Addressing Environmental Justice in the Permitting Process

On February 11, 1994, Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations was issued.  Executive Order 12898 calls on each Federal agency to make achieving environmental justice part of its mission.  Since that time the United States Environmental Protection Agency (U.S. EPA or Agency) has developed and issued several plans and guidance to implement Executive Order 12898 in rulemaking, permitting and other Agency action.  Most recently, on May 9, 2013 U.S. EPA published a Federal Register notice of availability of regional actions to promote public participation in the permitting process and promising practices for permit applicants seeking permits (78 Fed. Reg. 27220).   By this publication U.S. EPA is sharing actions it is taking, and urging permit applicants to use certain practices designed to enhance the opportunity and ability of overburdened communities to participate in the permitting process for projects that may affect the quality of life in the surrounding community.

What Is Environmental Justice?

U.S. EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  U.S. EPA further defines the term “fair treatment” to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”  In implementing its environmental justice-related efforts, the Agency has expanded the concept of fair treatment to consider not only the distribution of burdens across all populations, but also the distribution of reductions in risk from U.S. EPA actions. For example, U.S. EPA’s own guidance encourages its staff to evaluate the distribution of burdens by paying special attention to populations that have historically borne a disproportionate share of environmental harms and risk. At the same time, it encourages staff to examine the distribution of positive environmental and health outcomes from regulatory and other Agency activities.

Others have offered definitions of environmental justice that imply elements of “rights” when it comes to a safe and healthy environment, and claims of racial discrimination and classism that, intentional or not, results from environmental policy, enforcement of regulations and the siting of industrial facilities.

What is U.S. EPA Doing?

The direction given to each federal agency by Executive Order 12898 is to “make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities.’’  In the first decade or so after Executive Order 12898 was issued, U.S. EPA’s efforts to incorporate environmental justice into its programs largely included evaluating which programs to focus on, identifying the methods for implementation, and communicating commitment.  More recently U.S. EPA action has focused on strengthening its environmental justice program and supporting more participation by both regulated and affected communities.

In 2011, U.S. EPA published Plan EJ 2014, the Agency’s overarching strategy for advancing environmental justice.  The Plan has three goals:

  1. Protect health and the environment in overburdened communities.
  2. Empower communities to take action to improve their health and environment.
  3. Establish partnerships with local, state, tribal, and federal governments and organizations to achieve healthy and sustainable communities.

One focus area of the Plan is ‘‘Considering Environmental Justice in Permitting.”  Because permits often establish requirements to reduce or eliminate pollution from a source, U.S. EPA believes permits play a key role in providing effective protection of public health and the environment in communities. For this reason, Plan EJ 2014 calls upon U.S. EPA to enhance the ability of overburdened communities to participate fully in the permitting process and to take steps to meaningfully address environmental justice issues in the permitting process to the greatest extent practicable.

In the first part of the notice published on May 9, 2013, U.S. EPA issued guidelines designed to help regional offices identify which permits to prioritize for enhanced outreach to overburdened communities (Regional Actions).  These guidelines identify the types of permits that could involve projects or activities with significant public health or environmental impacts.  Examples given in the U.S. EPA guidelines include, but are not limited to, the following:

  • Construction permits under the Clean Air Act, especially new major sources or major modifications of sources.
  • Significant Underground Injection Control Program permits under the Safe Drinking Water Act.
  • Industrial National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act that are for new sources or new dischargers, or existing sources with major modifications.
  • RCRA permits associated with new combustion facilities or modifications to existing RCRA permits that address new treatment processes or corrective action cleanups.

Under the guidelines U.S. EPA regional offices have the discretion to use other considerations to prioritize permits for enhanced outreach.  One important consideration could be whether a community has expressed concerns over a permit application or renewal.

The guidelines are less than clear when it comes to where they should be applied.  There is no definitive line given to allow regional offices to determine that a permit will, or will not, impact an overburdened community.  U.S. EPA has previously defined overburdened community as “the minority, low-income, tribal and indigenous populations or communities in the United States that potentially experience disproportionate environmental harms and risks due to exposures or cumulative impacts or greater vulnerability to environmental hazards. This increased vulnerability may be attributable to an accumulation of negative and lack of positive environmental, health, economic, or social conditions within these populations or communities.”  However, there has been no rigid criteria established for identifying overburdened communities, and so this too is apparently left to the discretion of the permitting agency.

