Principles of Air Quality Management - Chapter 9 pot

In addition to the State Implementation Plan SIP, local authorities in areas not in attainment of air quality standards are required to establish air quality management plans, which deta

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Fumifugium, Part II (1661)

Historically, a general law approach to air quality concerns has been taken Outrightprohibitions against certain activities generating air contaminants have been adoptedfor centuries, beginning as early as the 13th century (see Chapter 1) These prohi-bitions were for those actions that harmed, or that potentially harmed, the health orsafety of the citizenry At present, many international efforts are being attempted tocontrol criteria emissions, as well as hazardous air pollutants, utilizing treaties amongnations

GENERAL LAW APPROACHES

The legal framework for air quality management in the United States consists ofdual federal and state statutes; case law, including common law; and regulations.These laws and regulations are at the heart of our air quality management strategies,even as health and environmental effects are the justification for those laws andregulations

P UBLIC N UISANCE

One approach has been to allow for lawsuits as a result of public nuisance complaints

In general, public nuisance complaints, originally based on the principle of comfort to the sovereign,” have been among the oldest legal approaches used toabate air pollution emissions Today, these complaints are still used when odors oremissions occur that may affect more than one person Nuisance is defined in thecommon law as anything injurious, indecent, or offensive to the senses and thatobstructs or otherwise interferes with the free use or enjoyment of life or property The legal concept of a public nuisance, as developed in the common law, refers

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244 Principles of Air Quality Management, Second Edition

inflicted may not be equal Because a public nuisance is one that affects the munity at large, the attorney general of the state or other authorized governmentlegal representative must bring the action on behalf of the community

com-In certain states, a private individual who has been specially injured by a publicnuisance may bring an action for recovery of damages or for the abatement ofthe nuisance Therefore, these provisions have been used in some jurisdictions as alegal approach to combating excess cancer risks from noncriteria pollutants, withactions brought by both private individuals and government entities

P RIVATE N UISANCE

The private nuisance complaint, brought by a private individual who has beenspecially injured, stands in contrast to the public nuisance complaint A privatenuisance lawsuit is brought against the person causing it by a property owner andcovers anything that is indecent or offensive that interferes with the free usage ofproperty There is no requirement of particular or special injury, as in public nuisancecomplaints, but merely a showing that the defendant’s actions are causing theinterference with the free enjoyment of the owner’s property

Thus, a real property owner may bring an action for nuisance against the owners

of a neighboring industrial facility, factory, or any other business that emits fumes

or smoke The fumes, smoke, or particulate matter that waft onto the plaintiff’sproperty interferes with their use and enjoyment of the property

In public and private nuisance complaints, the available remedies for these types

of airborne nuisances would typically include injunctive relief

R ECENT A PPROACHES

Other approaches that are used to lower air emissions, and thus enhance the generalair quality, include taxation, land-use controls, source-specific emission standards,and standards based on health risk

Taxes do not abate or reduce emissions in and of themselves Instead, they form

an indirect (economic) approach in which, if the tax is too high, source owners willvoluntarily reduce emissions to avoid paying them

The control of land use, or zoning, is typically administered at the local county

or municipal level and attempts to separate sources of air contaminants from tors (people) by a distance sufficient for natural air dispersion and dilution to lowercontaminant concentrations to levels that will not generate a public nuisance Thiswas the solution advocated in Fumifugium in 1661 Fumifugium also suggestscontrolling growth, and thereby limiting emissions creation

recep-The backbone of current air quality management strategies has been the called command and control approach In this approach, specific mass emission ratelimitations are placed on sources Receptors experience lowered concentrations ofcontaminants and, therefore, better air quality

so-Indirect source controls attempt to change societal patterns or personal behavior(driving gasoline automobiles with only one occupant) that indirectly contribute to airemissions This change is generally accomplished by requiring employers to institute7099_book.fm Page 244 Friday, July 14, 2006 3:13 PM

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Air Quality Laws and Regulations 245

incentives for employees to use alternate transportation, to use ride-sharing, to shiftwork hours, to telecommute, or to stagger work days These incentives are assumed

to work by limiting the vehicle miles traveled in an area and thus to reduce mobilesource emissions

The most recent approach to individual source controls has been to evaluatehealth risks and to set, by regulation, acceptable levels of health risk for the receptors.Area or point sources are required to implement whatever controls or limitations onemissions are necessary to avoid exceeding established excess health risks Thesehealth risk–based approaches are primarily directed toward the noncriteria hazardousair pollutants

T HE P ROCESS OF R EGULATION

Within the U.S federal system of laws and regulations, with respect to air quality,there are specific procedures that must be followed

The initial step, of course, is the establishment of the laws governing air quality

In this system, elected officials adopt legislation, and, on signature by the chiefexecutive, the law takes effect The laws set direction and goals and identify thosebranches of government responsible for implementation The agencies involved aremandated to formulate specific regulations that implement the goals, outlines, andintent of the law

