U.S. EPA Proposes Revisions to Ozone NAAQS

In May 2008, states, environmental groups, and industry groups filed petitions with the D.C. Circuit Court of Appeals (Court) for review of the 2008 ozone standards.  In March 2009, the Court granted a U.S. EPA request to stay the litigation so that the Obama administration could review the standards and determine whether they should be reconsidered. On September 16, 2009, U.S. EPA announced that it would reconsider the 2008 National Ambient Air Quality Standards (NAAQS) for ground-level ozone. The 2008 ozone standards were judged to be not as protective as recommended by U.S. EPA’s panel of science advisors, known as the Clean Air Scientific Advisory Committee (CASAC).  On January 6, 2010, U.S. EPA proposed to strengthen the NAAQS for ground-level ozone, the main component of smog.  U.S. EPA’s proposal addresses both the primary and secondary ozone NAAQS. Comments will be accepted for 60 days following publication in the Federal Register.  U.S. EPA is also planning three (3) public hearings in Arlington, Virginia (February 2, 2010), Houston, Texas (February 2, 2010), and Sacramento, California (February 4, 2010).

The primary ozone standard, designed to protect public health, is proposed to be set at a level between 0.060 and 0.070 parts per million (ppm). The form of the primary standard was not reconsidered. The primary ozone standard is averaged over 8-hour periods. The 4th-highest 8-hour value at a particular monitoring location in the most recent year is averaged with the 4th-highest 8-hour value from the previous two (2) years to produce a 3-year average.  Compliance with the NAAQS is determined by comparing the 3-year averages to the NAAQS.

U.S. EPA is proposing to change both the secondary ozone standard and its form. The current secondary standard is equivalent to the current primary standard and is averaged in the same manner as the primary standard.  The proposed new secondary ozone standard is a seasonal standard designed to protect sensitive vegetation from adverse affects resulting from cumulative ozone exposure during the three (3) months when ozone exposure to vegetation is highest. The proposed new secondary standard will be set between 7 and 15 ppm-hrs.  The form of the proposed secondary standard is a cumulative peak-weighted index referred to as W126. The calculation of the W126 differs significantly from the calculation procedures for the primary standard.  To calculate the W126, individual hourly ozone measurements during each 12-hour daylight period will be “concentration-weighted,” with more weight assigned to higher concentrations due to disproportionate plant tissue damage at higher ozone concentrations. A cumulative daily value will then be calculated by adding the 12 hourly values, and a cumulative monthly value will be calculated by summing the daily values.  The cumulative ozone season value will represent the highest three (3) consecutive cumulative monthly values that occur during the ozone season.  Compliance with the proposed secondary ozone NAAQS will be determined by comparing the average maximum seasonal values over three (3) years.  The proposal rule can be viewed here.

In a related proposal on July 8, 2009, U.S. EPA proposed to revise the ozone air quality monitoring network design requirements. These proposed revisions would support alternative ozone standards including the proposed January 6, 2010 changes to the primary and secondary ozone NAAQS.  In that same proposal, U.S. EPA proposed to lengthen the required ozone monitoring season in many states to account for the tightened level of the revised NAAQS.

U.S. EPA Identifies Additional Industries for Possible Financial Responsibility

On January 6, 2010, U.S. EPA published an advanced notice of proposed rulemaking (ANPRM) in the Federal Register that identifies additional classes of facilities within three (3) industries for which it plans to develop proposed requirements for financial responsibility under Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The classes of facilities identified are in the Chemical Manufacturing industry (NAICS 325), the Petroleum and Coal Products Manufacturing industry (NAICS 324), and the Electric Power Generation, Transmission, and Distribution industries (NAICS 2211).  In addition, U.S. EPA identifies the Waste Management and Services industry, the Wood Products Manufacturing industry, the Fabricated Metal Product Manufacturing industry, the Electronics and Electrical Equipment Manufacturing industry, and facilities engaged in the recycling of materials containing hazardous substances for further study before deciding to develop financial responsibility regulations for facilities within these industries.

The ANPRM is not, by itself, a rule and does not propose or establish any requirements or obligations on any facilities.  U.S. EPA will examine the activities, practices, and processes involving hazardous substances at these facilities and other relevant information to evaluate the risks posed and determine whether financial requirements under Section 108(b) of CERCLA would reduce those risks.  Any financial responsibility regulations developed as a result of this analysis would be proposed in the Federal Register for public comment, and finalization of any proposed regulations would be needed before any facilities would be subject to the requirements.