U.S. EPA indicates that the guidelines are intended to supplement the standard notice-and-comment procedures that are in place and required by law, and thus there is no regulatory or legal requirement that they be followed.  Even so, in the name of better health protection for communities, U.S. EPA is strongly promoting their use.  From a permit applicant’s perspective, the promotion of such broad guidance and discretion surely raises concern.  How can I know if my application will be prioritized for enhanced outreach?  Will a permit prioritized for enhanced outreach end up with stricter limitations, or a higher probably of being denied altogether?  Could the additional effort involved delay finalizing a permit in a timely manner?  Will enhanced outreach and transparency make permit applications subject to even more challenges by environmentalists?  U.S. EPA attempts to address some of these concerns in the second part of the notice published on May 9, 2013.

What Does U.S. EPA Suggest for Permit Applicants?

In the second part of the notice published on May 9, 2013, U.S. EPA provides its Promising Practices for Permit Applicants Seeking EPA-Issued Permits: Ways To Engage Neighboring Communities (Promising Practices).  These Promising Practices are not new.  They are already used by many companies and facilities that have robust community engagement policies.  U.S. EPA compiled the Promising Practices by reaching out to business leaders on environmental justice issues to get their insights and experiences.  The stated purpose for publishing them is to encourage those leaders to continue their efforts and to promote their use by those who are new to the ideas.

The Promising Practices are briefly summarized here as follows:

  • Think Ahead

Before undertaking community outreach, evaluate the community and the project to determine what kind of community outreach is appropriate for the circumstances.  The Promising Practices list a number of questions that applicants can answer to help guide this assessment.

  • Engage Community Leaders

U.S. EPA learned from its own outreach that the first step in meaningful engagement is to identify and cultivate trusting relationships with community leaders.  In addition to elected officials and government employees, community leaders can be found in religious organizations, academic institutions, health organizations, environmental groups and neighboring facilities that also hold permits.  The Promising Practices provide suggestions on how to establish connections with community leaders.

  • Engage Effectively

Positive and ongoing interactions are essential to strong relationships.  Following early engagement it is important to sustain involvement.  The Promising Practices include suggestions on actions designed to help a permit applicant engage effectively with community members.

  • Communicate Effectively

It is important that community outreach provide for an atmosphere in which all stakeholders can participate in a dialogue.  Two-way communication is essential for the exchange of concerns and ideas.  This is one of the areas where community leaders are in a position to help with potential language barriers and identifying the most effective media outlets and outreach materials to use.  The Promising Practices include actions designed to help a permit applicant engage effectively with community members.

  • Follow Up

When a permit applicant delivers on commitments made to the community, the community can also receive a sense that the applicant displays the characteristics of responsibility, integrity and commitment, which goes a long way to building trust.  The Promising Practices list ways to help design follow-up activities.

To encourage the use of its Promising Practices, and perhaps address some of those concerns mentioned above, U.S. EPA includes in the notice examples of success stories and a discussion in support of there actually being a return on investment for applicants that expend effort to engage in early outreach with neighboring communities.  A less contentious permitting process no doubt reduces the time it takes for final approval.  Applicants that pursue enhanced community outreach do incur costs in the in terms of time and money, but there are instances where the lack of outreach has caused misunderstandings with community members that result in the costs of delay, negative publicity impacting investor interest, and attorney’s fees associated with litigation.

Is All This Now Required?

As with any good regulatory question, the answer is that “it depends.”

The Regional Actions and Promising Practices published by U.S. EPA do not create any regulatory obligations and do not add any requirements in existing permitting regulations.  And the notice issued on May 9, 2013 clearly states that the scope of the Regional Actions and Promising Practices is limited to U.S. EPA-issued permits.  So applicants for permits that are issued by U.S. EPA may run into the Regional Action guidelines and may be encouraged to employ the Promising Practices.  But at this time they have not been established as rules and participation remains a voluntary decision.

Most environmental permits are issued by state, local, and tribal government agencies, and not U.S. EPA.  Some of these state, local and tribal agencies have already implemented environmental justice components in their permitting processes, including policies or requirements that may be similar to the Regional Actions and Promising Practices.  So permit applicants in jurisdictions that have existing environmental justice permitting requirements must meet those requirements.

What Lies Ahead

Prior to publishing the Regional Actions and Promising Practices, U.S. EPA did solicit comment on them.  Some commenters suggested that the scope of the initiative to address environmental justice in permitting be expanded beyond U.S. EPA-issued permits.  In its response U.S. EPA expresses its belief that it is best to first undertake these activities itself, “before requiring state, local and tribal governments to do so” (emphasis added).  Based on that statement it would appear there is at least some intention to promulgate these ideas as requirements in the future.