The process of implementing regulations is one in which the public has anopportunity to review, comment on, and influence such regulations In general,regulations identify the specific mandates of law and the particular problems andsources of those problems, such as air pollution The problem could be nonattainment

of a health-based air quality standard

R OLE OF THE P UBLIC IN R ULE M AKING

Draft regulations proposed by U.S government agencies are published in the Federal Register This is the federal government’s daily newspaper of all actions and activities

of a regulatory nature, along with relevant background information, sources, and so

on Draft regulations set time frames and dates for public hearings and providewritten comment on such regulations

Within the federal government, this is a process in which the proposed tions undergo public review in three stages These are the prerule, proposed rule,and final rule stages At each stage, the proposed regulation outlines its significanceand legal authority, mandated deadlines, abstracts of the regulations, entities affected,and responsible agency At each stage, the public is invited to comment on the draft

regula-or redrafted regulations Once a final rule has been published, a deadline fregula-or a finalpublic hearing is set, at which time the last public comments are received Followingthe close of public comment, the agency promulgates the new regulation in the

Federal Register At that point, the regulation is final and takes effect

The most recent emerging concept in rule making is that of the stakeholder Inthis vision, all potentially affected members of society are invited to participate atthe earliest possible time in any proposed regulation This concept is further advanced7099_book.fm Page 245 Friday, July 14, 2006 3:13 PM

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through the stated goals of the U.S Environmental Protection Agency (EPA) ing the implementation of environmental justice in its decision-making process

regard-E NVIRONMENTAL J USTICE

According to the EPA, the emerging concept of environmental justice refers to thefair treatment and meaningful involvement of all people regardless of race, color,national origin, or income with respect to the development, implementation, andenforcement of environmental laws, regulations, and policies The EPA states that

it has this goal for all communities and persons across the United States The goalwill be achieved, according to the EPA, when everyone enjoys the same degree ofprotection from environmental and health hazards and equal access to the decision-making process needed to have a healthy environment

L EVELS OF A UTHORITY

Historically, the levels at which air quality regulatory authority existed has varied Insome municipalities, attempts at air pollution control under local health departmentswere in effect before World War II The immediate post–World War II era saw a rapidincrease in the number of regional and statewide air pollution authorities, with varyingdegrees of responsibility With the establishment of the EPA in 1970 and the passage

of the first comprehensive federal Clean Air Act, and its successive amendments,the focus of air quality control authorities has been increasingly federalized.The EPA has nationwide authority in all areas of air quality management.Inaddition to setting air quality standards and maximum levels of emissions, the federalgovernment has been extensively involved in monitoring, research, and funding localprograms

Historically, states have possessed the widest possible latitude in regulating theirown environment However, constitutional interpretation requires states to defer tothe federal government when Congress makes a clear decision to preempt state lawsand set up a nationwide regulatory system Therefore, under federal environmentallaws, states have been given specific authority to implement their own air qualitymanagement programs

Enabling legislation at the state level is required to set up a statewide program

To enforce federal laws, state legislation must be adopted and approved by the EPA

to give federal enforcement authority to the state Otherwise, the federal government

is the enforcing authority

F EDERAL P REEMPTION

With respect to specific provisions, states must be at least as stringent, or in cases

of a waiver may be more stringent, in their regulations than the equivalent federalregulations and laws Because Congress has specifically provided for a nationwidescheme of regulating air quality, the federal preemption doctrine of the U.S Consti-tution mandates that any inconsistent state laws or regulations must be struck down However, states may also adopt their own ambient air quality standards andprovide for their own implementation plans They possess independent legal authority7099_book.fm Page 246 Friday, July 14, 2006 3:13 PM

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to manage air quality within their jurisdiction For example, California has its ownClean Air Act in the state’s Health and Safety Code In certain jurisdictions, there

is no permitting authority at the state level This may be delegated to local authorities

In addition to the State Implementation Plan (SIP), local authorities in areas not

in attainment of air quality standards are required to establish air quality management plans, which detail those activities and regulations that will demonstrate reasonablefurther progress toward attaining the ambient air quality goals Reasonable furtherprogress regulations are a part of the state implementation plan and are legallyenforceable as a part of the SIP at the federal level once they have been approved

by the EPA

In some areas, the regional or local air pollution control or management ities were the first government agencies regulating air pollution in their areas As aconsequence, many of these departments have a long history of air monitoring,regulations, emission standards, local enforcement, and permitting In general, theregional or local air pollution authorities carry the burden of day-to-day activitieswith respect to implementation of air quality legislative mandates and regulatoryrequirements of both federal and state agencies

author-Municipalities may also implement their own ordinances governing emissions

of air contaminants within their jurisdiction, provided they are not preempted by or

in conflict with other levels of government For example, before the 1990 Clean AirAct Amendments, some cities adopted local ordinances that banned emissions, oreven the use, of chlorofluorocarbons (CFCs) Frequently, the local governments thathave demonstrated the most environmental involvement are located in air pollution–affected areas However, the fact remains that every level of government may beinvolved in air quality management to a greater or lesser degree

