all state and federal requirements and receiving all needed permits; and does not affect any federal requirement nor relieve any business from pre-construction or construction prohibitions imposed by any federal requirement. The bill does allow a business to go forward and begin construction or modifications to an existing facility at the same time the company is moving forward to finalize their permits.

“I am pleased that we were able to work out a compromise that will help business and industry move more quickly on projects, “ NCCBI Vice President Leslie Bevacqua said. “This will definitely give an advantage to companies in our state who want to expand their facilities. Working together the groups came out with a proposal that I believe will work to the advantage of businesses and at the same time assure the public that environmental concerns are being met.”  

As approved by the Senate Finance Committee on Wednesday, the bill limits construction at new facilities to clearing and grading; development of access roads, driveways, and parking lots; installation of underground utilities; and construction of accessory structures that are not part of the pollution control equipment such as fences and office buildings. A new facility can do these things without giving advance notice to DENR.

An existing facility is allowed to apply for permission from DENR to begin construction or modifications to the air pollution sources and/or pollution control equipment, before a permit is issued – subject to certain requirements. Requirements include 15-day notice to DENR and to the public. DENR is to review the information submitted by the applicant within the 15-day time frame and determine if it meets the following specified criteria: 1) has the facility been in substantial compliance; 2) will the modification or expansion result in emissions that are the same or similar to what is already being emitted from the site; 3) will the modification have a significant effect on air quality; 4) is the permit likely to be issued. If the department determines that all these criteria have been met, it must notify the applicant that construction may begin

The bill will be considered by the full Senate on Monday and will then proceed to the House.
NCCBI 6/23/03

EPA Sued For Not Listing Carbon Dioxide Emissions as a Pollutant

Top legal brass from three Northeastern states filed suit June 4 against the Bush administration's climate change policies, charging in federal district court that the U.S. EPA has failed to take the appropriate steps to list carbon dioxide emissions as a pollutant under the Clean Air Act.

State officials in Connecticut, Maine and Massachusetts said the suit, filed in Federal District Court in Hartford, is the first time that any state has sued the government to compel action on climate change.

If the suit succeeds, the United States Environmental Protection Agency will be required to classify carbon dioxide as a "criteria pollutant," under the Federal Clean Air Act, and that would trigger, the state's lawyers say, a process of setting standards for allowable levels in the atmosphere, as the federal government now does for ozone, lead and sulfur dioxide and other gasses.  MCIC 6/23/03

Air Construction Bill (S 485) a Focus of Attention

S 945 (Air Construction Bill) would allow an industry to begin construction on a new facility or expansion of an existing facility before a final permit is issued by the Department of Environment and Natural Resources Division of Air Quality.   The bill is now before the Senate Finance Committee

There has been concern among legislators whether it was premature to move the bill when the affected stakeholders had not reached a final agreement.  The affected stakeholders being industry and environmental groups.  They have urged the stakeholders to reach a compromise and it appears that the Finance Committee is waiting to hear the results of negotiation.

There were two days of discussion in the North Carolina Senate Committee on Agriculture, Environment and Natural Resource before it sent the bill to the Senate Finance Committee.

Prior to 2001 state regulators had allowed some construction prior to the issuing of permits. But it stopped the practice after a citizens group threatened to sue to stop an asphalt plant in Henderson County. The case prompted an opinion from the state Attorney General's Office that DENR had the authority to stop construction.  Last year business and industry sought legislation that while requiring companies to obtain an air quality permit before constructing or installing any equipment that emits air pollution would allow other construction to proceed before a permit is issued. Although both the House and Senate approved similar bills there was no agreement on a compromise plan which is why there is ongoing activity this year

During the discussions of the Agriculture, Environment and Natural Resources Committee supporters of the bill pointed out that the bill does not change any standard for permit review or air quality protection or make it any easier to obtain an air quality permit from DAQ (Department of Air Quality).   It allows facility construction to begin on a timely basis which in turn promotes economic development by allowing businesses to move forward on projects in an efficient, cost effective way and thus to be more competitive in the global marketplace.

