Kansas Greenhouse Gas, GHG, Tailoring Rule

The Kansas Department of Health and Environment has proposed new air quality regulation K.A.R. 28-19-200a, regarding general provisions and definitions to implement the federal greenhouse gas (GHG) tailoring rule, and proposed amended air quality regulation K.A.R. 28-19-350, regarding prevention of significant deterioration (PSD) of air quality.

The proposed new regulation K.A.R. 28-19-200a and amendment to K.A.R. 28-19-350 will align State air quality regulations with the revised federal regulations for the Title V and PSD programs to implement the federal Title V GHG Tailoring Rule. The proposed regulatory actions incorporate the modified definition of ‘‘major source’’ and the new definition for ‘‘subject to regulation’’ in K.A.R. 28-19-200a to update the Title V program and update the adoption by reference of 40 C.F.R. 52.21 in K.A.R. 28-19-350 to align the state PSD program with the federal program.

These proposed regulatory actions are needed for the state of Kansas to retain the primary authority to implement the PSD and Title V programs and retain the ability to issue permits for both programs.

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EPA Declines Review of Greenhouse Gas Requirements in IEPA Permit

U.S. EPA's Environmental Appeals Board recently issued a decision concerning greenhouse gas requirements of air permits in Illinois. This case involved a petition for review filed by the Sierra Club challenging certain conditions of a prevention of significant deterioration (“PSD”) permit issued by the Illinois Environmental Protection Agency for construction of a synthetic natural gas manufacturing plant.

The Sierra Club raised several issues, including that the permit failed to regulate greenhouse gases. According to Sierra Club, greenhouse gases constitute "contaminants" causing or contributing to "air pollution" under IEPA rules. However, the Illinois EPA disagreed and made its case that IEPA does not interpret State rules as requiring regulation of greenhouse gas emissions.

The Board deferred to Illinois EPA's interpretation and rejected Sierra Club's argument. Because the IEPA had interpreted the disputed provision of its state SIP as inapplicable to greenhouse gases, and because this interpretation did not appear unreasonable, the Appeals Board declined to substitute its judgment for that of the IEPA and denied review of this issue.

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Texas Audit Program Option For Flexible Permit Holders

U.S. Environmental Protection Agency (EPA) has released its voluntary Audit Program to help companies in Texas with Flexible Permits obtain air quality permits that meet state and federal requirements and the protections of the Clean Air Act (CAA). The TCEQ's Flexible Permits program was never approved by EPA into the state implementation plan (SIP).

The Audit Program will offer a covenant from civil enforcement by the federal government, for instances where companies with Flexible Permits operated outside of federal requirements provided that companies agree to and complete the proposed audit program. In addition, companies who enter the audit will no longer be subject to EPA's use of Title V tools for permits issued that do not contain all CAA requirements.

The Audit Program is available for 90 days after publication in the Federal Register. Participants who sign up in the first 45 days can take advantage of a reduced penalty incentive for potential violations.

Under the program, a third-party auditor will conduct an independent review of operations, modifications, and permitting activities that occurred since the issuance of the flexible permit, so that the federally-applicable requirements can be identified for a new permit. These independent findings would be directly transmitted to the company and EPA and used to establish new limits in state-issued permits. EPA anticipates the audit process to take about one year.

The Audit Program requires participants to obtain federally-approved state permits from the TCEQ. A company would enter into a Consent Agreement and Final Order with EPA based on the findings of the third-party audit. This audit program and CAFO would resolve any New Source Review non-compliance issues that occurred while operating with the Flexible Permit provided that the companies complete the audit program.

The federal audit program is one of two paths available for companies to transition their flexible permits to a permit that meets federal and state requirements. EPA is also inviting companies to contact the EPA Region 6 Compliance Assurance and Enforcement Division if they are interested in more direct negotiations with EPA that would result in federally-enforceable permits and resolution of non-compliance and Title V uncertainty.

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Michigan General Permit for Diesel Generators Suspended

The Michigan Department of Natural Resources and Environment (MDNRE) General Permit to Install for Diesel Fuel-Fired Engine Generators has been suspended from use due to the new federal National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide (NO2). Any general permits previously issued for diesel-fired generators will remain in effect.