FEDERAL LAWS AFFECTING AIR QUALITY MANAGEMENT

There are a number of laws that affect our approaches to air quality management.They include those that are media specific (water, solid waste) or that have an airquality component (toxic substances, nuclear materials) The former deal with someother aspects of environmental contamination that may have an effect on some aspect

of air quality The Clean Air Act and its predecessors are the most direct federallaws affecting air quality management

P RE -1990 A IR Q UALITY A CTS AND E FFECTS

Before the formation of the EPA in 1970, a number of federal laws dealt with airquality These laws primarily dealt with the criteria pollutants but did make attempts

to address noncriteria air contaminant issues A number of these major concepts weremodified and incorporated into the most recent amendments to the Clean Air Act.The primary national ambient air quality standards (NAAQS) for the six criteriapollutants are the driving force for federal regulatory action because of their knownhealth effects The NAAQSs are periodically reviewed and subject to change as moreinformation becomes available

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Implementation Plans

The concept of a SIP with federal oversight is the basic approach to air qualitymanagement SIPs are ongoing documents that provide a regulatory framework foreach state to demonstrate to the federal government that they are on a path to attainingand maintaining the national ambient air quality standards Plans for the states thatare not in attainment with those standards form a significant portion of each SIP.Federal law does provide for the preparation of a federal implementation plan bythe EPA if state implementation plans are not approved or are deficient

Clean Air Act §176(c)(1) requires that federal actions conform to applicablestate implementation plans for achieving and maintaining the NAAQS for the criteriaair pollutants To ensure conformity among the states, the EPA maintains the require-ment that all federal actions not have the effect of contributing to new violations ofair quality standards, increase the frequency or severity of existing violations, ordelay timely attainment of standards in the area of concern

Monitoring and Limiting Emissions

Monitoring ambient air quality and limiting emissions of criteria pollutants withineach air quality region are key requirements under all federal air quality legislationpassed since 1970 In general, these requirements are delegated to the respectivestates, as local agencies have a better understanding of the sources of contaminantsand are responsible for providing monitoring, inspection, and enforcement of airpollution laws

The federal government has in effect new source performance standards (NSPS)for new sources of criteria pollutants in specified industries These new sources arerequired to meet national emission standards The focus of the NSPS requirements

is criteria pollutant emissions from the largest stationary source categories in thecountry These include fossil fuel–fired electric utility generating plants, Portlandcement plants, nitric and sulfuric acid plants, petroleum refineries, asphalt concreteplants, secondary metal smelters, iron and steel plants, fertilizer plants, and so on.One of the dominant areas of federal authority in terms of performance standards

is the setting of “tailpipe” emission standards for motor vehicle emissions, as well

as overseeing fuels and additives for those sources This is in recognition of the factthat mobile sources emit the criteria pollutants NOx, carbon monoxide, and ozoneprecursor hydrocarbons

Prevention of Significant Deterioration

Federal regulations also require that the air quality does not deteriorate further inthose areas in which the air is already cleaner than the NAAQS Under the prevention

of significant deterioration (PSD) regulations, all the nation’s air quality controlregions with a NAAQS were divided into three classes of ambient air quality Class

I areas receive the highest degree of protection, with only a small amount of certainkinds of additional air pollution allowed In class I areas — primarily national parksand wilderness areas — few effects are allowed, and some types of nearby industrialdevelopment are severely restricted

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Mandatory federal class I sites are areas that may not be reclassified to class II

or class III These include international parks (such as Waterton Glacier InternationalPeace Park and Roosevelt-Campobello International Park), national wilderness areas,and national memorial parks larger than 5,000 acres or national parks larger than6,000 acres that were in existence (or authorized) on August 7, 1977 The 1990amendments to the Clean Air Act specified that acreage added to these areas after

1977 must also receive class I designation Therefore, in class I areas, only verysmall incremental increases of air contaminant concentrations are permitted Class II areas are those in which the air pollution is in excess of nationalstandards and in which different levels of incremental addition to existing air con-taminant levels are allowed In class II areas, limited amounts of new emissions areallowed, and in class III areas, greater amounts of new emissions are permitted Noclass III areas have been designated to date

The PSD program initiated the concept of new source review This concept isone in which limited degrees of incremental additional air pollutants are allowed inthe air quality regions Stationary sources are the focus For a major source to bebuilt, the new source in a PSD-regulated area was not allowed to increase the existingtotal emissions in that area Thus, the concept of offsetting emissions was established

In this approach, other emissions are required to be reduced at a ratio equal to orgreater than the anticipated new emissions before the construction of the new source

of air contaminants The allowable amounts were established using dispersion eling as a planning tool

mod-The concept of lowest achievable emission rate (LAER) was established foremission units in stationary sources LAER is the degree of emissions control that

is considered to be most stringent for a source in a nonattainment area and thatapplies to new or modified major sources The definition of major source or majormodification depends on the contaminant LAER is based on the most stringent ratecontained in any state implementation plan or the level of control achieved in practice

Emergency Episodes

In addition to those regulations at the federal level dealing with ambient air quality,the federal government was given the authority to deal with air quality episodessimilar to those seen in London, United Kingdom, following the winter of 1952.These include stringent limitations on operations, emissions, fuel use, and so on inthe event of federal air quality emergency levels (Chapter 3) being exceeded Area-wide shut-downs of industrial and commercial operations are also allowed underfederal emergencies