A coalition of environmental groups urged the committee to reject the bill even though it has no negative impact on air quality. They argued that the bill allows more pre-permit activity than any other state in the southeast; shortens the notice to DAQ from 30 to 15 days, expands the types of pre-permit activity allowed and puts undue pressure on the DAQ to issue air permits.

The committee discussed whether the bill in its current form gives DENR enough safeguards to adequately protect the environment. A Department spokesperson told the committee that while there are safeguards in the current version of the bill, the Department was not prepared to say that those safeguards were adequate until the stakeholders reached final agreement on “how much construction would be allowed under the bill”.

During the discussion as to whether the bill would pressure DAQ to issue an air permit that DAQ would not have otherwise issued, the committee chair said he could not imagine that the DAQ would not follow the law. However, DENR’s spokesperson said that DENR  “can’t answer that question”.

DAQ told the committee that DAQ could live with a 15 day notice although “more days are better.”  Supporters and opponents agreed that the bill would allow some activity not allowed in other southeastern states.

The bill as sent to the Finance committee contains two minor amendments. The first is technical and removes an unnecessary reference to newspaper notice which is not required under this bill. The second amendment adds environmental organizations to the list of groups that the Secretary of DENR must consult in conducting the required study of the permit process.  6/18/03

Could Hydrogen Fuel Cells Widen Ozone Hole?

Widespread use of the hydrogen fuel cells that the administration has made a centerpiece of its energy plan might not be as environmentally friendly as many believe. Some scientists at Cal Tech say the new technology could lead to greater destruction of the ozone layer that protects Earth from cancer-causing ultraviolet rays. Researchers said that if hydrogen replaced fossil fuels to run everything from cars to power plants, large amounts of hydrogen would drift into the stratosphere as a result of leakage and indirectly cause increased depletion of the ozone.

The scientists have acknowledged that much is still unknown about the hydrogen cycle and that technologies could be developed to curtail hydrogen releases, mitigating the problem. But they say hydrogen's impact on ozone destruction should be considered when gauging the potential environmental downside of a hydrogen-fuel economy.

Fossil fuels — coal, oil or natural gas — produce chemicals that pollute the air as well as the greenhouse gas carbon dioxide. A hydrogen fuel cell, when making energy, releases only water as a byproduct.

However there is the possibility that if hydrogen fuel replaced fossil fuels entirely, it could be expected that 10 percent to 20 percent of the hydrogen would leak.  Because hydrogen readily travels skyward, its increased use could lead to as much as a tripling of hydrogen molecules — both manmade and from natural sources — going into the stratosphere, where it would oxidize and form water.

This would result in cooling of the lower stratosphere and the disturbance of ozone chemistry, It would mean bigger and longer-lasting ozone holes in both the Arctic and Antarctic regions, where drops in ozone levels have been recorded over the past 20 years. They estimated that ozone depletion could be as much as 8 percent.

An Energy Department spokesperson said the study will influence some of the government's fuel cell research, especially in areas of hydrogen transport and storage, adding the administration "welcomes new scientific knowledge on the potential effects of hydrogen production, storage and use." 6/18/03

Locke Foundation faults Lung Association’s NC air quality rankings.

The annual American Lung Association ranking of air quality is methodologically flawed, a new study from the Raleigh-based John Locke Foundation concludes. “Its reporting of data and detrimental health effects is misleading, and its grading system and rankings are meaningless.”

The new study is titled Ground-Level Ozone: Myth Facts and Reality, and examines all facets of the ground-level ozone issue, from its causes, to its effects on human health, to manipulation of the science by environmental pressure groups. Dr. Roy Cordato, the Foundation’s resident scholar and vice president for research authored the study.

The Locke Foundation study notes that the health effects of ground-level ozone are not as clear as the ALA study suggests. For example as part of his research Cordato examines the relationship between high ozone days in North Carolina and childhood hospital admissions. He concludes that “counties with the fewest high ozone days often have the highest hospitalization rates.

These results are exactly opposite of those suggested in the Lung Association report.” North Carolina’s Swain County, for example, receives an A in the 2003 report for its low ozone-exposure and yet has one of the highest rates of hospitalizations for childhood asthma in the state.

Cordato notes that “the ALA ignores all actual data relating ground-level ozone and asthma in favor of statistical projections and abstractions, which are easily manipulated.”