On January 22, 2010, the US EPA promulgated a final rule containing a new NAAQS for NO2 based on a 1-hour averaging time. On April 12, 2010, 188 µg/m3 became effective as the 1-hour NAAQS for NO2 . The applicability criteria and special conditions in the general permit for generators have been reevaluated by MDNRE to determine the impact of this new standard. Dispersion modeling was done for a hypothetical generator to determine the maximum ambient 1-hour N02 concentration. A representative building and various stack parameters were used and the modeling assumed the generator stack to be an isolated facility with no other sources considered in the analysis. All alternative stacks showed a total impact to be above the 1-hour NO2 NAAQS.

Because the current general permit for diesel generators does not limit NO2 emissions to adequately ensure compliance with the new 1-hour NO2 limit the permit is being suspended from use at this time. Until the general permit for diesel-fired generators is revised, a case-by-case permit to install pursuant to Rule 201 is being used for diesel-fired generators.

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Arizona PM10 Non Attainment Plan Disapproval Proposed

U.S. Environmental Protection Agency (EPA) has proposed disapproval Maricopa County’s air quality plan because it does not adequately control emissions of coarse particulate matter. The Maricopa area is considered in “nonattainment” for coarse particulate matter (PM-10) The nonattainment area is located in the eastern portion of Maricopa County and encompasses the cities of Phoenix, Mesa, Scottsdale, Tempe, Chandler, Glendale, and 17 other jurisdictions and unincorporated County lands. The nonattainment area also includes the town of Apache Junction in Pinal County.

The State of Arizona submitted a plan in 2007 intended to ensure that coarse particulate matter was reduced by 5% each year until the standard was attained. According to EPA, Arizona did not correctly inventory the sources of PM-10, resulting in a plan that does not satisfy the requirements of the federal Clean Air Act.

EPA is proposing to approve those elements of the plan that will help reduce air pollution in the County, including ones regulating leaf blowers, unpaved areas, burning and other sources of particulate matter.

The proposed EPA action will be published in the Federal Register for a 30-day public comment period. EPA expects to will make a final decision on the plan in early January 2011, after reviewing public comments.

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Reconsideration of Inclusion of Fugitive Emissions in NSR

EPA is proposing to reconsider the final rule titled, "Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reconsideration of Inclusion of Fugitive Emissions," published on December 19, 2008.

Through a letter signed on April 24, 2009, EPA granted reconsideration on a petition submitted by National Resources Defense Council (NRDC), as well as an administrative stay. In addition to the three-month administrative stay, EPA proposed and finalized an additional 18 month stay to allow enough time to propose, take public comment on, and issue a final action concerning the inclusion of fugitive emissions in the federal PSD program. The additional 18 month stay became effective on March 31, 2010. EPA will consider the petition for reconsideration, public comments, and information contained in the rulemaking docket to reach a decision on the reconsideration and finalize the rule, which is expected in March 2011.

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TCEQ New Source Review Program Rejected By EPA

U.S. Environmental Protection Agency (EPA) has issued formal disapproval of aspects of the Texas Commission on Environmental Quality’s (TCEQ) air emission permitting program that do not meet federal Clean Air Act requirements. EPA sought public comment on its proposed disapproval of New Source Review (NSR) program which was published in the Federal Register in September 2009 and considered comments in reaching its final decision.

EPA determined the revisions proposed by TCEQ’s New Source Review program did not meet federal Clean Air Act requirements. One example is the Pollution Control Project Standard Permit revision offered by TCEQ. The permit is designed to streamline permitting of changes within a plant but according to EPA lacked adequate review of impacts on total air pollution levels should the changes be approved.

In July 2009, the EPA and the Business Coalition for Clean Air (BCCA) Appeal Group, the Texas Association of Business, and the Texas Oil and Gas Association reached an agreement regarding the timing of federal review of regulatory changes to Texas’ air permitting program. EPA’s action is the latest in a series of actions under that agreement.

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