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Hazardous Air Pollutants

In addition to concerns for criteria pollutants, the federal government established

national emission standards for hazardous air pollutants (NESHAPs) The NESHAPregulations established nationwide standards for existing, modified, or new sourcesthat emit listed hazardous air pollutants (HAPs) These air contaminant emissionswere limited to certain specific industries that emitted those NESHAPs TheNESHAP concept was expanded on in the Clean Air Act Amendments (CAAA)

Global Concerns

The EPA was given the authority to regulate stratospheric ozone-depleting chemicals

in earlier versions of the Clean Air Act This was the first attempt at dealing withemissions of a global nature The focus was protection of the stratospheric ozonelayer, based on early research indicating a link between potential ozone destructionand the emissions of certain CFCs The power to regulate these emissions wassignificantly expanded on in the latest Clean Air Act Amendments

Federal Environmental Statutes

The federal government has the authority to regulate air emissions under a variety

of different federal laws in addition to the CAA These include other laws dealingwith operations or activities that may generate air emissions These are typicallyfugitive emissions such as volatile organic compounds or hazardous air pollutants,

as well as criteria contaminants such as particulates and NOx

Toxic Substances Control Act

The Toxic Substances Control Act was the first statute (1976) to deal with aircontaminant emissions of a hazardous nature, by its regulation of emissions ofpolychlorinated biphenyls (PCBs) Incinerators discharging air contaminants whileburning PCB and PCB-containing waste materials were required to meet a strictlevel of control efficiency The destruction and removal efficiency (DRE) for PCBs

in the exhaust gases had to be equal to or greater than 99.9999% This was based

on the total PCB mass input to the incinerator

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) deals with ongoing wastemanagement facilities that have an air emissions component or that deal with wastefuels The emissions from facilities handling waste materials may be fugitive as well

as direct or combustion-oriented for their air component

RCRA established specific standards for incinerators disposing of hazardouswaste by requiring, under the provisions of a trial burn (for the operating permit),that the DRE be equal to or greater than 99.99% for the principle organic hazardous compounds (POHC) identified in the waste materials In addition, a limitation onthe emissions of hydrochloric acid, particulates, and CO were established for theoperating permits for those RCRA incinerators

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Whenever any “corrective action” is required at a RCRA facility, the owner or

operator of that facility must deal with all air emissions occurring as a result of that

corrective action Such corrective action may include the decontamination of soil or

groundwater during a clean-up activity at the ongoing waste facility RCRA also

provides for injunctive relief in court to force former owners and operators to

remediate or take measures to reduce pollution

RCRA regulations also deal with air emissions from hazardous waste burned in

boilers and industrial furnaces (BIFs) For these rules, the facility must obtain a

permit under RCRA to burn such waste fuels With respect to organic emissions,

the boilers and industrial furnaces must meet the DRE standards of 99.99% for all

listed waste materials and their fuels, and a 99.9999% DRE for those wastes that

contain dioxin These boilers and industrial furnaces are also subject to emission

limits for certain heavy metals, HCl and chlorine gas, particulates (0.08 grains per

standard dry cubic foot at 7% oxygen), and carbon monoxide Although the majority

of the focus is on the air quality side, these are regulations under RCRA

There is the potential for multiple federal laws to be applicable in certain

situations, such as with regard to waste oils from refrigeration compressors in old

household appliances Because the compressor oil may contain CFCs or halogens,

it may be subject to both RCRA and the Clean Air Act

Comprehensive Emergency Response, Compensation, and Liability Act

Hazardous waste site clean-ups (where no current operator or owner exists) are

regulated under the Comprehensive Emergency Response, Compensation, and

Lia-bility Act (CERCLA), commonly known as Superfund The Amendments of 1986,

termed the Superfund Amendments and Reauthorization Act (SARA), further

clar-ified the requirements for such clean-up activity

Under CERCLA/SARA, all existing federal regulations for either NSPS or

NESHAPs must be met for any clean-up activity In addition, concerns for fugitive

emissions, monitoring of the air at the perimeter of the facility during clean-up

activities, emissions testing of sources during remediation, and public input must

be provided for during the implementation of site restoration

For a CERCLA/SARA clean-up action, federal authority preempts all local and

state regulations for air quality management; however, remedial actions must take

into account all local applicable, relevant, and appropriate regulations during

clean-up activities No permit is required for clean clean-up of a federal “sclean-uperfund” site, as the

remediation is carried out under the authority of the federal government The

ratio-nale is that because of the immediate health risk of hazardous waste, specific

regulations requiring long periods of time (such as permitting) are preempted by

federal authority

Considerable CERCLA litigation has been generated among the many Superfund

sites, for which many current and former owners and operators are being sued for

reimbursement by the EPA and by others for contribution CERCLA litigation

includes insurance coverage actions, due diligence actions, and prior owner, lessee,

and successors-in-interest liability lawsuits, all of which are intended to bring about