Cordato goes on to point out that the ALA report makes inter-county comparisons of ozone-exposure data without adjusting for the number of monitors in each county. “This method of reporting ozone is biased against counties with more monitors and renders all inter-county comparisons and rankings made by the ALA completely meaningless,” he said.

In addition, he argues that the ALA exaggerates the size of the population exposed to high ozone in each county by ignoring the actual location of the monitors. For example in previous State of the Air reports the ALA has included the entire population of Wake County as being exposed to high levels of ozone when only one monitor in rural Fuquay-Varina had registered poor air quality.

EPA Proposes New Ozone Non-Attainment Rule

A 5/14 EPA proposed rule would set new guidelines for state and tribal authorities to implement the 8-hour national air quality standard for ozone, first issued by EPA in 1997 and upheld by the Supreme Court in 2001.  The proposed rule seeks public comment on options for planning and control requirements for states and tribes, as well as on options for making the transition from the 1-hour ozone standard to the 8-hour standard. 

It describes options for classifying nonattainment areas; however, it does not make any attainment designations.  A nonattainment area violates the ozone standard or contributes to violations of the standard in a nearby area.  Designations for nonattainment areas will occur by 4/15/04 under a separate process. 

EPA will take comments on this proposed rule for 60 days following publication in the Federal Register.  It will also hold three public hearings on the proposed rule:  Dallas on 6/17; San Francisco on 6/19; and Alexandria, VA on 6/27.   5/20/03  NAM

The NAM’s comments on the EPA proposed  NSR REFORM PROGRAM

The NAM 5/2 filed public comments on EPA’s proposed rule on “routine maintenance, repair and replacement” under the Clean Air Act’s New Source Review (NSR) program. 

The NAM generally supports the proposed rule, but made recommendations on a number of issues, including the Annual Maintenance Repair and Replacement Allowance, Equipment Replacement Provision, efficiency exclusions and other items.

The NSR program affects 22,000 facilities around the country that form the backbone of the nation’s economy.  The complexity of the current NSR program and its related burdens create significant disincentives to new investment.  Over the years, NAM members have repeatedly called for sensible reforms.

The proposed rule will begin to remove the obstacles to environmentally beneficial projects, allowing facilities to simultaneously improve their energy efficiency, environmental performance and economic competitiveness.  The executive summary of the NAM’s comments follows:

Executive Summary
The National Association of Manufacturers (NAM) welcomes the Environmental Protection Agency’s (EPA) full public review and comment rulemaking on the New Source Review (NSR) program’s routine maintenance, repair and replacement exclusion.  The proposed rule will begin to remove the obstacles to environmentally beneficial projects, clarify NSR requirements, encourage emission reductions, promote pollution prevention, provide incentives for energy efficiency improvements and help ensure continued plant productivity and reliability.
 
The complexity of the current NSR program and its related burdens create significant disincentives to new investment in energy efficient and environmentally-friendly technologies and processes.  The proposed rule will help facilities make operational adjustments and needed maintenance and repairs to meet energy and product needs in the most efficient, cost-effective and environmentally-sound manner possible.  To help meet these goals, the NAM makes the following recommendations regarding the options presented in the proposed rule.
 
Annual Maintenance, Repair and Replacement Allowance
The EPA should promulgate an Annual Maintenance, Repair and Replacement Allowance (AMRRA) for the routine maintenance, repair and replacement (RMRR) exclusion.

The EPA should provide for the AMRRA to be applied on a multi-year or annual basis.

The AMRRA should be applied on a facility-wide or a process-unit basis.

The EPA should provide for the AMRRA to be set on an industry-by-industry basis and be based on any viable methodology at the option of the source (e.g., replacement cost, invested cost or invested cost adjusted for inflation).

Both of the EPA’s two options for the timing of the decision regarding qualification of activities under the AMRRA are acceptable.

The EPA should give facilities the option of whether pollution control and dual purpose equipment should be considered part of a process unit for purposes of the RMRR exclusion.

The EPA should exclude activities undertaken to address unanticipated forced outages or catastrophic events from the AMRRA.