References:

Memo from Administrator Whitman on U.S. EPA’s commitment to environmental justice, August 9, 2001.

U.S. EPA, Draft Technical Guidance for Assessing Environmental Justice in Regulatory Analysis, April 2013.

U.S. EPA, Action Development Process: Interim Guidance on Considering Environmental Justice During the Development of an Action, July 2010.

ALL4’s Southern Regional Office Relocates to Greater Atlanta Area

ALL4 is pleased to announce that the Southern Regional Office (SRO) will be relocating from Columbus, GA to Kennesaw, GA as of July 1, 2013.  Kennesaw is located approximately 27 miles northwest of Atlanta.  Colin McCall will continue to lead the effort as the SRO Director.  He will be joined by Mark Wenclawiak, Susie Bowden, and myself in providing the area with ALL4’s wealth of environmental services, expertise, and knowledge.  

The SRO initially opened its doors in 2010 and provided ALL4 with a direct presence in the south for both existing and new clients.  The relocation will allow ALL4 to continue to expand both the staff and clientele of the SRO.  The Greater Atlanta Area is home to a wealth of recruiting talent, and will allow ALL4 to continue to attract the best and brightest individuals to ensure the continued growth and success of the SRO.  For more information please see the press release.

What the BEEP is a SODAR?

Beep….Beep….Beep….Have you ever heard a smoke detector that chirps due to a low battery?  Well, mix that with the sound of an underwater submarine, and you get the sound that a SODAR makes.  Most people don’t know it, but ALL4 owns a SODAR.  For the past two days (as I write this blog post), ALL4 is testing out its very own SODAR that we will be renting to a client for the upcoming year.  Before we rent it out, we want to make sure that it functions (beeps) properly. 

“What is a SODAR, and does it need to beep like that?”  Well, that’s an excellent question.  And due to the constant beeping and the fact that it is sitting right outside my window, I’ve heard that question asked once or twice a copious amount of times these past two days at the office.  I figured that I would write this blog post to answer that question for not only some coworkers, but also the surrounding community that is most likely wondering why the BEEP that thing is beeping.  Also, it’s a nice plug to let the world the audience that reads our BLOG know that we have (and are familiar with) a SODAR that we can rent out if anyone needs one in the future.

The purpose of a SODAR, or SOnic Detection And Ranging, system is to remotely measure the vertical turbulence structure and the wind profile of the lower layer of the atmosphere.  SODAR systems are similar to RADAR (RAdio Detection And Ranging) systems, except for the fact that sound waves are used for detection rather than radio waves.  You might be more familiar with the term SONAR (SOund NAvigation Ranging) systems, which detect the presence and location of objects submerged in water (i.e., submarines) by means of sonic waves reflected back to the source.  SODAR systems are similar to SONAR systems, except that the medium is air instead of water and the reflection is due to the scattering of sound by atmospheric turbulence. 

The SODAR system functions by emitting a high intensity sound pulse (or “beep”) and sampling the atmospheric echo from that pulse.  Generally, both the intensity and the Doppler (frequency) shift of the return signal are analyzed to determine the wind speed, wind direction, and turbulent character of the atmosphere.  The return signal recorded at any particular delay time provides atmospheric data for a height that can be calculated based on the speed of sound.  Three-dimensional wind and turbulence profiles are produced from information that is contained in the echoes.  The SODAR system is comprised of three major components:

  • The acoustic antenna enclosure
  • The acoustic antenna (an array of speakers or speaker(s) and a parabolic dish)
  • The acoustic signal processor (ASP) which is the computer that controls the functions and processes the information echoed by the atmosphere

The acoustic antenna is an array of speakers that are used to both transmit and receive acoustic signals.  This speaker array is electrically steered to generate three (3) independent beams.  The received signal is the product of the interaction of the transmitted acoustic pulse with small-scale atmospheric temperature and moisture variations.  The amplitude of the acoustic echo is related to the strength of these small-scale temperature variations.  The frequency of the received signal is directly proportional to the radial motion of the scattering volume relative to the antenna.  The radial motions as determined from the Doppler shift from at least three (3) independent directions (x-, y-, and vertical beams) is combined to produce a vertical profile of the horizontal wind field.  A picture of the SODAR system is shown below.