the cleanup of contaminated sites

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THE CLEAN AIR ACT

The Clean Air Act and its amendments introduced sweeping changes in the federal

approach to air quality management These amendments redirected the entire scope

of federal regulations with respect to criteria pollutants, hazardous air pollutants,

and global issues

There are 11 major titles to the CAAA The significant provisions are seen in

Table 9.1 These provisions deal with ambient air quality standards, changes in

mobile source regulations, hazardous air pollutants, acid deposition, federal permits,

stratospheric ozone protection, enforcement, and a number of miscellaneous

provi-sions In addition, the CAAA outlined a 20-year time frame for regulations to be

adopted to implement the act’s specifics These regulations are reviewed in the

following sections Key among these is the emphasis on attainment of ambient air

quality standards and the protection of public health and welfare

For each of the relevant titles, a synopsis of the significant major provisions is

provided below These synopses follow the specific titles of the amendments and

the major focus of each

TABLE 9.1 Significant Provisions of the Clean Air Act

Title Provisions/Focus

I Attainment and Maintenance of the NAAQS

Classification and attainment dates SIP revision

NOx requirements Multistate areas and sanctions

II Mobile Source Provisions

Vehicle emission standards Emissions control and compliance Fuel requirements

Nonroad engines Reformulated and oxygenated gasoline Clean fuels

III Hazardous Air Pollutants

Pollutant lists and source categories Emission standards and compliance schedules State programs

Shoreline deposition Special studies Prevention of accidental releases Risk assessment and management commission Solid waste combustion

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T ITLE I — A TTAINMENT AND M AINTENANCE OF THE NAAQS

The EPA in 1997 reviewed the NAAQS to account for new technology and standards

This review resulted in the EPA issuing two new standards, the Eight-Hour Ozone

Standard, which will replace the One-Hour Ozone Standard when areas demonstrate

compliance with the One-Hour standard, and a new standard, on fine particulate

matter, known as PM2.5 The final designation of attainment and nonattainment

areas was announced by the EPA on December 14, 2004 Seen earlier in Figure 3.3

are the ozone nonattainment areas as of that date

A recognition that the ambient air quality standards were not being met in a

timely fashion led to the major provisions of Title I In particular, these provisions

concerned ozone air quality, ozone formation, oxides of nitrogen and hydrocarbon

emissions, and the relationship of fuels and combustion to CO emissions

TABLE 9.1 (continued) Significant Provisions of the Clean Air Act

Title Provisions/Focus

IV Acid Deposition Program

SO2 provisions

NOx provisions Emissions documentation Clean coal technologies

EPA/state program interface Program requirements Permitting process Special provisions

VI Stratospheric Ozone Protection

Chemical lists and ozone-depletion potentials Reporting

Reduction and schedules Use, recycling, and disposal of chemicals Products made with ozone-depleting chemicals VII Enforcement Provisions

Administrative, civil, and criminal provisions Judicial review

Citizen suits VIII Miscellaneous

Outer continental shelf emissions sources Contaminated oil-ship fuel

Visibility and source/receptor concepts Interstate commission

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Title I classifies and assigns attainment dates for ozone, carbon monoxide, and

PM10 for different areas of the country For each classification, specific measures

for implementation and sanctions are outlined

Using the statistical metropolitan area Census Bureau tabulations, as well as the

air quality control regions, the EPA organized five classifications for those areas in

the United States that were not attaining the ozone standard, and two classifications

of nonattainment for both carbon monoxide and for PM10

The designations of classes range from “marginal” through “extreme”

nonat-tainment areas These classifications are based on the design value, which is the

fourth-highest contaminant concentration (usually ozone hourly average) monitored

anywhere within any one of those regions in a period of three consecutive years

On the basis of the design value, areas were classified and specific requirements

were listed in Title I for each of those areas

For each area, there are periods from 3 to 20 years from the date of enactment

by which the implementation of specific air quality management strategies and

regulations must be implemented and by which date the ambient air quality standard

must be obtained

Marginal areas for ozone included metropolitan areas that were to have achieved

attainment within 3 years of the applicable regulation As seen earlier, these marginal

areas are only slightly above the ambient air quality standard Moderate through

extreme classification areas were far enough above the ambient air quality standard

that significant air quality management strategies had to be implemented

Ozone Nonattainment Requirements

SIPs must be submitted to the EPA to demonstrate how each state will attain the

ozone standard by the deadline Nonattainment areas must achieve compliance with

the NAAQS by dates ranging from 2007 to 2021, depending on the severity of the

nonattainment air quality designation States will be adopting new regulations to

control ozone precursors and to extend controls into areas not previously designated

as ozone nonattainment

Deadlines for attainment of the 8-hour standard would be based on the amount

of time specified in the Clean Air Act Therefore, marginal areas would have 3 years

for attainment, moderate areas would have 6 years, serious areas would have 9 years,

severe-15 areas would have 15 years, severe-17 areas would have 17 years, and

extreme areas would have 20 years However, the Eight-Hour Ozone Standard will

come into effect only following compliance with the One-Hour Ozone Standard

For the moderate, serious, and severe areas of nonattainment for ozone, there

will be an increasing gradation of severity of measures required to meet the ambient

air quality standard The Los Angeles basin, as the single “extreme” area, is in a

class by itself For each of these areas, a series of mandatory changes to the State