For purposes of this ANPRM, U.S. EPA defines facilities within the Chemical Manufacturing industry as those involved in the transformation of organic or inorganic raw materials by a chemical process and in the formulation of products.  The facilities within the Petroleum and Coal Products Manufacturing industry are defined as facilities that transform crude petroleum and coal into usable products (e.g., gasoline, diesel fuel, asphalt base and coatings, heating oil, kerosene, and liquefied petroleum gas).  The facilities within the Electric Power Generation, Transmission, and Distribution industry are defined as establishments that may generate electric energy, operate transmission systems that convey the electricity to the distribution system, and/or operate distribution systems that distribute electric power to consumers.

Section 108(b) of CERCLA states that the level of financial responsibility shall be established “to protect against a level of risk which the President in his discretion believes is appropriate…”  To select the classes of facilities for the ANPRM, U.S. EPA used information on facilities from the National Priorities List (NPL), data on hazardous waste generation from the 2007 Resource Conservation and Recovery Act (RCRA) Biennial Report, and data from the Toxics Release Inventory (TRI).  Factors that U.S. EPA considered in its analysis include the amounts and toxicity of hazardous substances released to the environment, the existence and proximity of receptors, historic contamination from facilities and whether the causes of this contamination still exist, experiences and projected costs of Federal clean-up programs, and corporate structures and bankruptcy potential.

Any new financial responsibility regulations proposed and finalized as a result of U.S. EPA’s analysis would require facilities to establish and maintain evidence of financial responsibility consistent with requirements intended to determine the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.  Facilities must demonstrate their financial responsibility by one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer.  Facilities may not have to post the final total amount of financial responsibility required all at once, but may be allowed to do it incrementally with annual increases over a period of no more than four (4) years.  The level of financial responsibility is also adjusted annually, as appropriate.

The need to estimate and demonstrate financial responsibility would impact a company’s balance sheet and cost of doing business.  Facilities within the industries identified by U.S. EPA in this ANPRM should watch closely for additional information that will provide opportunity to participate in the rule development process, comment on proposed regulations, and ultimately prepare for any final financial responsibility requirements that become applicable.

U.S. EPA Proposes Revisions to Ambient Lead Monitoring Network

On October 15, 2008, U.S. EPA revised the National Ambient Air Quality Standards (NAAQS) for lead from 1.5 micrograms per cubic meter (µg/m3) to 0.15 µg/m3, measured as total suspended particles (TSP).  In January 2009, U.S. EPA received a petition to reconsider the lead monitoring requirements from several non-governmental organizations (NGOs).  On July 22, 2009, as a result of the petition, U.S. EPA announced that it would reconsider portions of the ambient monitoring requirements for airborne lead.   On December 23, 2009, U.S. EPA proposed to revise the ambient monitoring requirements for measuring airborne lead.  These rule amendments are envisioned to improve the lead monitoring network to better assess compliance with the revised NAAQS. 

The October 2008 lead NAAQS included revisions that were intended to improve the ambient lead monitoring network.   The final rule included provisions to add stationary source oriented monitors near sources with reported National Emissions Inventory (NEI) actual emissions of lead of greater than one (1) ton per year (tpy) and to place new monitors in each Core Based Statistical Area (CBSA) with a population of 500,000 or more people.  U.S. EPA had originally estimated that 236 new or relocated monitoring sites would be needed to meet the October 2008 monitoring requirements.

U.S. EPA is now proposing to change the stationary source oriented lead emissions monitoring threshold to 0.50 tpy. As a result of the July 2009 reconsideration, U.S. EPA re-evaluated source specific ambient lead data and determined that a 1.0 tpy monitoring threshold could overlook stationary sources whose emissions could cause a lead NAAQS exceedence. The analysis used NEI data and lead monitoring data to derive source-specific emission thresholds from existing source oriented monitoring sites. As a result of this analysis, U.S. EPA is proposing to change the source oriented monitoring threshold to 0.50 tpy.

State and local regulatory authorities would use the new 0.50 tpy threshold to determine whether an air quality monitor is required to be placed near a facility that emits lead.  U.S. EPA is also proposing to require lead monitoring at sites comprising the “NCore Network” instead of the current requirement to place lead monitors in each CBSA with a population of 500,000 or more people.  U.S. EPA envisions the NCore Network as a long-term, multi-purpose, multi-pollutant monitoring network that provides data useful for NAAQS attainment decisions. Under the current proposal, lead monitoring at NCore sites would begin January 1, 2011. The proposal would expand the October 15, 2008 lead monitoring network by requiring an additional 160 monitors near sources (0.5 tpy) of airborne lead and by requiring 80 additional monitors at NCore stations. 

Should this proposal be approved, you will probably see an ambient lead monitor being located near your facility in 2011 if you have reported actual lead emissions of 0.50 tpy or greater.  ALL4 recommends that facilities check the accuracy of their reported actual lead emissions and submit corrected actual lead emissions data to the NEI as appropriate. 

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