Our SODAR system can be used to collect high-resolution measurements of the wind and turbulence profiles within the lowest 250 meters of the atmosphere.  SODAR systems can be used in any application where the upward winds or the stability of the atmosphere must be determined, particularly in cases where time and cost are of the essence.  Most of ALL4’s clients rent the SODAR system to collect data for air dispersion modeling.   Typically the SODAR is co-located with tower-mounted sensors and is useful in applications where a taller tower is not feasible due to size limitation (a guyed tower requires a large foot print) or cost. These devices are also well-suited (1) to complement microwave wind profiler systems, (2) for wind energy studies, (3) for emergency response monitoring systems, and (4) for low altitude operational measurements of wind fields. 

There are several advantages of using SODAR systems compared to erecting tall towers with in-situ wind and temperature sensors.  First of all, a SODAR system can generally be installed in a shorter amount of time and at a fraction of the cost of installing a tall tower.  Also, the SODAR system can use sound waves to obtain data from a higher altitude than the towers would be able to reach.  The only thing that you have to worry about is the incessant beeping.  But generally, the SODAR system will be placed in a location that is out in the open to avoid any obstruction from other structures, so the beeps usually are not a problem.  Today, however, it is sitting right outside my office window (see photo below) and I can hear it every few seconds.  Ipso-facto, I am being reminded of its presence every few seconds.  Due to the constant questioning and its presence in my mind, I figured that it would be a waste of an opportunity if I didn’t write a blog post about the BEEPING SODAR. 

Single Source Determinations For Air Quality Permitting Applicability

Once again, single source determinations and the confusing issue of whether to aggregate emissions from multiple sources together for permitting as a single source (facility) is in the limelight for the Pennsylvania Department of Environmental Protection (PADEP) due to ongoing and threatened litigation. As a reminder, aggregation is a construct of the U.S. EPA under New Source Review Permitting that defines what air emission sources are considered together as a “single facility” and this in part, determines if the permitting action is for a major air emission source.  The litigation portrays PADEP, and EPA as a complying partner, to be making inconsistent decisions based on incorrect interpretations that are contrary to the federal Clean Air Act.  The real answer is that situations involving multiple sources where aggregation could be considered are often very complicated and are case-by-case decisions that have to consider multiple determining factors.  PADEP is specifically being characterized as circumventing proper permitting procedures in their oil and gas single source permitting policy statement.  Lacking clear guidance from U.S. EPA and faced with an increasing number of permitting situations where aggregation was considered, PADEP tried to provide better definition and some “brighter” lines where some of these single source decisions could be established.  The PADEP “¼ mile” distance standard clearly defined when exactly air emission sources would be aggregated together as a single source, while continuing to recognize the gray area that still remains beyond ¼ mile where case-by-case decisions still have to be made.  These are not actions for which an air permitting program should be revoked, as requested in the recent threatened legal action.

Some of those opposed to unconventional gas exploration would like to paint a bright line where air emission units connected by pipelines would always be determined to be one single facility.  Such a position greatly increases the likelihood of stopping a gas well project.  If connectivity were the dominate criteria that makes a single facility (pipes, electrical wires, roads, telephones, etc.), the impact on all air quality permitting projects will expand well beyond unconventional gas wells.  Although a bit cliché, the old saying “Be very careful what you ask for” applies in this case.  Most of the modern world would not function in a dependable manner without connectivity.  Not too long ago, many towns had their own electric generation and fuel-gas generation facilities, remnants of which still exist.  If those systems failed, town residents and businesses could regress to the dark ages in a matter of minutes.  Even our environment would not be as clean if it were not for connectivity.  If every company had to construct their own electrical lines, telephone lines, or gas pipelines for fear of aggregated permitting, rather than combining these collection and delivery systems, the environment would suffer from that added construction.  If water supply and sewage treatment systems have to aggregate all of their engine driven pumps and electrical generators together, they too may become major air emission sources.  Stressing the intent of major source permitting under the Clean Air Act with broad interpretations of connections for delivering products such as natural gas, oil, gasoline, electricity and even drinking water will have many unintended consequences.

Contentious Air Permitting Issues for the Pennsylvania Oil and Gas Industry

On May 30, 2013 the Clean Air Council (CAC) submitted a 60-day Notice of Intent to Sue U.S. EPA regarding Pennsylvania’s air permitting of the oil and gas industry.  Specifically, the CAC charges that Pennsylvania is failing to implement “requirements of its State Implementation Plan (SIP)” and is not “adequately administering and enforcing” the Title V permitting program.  This notice stems from the CAC’s petition filed in February 2012.  The original petition centered around the Pennsylvania Department of Environmental Protection’s (PADEPs) single source aggregation policy, particularly as it pertains to the oil and gas industry.  The CAC asserts that PADEP’s oil and gas single source aggregation determinations are not “legally adequate and complete” and the CAC contends that U.S. EPA’s failure to respond to the February 2012 petition “constitutes unreasonable delay.”  The CAC is proposing that the PADEP be sanctioned by withholding of grant funds and withdrawal of Title V permitting authority for the oil and gas industry.  U.S. EPA has not yet responded to the CAC’s notice. 