Implementation Plans is required, depending on the degree of nonattainment In

each case, in moving from the moderate to the extreme cases, additional measures

are required

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Marginal Areas

For the marginal areas, accurate emissions inventories must be completed, new

source review requirements will be required on major NOx sources, and automotive

inspection and maintenance of mobile source control systems will be required Major

stationary sources of VOCs and NOx must submit inventories of emissions every year

An offset ratio for new stationary source emissions of at least 1.1 is required

(110% reduction) For each increase in VOC emissions, there must be an equivalent

115% decrease of emissions elsewhere under new source review regulations

Moderate Areas

In addition to the requirements for marginal areas, the moderate areas of

nonattain-ment must revise the state implenonattain-mentation plans to include, for mobile sources,

requirements for additional air pollution control, inspection and maintenance

pro-grams, and stage II vapor recovery systems during refueling (vacuum-assisted vapor

recovery at the nozzle) Contingency measures are to be included in the event that

these requirements fail to attain the required ambient air quality within the 6-year

time frame Reasonable further progress requirements for the moderate ozone areas

will include up to a 15% total VOC reduction in the entire area affected

For stationary sources of VOCs and NOx, the emission threshold for inclusion in

SIP revisions is defined as 100 tons per year for new and existing plants; 40 tons per

year is the emission threshold for increases during a modification of an existing facility

For control systems on the major sources, the reasonably available control

technology (RACT) is required for the existing major sources of VOCs and NOx

For new major sources or modifications of an existing major source, the LAER level

of control will be required For new source reviews, internal offset ratios of at least

1.0 are required External offsets (those found outside the plant boundaries) are

115% of the VOC increases at the new facility

Serious Areas

For the serious ozone nonattainment areas, mobile sources receive much greater

scrutiny These requirements include clean fuel programs for fleet vehicle owners,

transportation and congestion management plans or control measures for all mobile

sources, vapor recovery requirements for fleet owners during vehicle refueling, and

significantly enhanced inspection and maintenance procedures The latter procedures

require annual auto emissions testing, repair, and maintenance; provisions for denial

of registration for vehicles failing the test; and decentralized testing and certification of

onboard emissions control diagnostics systems and computerized emission analyzers

Reasonable further progress requirements include NOx and VOC reductions

The threshold levels (existing emissions) for VOC and NOx stationary sources are 50

tons per year for new or existing facilities and 25 tons per year for existing sources

Control levels required for those major new or modified stationary sources are

at the LAER, whereas for existing sources either RACT or BACT may be used

BACT applies in those cases in which a modified facility has no offsets for its

emission increases and when the total emission is less than 100 tons per year of

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VOCs The VOC offset ratios under new source review will be 120% for thosesources outside plant boundaries, but they will be 130% (or 1.3 to 1) for internalsources of VOCs

Severe Areas

In addition to all of the preceding requirements on mobile and stationary sources,those areas classified as severe nonattainment areas will see requirements for mobilesources to include total vehicle miles traveled reductions by the imposition oftransportation control measures As an additional measure of reducing mobile sourceemissions, Section 182(d)(1)(B) of the CAA allows the implementation of employer-based trip reduction programs that are aimed at improving the average vehicleoccupancy rates As an alternative to trip reduction programs, Section 182(d)(1)(B)also allows the substitution of these programs with alternative programs that achieveequivalent emission reductions

The VOC or NOx new source review threshold for all facilities becomes 25 tonsper year, and the control level becomes LAER for major new or modified sources.The VOC offset ratios under new source review are 1.3 to 1 for both internal andexternal reductions of emissions

Extreme Areas

Los Angeles, including the entire South Coast Air Basin in California, continues to

be the only extreme ozone nonattainment area As such, it is required to implementfurther controls on all sources For mobile sources, in addition to all of the precedingrequirements, there will be demands for new technologies, additional traffic controlmeasures during heavy traffic hours, and enhancement of all of the lower-levelrequirements Further contingency measures are required in the event that thoseactions fail These measures are to be included in the state implementation plan asmandatory requirements

The VOC and NOx threshold for the definition of a major source is 10 tons peryear for a new or existing facility, or any increase during modification of an existingsource

Additional controls are imposed on all combustion systems for boilers, and

“clean fuel” combustion or new and additional NOx emission controls are specificallyrequired The VOC offset ratios for new source review are 1.5 for external sources

or 1.3 for internal sources controlled at a given facility

Additional Ozone Strategies

Title I provides for a number of additional strategies to be implemented in all ozonenonattainment areas The first of these is the requirement that all of the plan provi-sions for stationary VOC sources also apply to major stationary sources of NOx,unless the EPA determines that additional NOx controls would not create a net

benefit, or for areas that are not a part of an ozone transport region.