Equipment Replacement Provision

• The EPA should promulgate an Equipment Replacement Approach to the RMRR exclusion.
• The EPA should provide in the final rule that the criterion for determining whether an activity qualifies under the equipment replacement provision is whether the replacement component is identical or functionally equivalent to the replaced component.
• The EPA should adopt the New Source Performance Standard (NSPS) 50 percent capital replacement threshold as the test for whether component replacements will fall within the scope of the equipment replacement provision.
• The EPA’s definition of “process unit” is generally acceptable as to what collection of equipment should be considered in applying the equipment replacement approach.
  Sources should have the option to identify whether pollution control projects and non-emitting components should be excluded from consideration under the equipment replacement provision.

General Recommendations

• The NAM supports the basic scope and framework of the ARRMA and the equipment replacement provisions and recommends that both options be promulgated by the EPA.
• The NAM urges the EPA to finalize both the ARRMA and the equipment replacement proposals expeditiously to provide much-needed certainty to industry, as well as to promote energy efficiency, increased productivity and improved environmental quality.
• The NAM highly recommends that the EPA pursue an efficiency exclusion to the NSR program.
• The EPA should adopt regulations providing RMRR status to all projects properly claimed as expenses on the income tax return of the company that owns the source in question.
• The EPA should maintain the case-by-case approach for those projects that do not fit with the AMRRA or equipment replacement provision.
• The EPA should improve the case-by-case approach.
• The EPA should not develop lists of excluded projects under a RMRR exclusion.

The NSR program affects 22,000 facilities around the country that form the background of the nation’s economy.  In the current economic climate, we need sensible reforms that streamline regulatory programs while providing fundamental environmental protection.  The proposed rule will allow facilities to improve their energy efficiency, environmental performance and economic competitiveness.

New Emission Standards for Non Road Diesel Engines

On April 15, EPA proposed new emission standards for certain nonroad diesel engines that will reduce particulate matter (PM) and nitrogen oxides (NOx) emissions more than 90 percent. The proposal would take effect for new engines starting as early as 2008 and be fully phased in by 2014.

The Agency is also proposing to reduce sulfur by more than 99 percent in the fuel these engines use. The sulfur content of diesel fuel will be dramatically phased down from its current uncontrolled level of 3400 parts per million to 500 parts per million (ppm) beginning in 2007 and then to 15 ppm in 2010 – a 99 percent reduction. The agency estimates the reduced sulfur in diesel fuel will be on average 2.5 cents per gallon for 500 ppm fuel and 4.8 cents per gallon for 15 ppm fuel. Costs range for cleaner engine technology, but the EPA estimates it would add about one percent to the cost of a new $230,000 bulldozer.

According to EPA, a typical piece of construction equipment such as a 175 hp bulldozer emits as much NOx and PM as 26 new cars today. EPA estimates that nonroad diesel engines currently account for about 44 percent of diesel PM emissions and about 12 percent of NOx emissions from mobile sources nationwide and in some urban areas the percentage is greater. The nonroad program would significantly help areas across the country reach their clean air goals and improve public health nationwide.

The Diesel Technology Forum, an industry group that represents manufacturers of engines, fuel and emissions control systems, did not fully endorse the plan and issued a release that highlighted reductions the industry has voluntarily made in reducing diesel pollution.

Written comments on the proposal may be submitted until August 20. Public hearings will be held in New York on June 10, Chicago on June 12, and Los Angeles June 17, 2003. Detailed information about the hearings will be published in the Federal Register. This proposal related documents and information about the public hearings are available at www.epa.gov/nonroad. MCIC 4/23/03

NSR survives legal challenge - EPA hearing in Raleigh on routine maintenance exemption

3/18/03 

Smarter Enforcement Policies Desired

One line of our Environmental Policy Statement reads “Protect Environment, Health and Safety through consistent, fair application of control”. Inconsistent, overly aggressive EPA enforcement policies are a major concern to manufacturers. At a recent Environmental Forum Breakfast of the NAM, J.P. Suarez, assistant. administrator of EPA's Office of Enforcement and Compliance addressed this and other issues.

Related Links

 

Charlotte Chamber of Commerce
330 S. Tryon St., PO Box 32785
Charlotte, NC 28232
(704) 378-1300