EPA Expected To Issue New & Revised Air Rules

EPA will be pursuing new and revised air pollution control regulations in President Obama's second term.

EPA

Revised Boiler MACT Rule

EPA is expected to release revisions to its control standards for hazardous air emissions from industrial boilers and process heaters. This rule was adopted in 2011 under requirements of the 1990 amendments to the Clean Air Act. It directs EPA to collect information on the best performing sources in each category and to determine the “maximum achievable control technology” (MACT) for each category’s new and existing sources. It set an aggressive schedule for these new rules, requiring EPA to adopt emissions standards for all of the source categories on the initial list within 10 years.

In March 2011, EPA adopted a MACT standard for new and existing large industrial boilers and process heaters, setting limits on emissions of mercury, dioxin, particulate matter, hydrogen chloride and carbon monoxide, applicable to boilers burning coal, fuel oil, natural gas, or biomass. Across the country, the rule applies to about 14,000 boilers and heaters at refineries, pulp and lumber mills, smelters, chemical manufacturers, auto and machine parts makers, glass makers, and other industrial operations, as well as large institutional facilities, like universities and hospitals. The rule also set limits on mercury and carbon dioxide emissions from smaller boilers, but only if they burn coal. The March 2011 version of Boiler MACT was just the latest attempt by EPA to set standards for emissions of hazardous air pollutants from industrial boilers and process heaters. EPA adopted a MACT standard for this source category in 2004, which was struck down by the courts in 2007.

The 2011 version of Boiler MACT proved just as controversial, and EPA responded to that controversy immediately. In the same Federal Register issue in which the final version of the rule was published, EPA also announced that it intended to reconsider fourteen specific issues related to the rule, and to take additional comment on those issues.[8]EPA received dozens of petitions to reconsider various aspects of the rule, and it was challenged in court. EPA’s reconsideration of the rule is now drawing to a close, and the Agency is expected to issue its final revisions to the rule before the end of the year. Further legal challenges almost certainly will follow.

In December 2011, EPA issued proposed changes to the Boiler MACT rule and invited comment on whether it should further revise a number of provisions of the rule, including whether several emission limits should be changed based on newly-provided data, whether EPA should draw additional distinctions between different types of boilers, whether to change certain tune up and work practice requirements, and whether to revise monitoring requirements. After considering further comments, EPA sent its final rule revisions to the White House for review last May. Clearance to issue the final rule is expected before the end of the year.

New Source Performance Standards for Power Plants and Refineries

EPA will also continue to develop two new rules addressing greenhouse gas emissions from power plants and petroleum refineries under the Clean Air Act’s New Source Performance Standards (NSPS) program. Under the NSPS program, EPA is required to establish performance standards for various categories of new and modified stationary sources.

The proposed rule would require coal- and natural gas-fired power plants to emit no more than 1,000 pounds per megawatt-hour of carbon dioxide – a standard that would effectively prohibit the construction of new coat-fired power plants unless they deploy carbon capture and sequestration (CCS) technology.

The Clean Air Act defines a “new source” as a source that has not yet begun construction by the date of a proposed NSPS rule, which in the case of the power plant NSPS is April 13, 2012.

The timing on the NSPS rules for refineries is less certain. Refineries will likely be subject to new greenhouse gas requirements by the end of President Obama’s second term.

Mercury and Air Toxics Standards for Power Plants

In December 2011, EPA finalized a controversial new rule – referred to as the Mercury and Air Toxics Rule (MATS) or Utility MACT – designed to reduce the emission of mercury and other toxic air pollutants from coal- and oil-fired power plants. EPA, however, subsequently agreed to reconsider the rule. Like Boiler MACT, this rule arises under section 112 of the Clean Air Act. The reconsideration process should be completed by March 2013.

EPA’s Utility MACT standard set aggressive numeric emissions limits for mercury, filterable particulate matter (as a surrogate for toxic metals), and hydrogen chloride (as a surrogate for acid gases). Coal-fired plants subject to the new rules generate about 45 percent of the nation’s electric power, and make up a higher percentage in some regions. The rules also apply to oil-fired plants, which generate about 1 percent of the nation’s electricity. EPA claims the new rules will reduce mercury emissions by 90 percent, acid gas emissions by 88 percent, and cut SO2 another 41 percent beyond reductions expected under the Cross State Air Pollution Rule.

Cross State Air Pollution Rule

EPA’s efforts to regulate the interstate transport of air pollution from power plants also remain in flux. In August 2012, the D.C. Circuit rejected EPA’s Cross State Air Pollution Rule (CSAPR or Transport Rule), which restricted air emissions from power plants in “upwind” states that resulted in air quality exceedances in “downwind” states. See D.C. Circuit Strikes Down EPA Cross-State Air Pollution Rules (Again), Marten Law Environmental News (Sept. 25, 2012). The Transport Rule was drafted to fix deficiencies in a 2005 rule (the Clean Air Interstate Rule or CAIR) that was struck down by the same court in 2008. The court found that the Transport Rule contained flaws similar to those in CAIR – namely, that the rule would, based on cost considerations, require certain upwind states to reduce in-state emissions by more than the amount of their actual contribution to air quality exceedances in downwind states. The court also rejected EPA’s decision to impose federal compliance plans (federal implementation plans or FIPS) on the states without first providing the states with an opportunity to develop state-level compliance plans (state implementation plans or SIPs).

The court vacated the Transport Rule and remanded the matter back to EPA. In the meantime, the court instructed EPA to continue implementing CAIR while the agency develops a replacement rule. The time period for seeking Supreme Court review will not begin to run until the court resolves EPA’s request for reconsideration.

Updating Ambient Standards for Particulates

Diesel engines and other combustion sources (which power not only motor vehicles, industrial facilities and electric power plants, but also wood stoves) are the main sources of soot and other fine particles in the ambient air. EPA classifies these pollutants as fine particulate matter, commonly referred to as PM-2.5, meaning particulate matter smaller than 2.5 microns.

On June 29, 2012, EPA proposed lowering the annual ambient air quality standard for PM-2.5 to a level between 12 and 13 micrograms per cubic meter (ug/m3). The current annual standard of 15 ug/m3 has been in place since 1997. EPA proposed to leave the existing 24-hour standard of 35 ug/m3 unchanged. EPA also invited comment on whether annual standard should be lowered further, to 11 ug/m3. The Agency is under a court-ordered deadline to finalize the PM-2.5 standards by December 14, 2012 (the Clean Air Act requires EPA to review ambient standards at least every five years).

Updating Ambient Standards for Ozone

In September, 2011, EPA submitted a proposed rule to OMB that would make the ambient air quality standard for ozone more stringent. After fairly intense lobbying from the business community, President Obama sent the standard back to EPA and told the Agency to update its review of the relevant science and come back to him with an updated proposal in two years.[18] See S. Brandt-Erichsen, Obama Administration Withdraws Proposed Ozone Standard, Marten Law News (Sept. 6, 2011). EPA has since been conducting its science review, and is expected to begin moving forward with an update to the ozone ambient standard in 2013, although final adoption may not occur until 2014.

Ozone is the primary constituent of smog. Sunlight and hot weather cause ozone to form in the lower atmosphere through a chemical reaction between nitrogen oxides and volatile organic compounds. The burning of hydrocarbons – as fuel for cars, power plants, and industrial facilities – is the most significant source of these precursors to ozone. (Marten Law)