Milestones

Milestones are required under Title I for serious, severe, and extreme nonattainmentareas to demonstrate that the applicable emission reductions have been met withinstated time periods In addition, for the areas that fail to demonstrate compliance7099_book.fm Page 256 Friday, July 14, 2006 3:13 PM

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with those milestones, there are additional requirements that the EPA adopt, or forcethe adoption, of an “economic incentive program” for those areas that fail to meetthose compliance demonstration requirements In addition, those areas may bereclassified up to the next higher classification or be required to implement controlmeasures adequate to meet the next milestone in emission reductions

Interstate Transport

Recognizing that certain geographic areas are specific sources of precursor inants leading to ozone nonattainment and that other areas may be merely thereceptor, Title I allows for the inclusion of a multistate area to be set up in whichthe included states must coordinate SIP revisions

contam-A specific ozone transport region and a commission for one region has beenspecifically required in the law Originally, 11 states and the District of Columbia(the number has since expanded) had to assess the degree of interstate transport andrecommend measures to the EPA necessary to ensure that the relevant SIPs meetthe plan requirements

Additional requirements for these states include enhanced vehicle inspection in

metropolitan areas of greater than 100,000 population, RACT levels of control inall sources of VOCs, and stage II vapor recovery controls during vehicle refueling.Stationary sources emitting at least 50 tons per year of VOCs are considered major

by this provision of Title I and are subject to all plan requirements applicable to atleast a moderate nonattainment area The EPA retains the right to oversee all activities

of the interstate transport region

Clean Air Interstate Transport

In 2005, the EPA announced a final rule to states in the area from North Carolinanorthward along the eastern Atlantic seaboard to Maine These 28 states and theDistrict of Columbia were found to contribute significantly to nonattainment of theNAAQS for fine particles or 8-hour ozone in downwind states The EPA is nowrequiring these upwind states to revise their SIPs to include control measures toreduce emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) The states have

2 years to revise their SIPs to include the required measures

Control Guidelines

The EPA has established Control Technique Guidelines (CTGs) for additional egories of stationary-source VOC emissions CTGs are used by state and localgovernments to identify requirements for VOC reductions These guidelines givepriority to those categories that make the most significant contributions to ozonenonattainment Best available control measures are required in these CTGs.Specific source categories addressed in the EPA’s CTGs pertaining to VOCsinclude surface coating of fabrics, cans, large appliances, metal coils, metal furniture,flat wood paneling, paper, and magnet wire; solvent metal cleaning; and surfacecoating of automobiles and light-duty trucks

cat-Consumer Products

Consumer or commercial products are required to be addressed by the EPA TheEPA must list categories of consumer or commercial products that account for at7099_book.fm Page 257 Friday, July 14, 2006 3:13 PM

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least 80% of the VOC emissions from such products in ozone nonattainment areasand must require best available controls

The EPA may control or prohibit by regulation the manufacture, sale, or duction to commerce of any product that is a source of VOC emissions In addition,the EPA may impose fees or charges or collect funds associated with the regulations

intro-of these products in addition to requiring labeling, self-monitoring and reporting,prohibitions, and limitations on these materials

Marine and Harbor Emissions

VOC emissions and any other pollutants from the loading and unloading of marinetank vessels in harbors in ozone nonattainment areas are the focus of additionalstandards that will require RACT for such emissions

Stationary Source Fees

In addition to all of the above, stationary sources in those areas classified as severe

or extreme that fail to achieve attainment by their respective deadlines will berequired to pay an annual fee to the state, beginning the year after the attainment date The baseline amount (“federal penalty”) begins at $5000 per ton of VOCs emittedduring a calendar year If the state fee provisions are not adequate in the SIP, theEPA may collect the unpaid fees Some states have enacted additional “emissionfees” to be imposed by local districts for each ton of VOC emitted in addition tothe federal penalty These fee provisions do not apply if the population is less than200,000 persons and the nonattainment area is a receptor of ozone transport.Additional sanctions against ozone nonattainment areas include prohibitions onhighway funding, withholding of air pollution planning or control grants, and arequirement that all emissions be offset by at least 2 to 1 for any increases undernew source review

Carbon Monoxide Nonattainment Provisions

The mandatory Title I provisions for CO nonattainment areas closely parallel many

of the provisions for ozone nonattainment The focus is combustion sources ofemissions, primarily from vehicular sources These provisions include restrictions

on vehicle miles traveled, submissions of accurate current inventories of CO sions, inspection and maintenance programs of mobile source control systems, cleanfuel fleet programs, and transportation control measures as required in the severeozone nonattainment areas, except that the program applies to CO

emis-Enhancements of each of the mandatory mobile source control requirements arerequired for the serious nonattainment areas For both the moderate and serious areas

of nonattainment, oxygenated fuels (reformulated gasoline) are required in all motorvehicle fuels during those times of the year that are considered to have high COconditions

The Reformulated Gasoline Regulations program took effect in 1997 The 2.7%oxygen weight minimum for oxygenated fuels’ control periods was not affected bythe rule, and it did not change the applicable oxygen standards under state oxygen-ated fuels programs

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If it is determined that stationary sources in serious areas contribute significantly

to CO levels, a major stationary source is defined as one that has the potential toemit 50 tons per year This source will be subject to major source requirements for

