air

Senators Introduce Bill to Delay Stricter Ozone Rule

Senators Orrin Hatch, R-Utah, and Claire McCaskill, D-Mo., introduced a bill on Thursday under which state, local, and tribal governments may develop Early Action Compact (EAC) plans to achieve and maintain the National Ambient Air Quality Standards (NAAQS) for ozone.

“I’m concerned that the EPA will simply set an air quality standard for ozone that is unattainable for many Western states,” Hatch said. “This bipartisan legislation directs the EPA to implement a program that allows local communities to enter into voluntary cooperative agreements with the EPA to utilize locally crafted solutions to improve air quality so that they can comply with federal standards.”

The Senate Environment and Public Works Committee next week plans to hold a hearing on the Obama administration’s air agenda that will spotlight ozone.

In the House, Science, Space and Technology Chairman Lamar Smith (R-Texas) yesterday requested documents from the Obama administration related to review of the standard.

Background

On November 26, 2014, the Environmental Protection Agency (EPA) announced proposed revisions to the National Ambient Air Quality Standards (NAAQS) for ground-level ozone. If finalized, the proposal would set more stringent standards, lowering both the primary (health-based) and secondary (welfare-based) standards from the current 75 parts per billion (ppb) to somewhere in a range of 65 to 70 ppb. EPA faces an October 1 court-ordered deadline to finalize a new standard. EPA’s final limit is currently under review by the White House Office of Management and Budget.

Regardless of a change to the standard, many areas throughout the country are at risk of being designated as areas that are in “non-attainment” under the NAAQS.

In 2002, EPA initiated a program called the Early Action Compact (EAC) Program to make available an option that allowed for these areas to enter into a voluntary cooperative agreement with EPA to take early action to prevent a non-attainment designation and provide for cleaner air sooner than might have occurred by otherwise following the timelines in the Clean Air Act.

Thirteen of  the 14 areas that voluntarily opted into this program were successful in improving air quality and avoiding a non-attainment designation entirely. However, courts later found that EPA was outside its authority under the Clean Air Act to implement such a program and after that first wave from 2002-2007, EPA was not able to continue the program.

This legislation, without amending the Clean Air Act, would give clear authorization and direct the EPA to implement a similar program to the EAC so that other areas throughout the country can again have the option of taking early action to improve air quality and avoid a non-attainment designation.

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EPA to Offer Streamlined System for Self-disclosure and Penalty Mitigation

This fall, EPA will unveil eDisclosure, a web-based system to more efficiently receive and process compliance violations self-disclosed under its 2000 Audit Policy and Small Business Compliance Policy.

These policies offer penalty mitigation and other incentives for companies that discover, promptly disclose, and quickly correct environmental compliance violations and take steps to prevent future violations. While the new system will make reporting easier and speed the resolution process, the requirements of the audit policies will remain unchanged.

In general, to take advantage of the penalty mitigation under the audit policy, the following conditions must be met:

  1. Systematic Discovery (discovery of the violations through an environmental compliance audit or through an environmental management system review) – required for 100% penalty mitigation, otherwise only 75% mitigation
  2. Voluntary Discovery
  3. Prompt Disclosure – within 21 days of discovery
  4. Discovery, Disclosure Independent of Government/Third Party Plaintiff
  5. Correction and Remediation – within 60 days after discovery unless written agreement/order
  6. Prevent Recurrence
  7. No Repeat Violations – can’t have same or closely related violation at same facility within past 3 years
  8. Other Violations Excluded (serious actual harm, imminent and substantial endangerment)
  9. Cooperation

The portal will accept new disclosures involving almost all types of civil violations. Pre-existing unresolved EPCRA disclosures can be resubmitted through the eDisclosure system within 90 days after launch of the portal, but preexisting disclosures that are subject to audit agreements will be resolved outside the eDisclosure system through a Notice of Determination (NOD), Consent Agreement and Final Order (CAFO), or Consent Decree (CD).

To use the eDisclosure portal, reporters must: (1) register with the system; (2) promptly disclose their violations online within 21 days of discovery; and (3) submit an online Compliance Report certifying that any noncompliance was timely corrected. The Compliance Report is usually due within 60 days of submitting an initial online Audit Policy disclosure (or within 90 days for Small Business Compliance Policy disclosures), but limited reporting deadline extensions will be available in certain circumstances.

Compliance violation disclosures resolved through the portal will be resolved either as a “Tier 1” or “Tier 2” disclosure.

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FLASH: DC Circuit Court Denies States’ Motion to Stay CPP Deadlines

On September 9, 2015, the U.S. Court of Appeals for the District of Columbia Circuit denied an emergency petition filed by 15 states seeking a stay of certain deadlines in EPA’s new Clean Power Plan (CPP) Rule.

The CPP Rule establishes limits on carbon emissions from existing fossil-fuel, electric generating units under Section 111(d) of the Clean Air Act. The states’ petition sought an immediate stay of the deadlines in the CPP for states to submit compliance plans detailing how they would achieve the rule’s emission limit requirements. The states argued that they would suffer irreparable harm, including “significant unrecoverable costs and disruption to sovereign priorities,” if these deadlines were not immediately stayed.

The court concluded that the states’ petition did not satisfy “the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.”

Denial of the motion likely clears the path for implementation of the rule in the near term.

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FLASH: EPA Proposes Methane Standards for Oil & Gas Industry

USEPA proposed new methane emissions standards on Tuesday for the oil and gas industry.

As part of the proposal, the agency is updating the 2012 New Source Performance Standards (NSPS) to address methane as well as VOC emissions for sources covered in that rule. EPA’s proposal would also require that industry reduce VOC and methane emissions from hydraulically fractured and refractured oil wells. The proposal is also intended to reduce methane and VOC  emissions downstream from wells and production sites, covering equipment in the natural gas transmission segment of the industry that was not regulated in the agency’s 2012 oil and natural gas rules. Additionally, the agency proposes to clarify and streamline Clean Air Act permitting requirements in states and Indian country.

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