CO similar to those for ozone

In addition, an economic incentive and transportation control program will berequired for each state it fails to meet its milestone demonstration on time Theeconomic incentive program, when combined with other revisions in the SIP, mustreduce total CO emissions in the area by 5% each year until attainment Within thethree serious CO nonattainment areas, the oxygenated fuel requirement is a minimum

of 3.1% by weight, as required under this provision

Oxygenated Fuels — The Rise and Fall of Methyl-Tertiary-Butyl-Ether

The 1990 Clean Air Act required that those metropolitan areas with high COconcentrations use oxygenated fuels during the winter months Oil companies hadknown since at least the early 1980s that methyl-tertiary-butyl-ether (MTBE) wasthe best available additive for oxygenating fuels However, following MTBE’s wide-spread use as a fuel additive, in addition to its positive use in oxygenating fuels, thecompound was found to have several undesirable characteristics, which have sinceled to its replacement The additive, if spilled or leaked, tends to travel through soiland groundwater much more quickly than water It is also known to possess a foulodor and taste when small amounts are present in groundwater

Because of the widespread problem of leaking underground storage tanks,MTBE was released into groundwater in the areas where it was used as a gasolineadditive This is an example of how an additive used to help solve air pollutionproblems is now considered a groundwater pollutant This contamination has gen-erated litigation across the United States Plaintiffs allege that MTBE-mixed gasoline

is a defective product and that the oil companies failed to warn their customers ofthe negative aspects of MTBE This situation placed oil companies in the difficultposition of complying with the federal Clean Air Act in using oxygenates, and yetpotentially violating state laws

California, which is required to use oxygenated gasoline in all of its motorvehicles, banned the use of MTBE as an additive in gasoline in 2004 To fulfill legalrequirements, therefore, gasoline producers switched to ethanol, which satisfies theoxygenated fuel requirement, as the only remaining approved additive for its gaso-line There is a move, however, to lobby Congress to amend the CAA to eliminatethe oxygenated fuel requirement and replace it with a flexible national renewablefuels program It should be noted that because ethanol is a byproduct of corn, certainstates and their political representation that are heavily dependent on agriculturalconcerns would likely oppose any change in the oxygenated fuel requirements

PM10 Nonattainment Areas

Airborne particles less than 10 µm in diameter (PM10) are known to pose a healthrisk because they can be inhaled into and can accumulate in the respiratory system.Initially, all areas considered nonattainment for PM10 were classified as moderate.Upgrades to serious areas of nonattainment are provided for in Title I

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For those stationary area sources in the moderate areas, states must implement

a construction and operating permit program (if it does not already exist) for newand modified major stationary PM10 sources Remaining moderate areas for sta-tionary PM10 standards have been granted extensions to remain in compliance withthe CAA, and many have since been determined by the EPA to have attained thePM10 NAAQS in 2001

If a serious area does not reach PM10 attainment by the deadline, SIP revisionsmust be submitted that allow for an additional annual 5% emission reduction ofPM10 or PM10 precursor emissions in the area, as reported in the most recentinventory In addition, PM10 control measures for stationary sources also apply tomajor stationary sources of PM10 precursors

The EPA has issued technical guidance on what constitutes RACM and bestavailable control measures for urban fugitive dust sources, residential wood com-bustion, and prescribed agriculture and forestry-clearing burning operations

PM2.5 Nonattainment Areas

In 1997, the EPA established annual and 24-hour NAAQS for PM2.5 for the firsttime Particles less than 2.5 µm in diameter (PM2.5) are referred to as fine particlesand are believed to pose a large health risk because of their small size These fineparticles can lodge deeply into the lungs

The EPA issued official designations for the PM2.5 standard in 2004 and mademodifications in 2005 States must submit their SIPs to EPA within 3 years after theagency makes final designations in 2007

T ITLE II — M OBILE S OURCE P ROVISIONS

As seen in Chapter 4, transportation emissions by light-duty and heavy-duty vehiclesand trucks are among the most significant contributors to air pollutants In Title II,the CAAA details requirements for all aspects of new regulation over mobile sourceemissions These requirements relate to emission standards as well as to the fuelsused in those programs and vehicles The first of these requirements takes the form

of tailpipe emission standards, whereas the latter standards take the form of ments for fuel and fuel compositions

require-Light-Duty Vehicle Standards

Increasing percentages of light-duty vehicles must meet the standards as a function

of model year A significant new addition to the EPA requirement is that thesestandards be met for the initial 50,000 miles of travel and then, additionally, only aslightly higher level of emissions is permitted at the 100,000-mile mark Heavierweight trucks have different requirements Taken together, these new tailpipe stan-dards are estimated to reduce hydrocarbons about 40% and NOx by about 60% fromtransportation sources

Nonroad vehicle fuels and engines will be the focus of additional standards toachieve the greatest degree of emission reductions achievable Separate standardsfor new locomotives and the engines powering them have been in effect since 1995.7099_book.fm Page 260 Friday, July 14, 2006 3:13 PM

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