In accordance with its notice, CAC intends to file suit in a U.S. District Court if U.S. EPA fails to respond within 60 days.  Stay tuned.

A Peek Into The Future?…U.S. EPA’s Energy Efficiency and Renewable Energy Roadmap Manual

About ten years ago, the U.S. EPA began publishing guidance regarding how states could take credit for emissions reductions realized through electric sector energy efficiency (EE) and renewable energy (RE) policies and programs. The initial guidance[1], was published in August 2004 and was followed by guidance related to addressing emerging and voluntary measures in state implementation plans[2] in September 2004, guidance on incorporating “bundled measures” in a state implementation plan (SIP)[3] in August 2005, and modeling guidance for demonstrating attainment with the Ozone and PM2.5 national ambient air quality standards (NAAQS) and Regional Haze[4] in April 2007.  These initial EE/RE guidance documents were intended to prompt states to take credit for emission reductions related to EE/RE in their SIPs.  However, the initial guidance apparently resulted in very few instances of states incorporating EE/RE policies and programs into SIPS. The reasons cited for the limited use of the initial guidance included a perception that the effort needed was not justified by reward (SIP credit), a lack of guidance from U.S. EPA, overly burdensome documentation requirements, and uncertainty regarding the achievable reductions.

On July 2, 2012, the U.S. EPA issued “new” guidance, referred to as the EE/RE Roadmap Manual (Roadmap); to assist states for incorporating EE/RE policies and programs into their SIPs.   The agency identified several reasons for the release of the new Roadmap, the most compelling for states being the increasingly stringent NAAQS levels, the need to find (and document) even greater emissions reductions where the majority of the larger emission point sources have already been controlled, and the realization that non-traditional emission reductions may be the most cost effective reductions available. In addition, the agency cited the increased state adoption of EE/RE policies and programs since 2004 that could result in air quality benefits (and that could be reflected in SIPs) and provided the following examples:

  • At least 29 states have adopted renewable portfolio standards (RPS) requiring retail electricity suppliers to provide a fixed amount of retail power from renewable resources.
  • States have significantly increased investment in EE programs with over 5 million dollars of ratepayer resources.

The Roadmap is comprised of a summary or “Main Body” document and a series of eleven (11) appendices that defines terms, explains the workings of the U.S. electric system, summarizes previous/existing EE/RE guidance, explains several state EE/RE programs and policies, describes the use and function of four alternative “mix and match” pathways, provides methodology for quantifying EE/RE emission and reductions and energy savings, and identifies examples of EE/RE policies and programs that have been adapted by states.  It also includes an extensive disclaimer which clearly states that it is not a regulatory action and does not create new guidance, but was issued primarily to “clarify existing guidance.”  The remainder of this article very generically identifies EE/RE strategies, summarizes the pathways identified in the Roadmap, provides a few examples of how several states are currently evaluating the use of the Roadmap, and identifies why this process is important for sources beyond EGUs.

What are EE/RE policies and programs?

Policies and programs are defined differently within the context of the Roadmap.  Policies are generally an enacted law or regulation by a state, locality or public utility commission (PUC). Both EE and RE and can be reflected in polices.  Examples of EE policies include energy efficiency requirements for new buildings or appliances, resource standards, and energy efficiency rebates that are enforced over multiple years.  Funding for such programs can occur via consumer surcharges, emission credit auctions (e.g. Regional Greenhouse Gas Initiative or RGGI), and federal funds.  RE policies are regulations, statutes, or PUC orders that require affected parties to acquire renewable energy or to commit to renewable energy funding, such as renewable portfolio standards (RPS).   EE/RE policies that result in emission reductions from fossil fuel-fired electric generating units (EGUs) that can be quantified can be addressed in a SIP and used as emission reductions for credit to attaining the NAAQS.

Programs are initiatives that are designed and implemented through education, outreach, incentives, and technical assistance and can be administered by a utility, state/local government, or a third party.  EE programs are designed to increase adoption of EE technologies/practices in targeted end use sectors. RE programs are designed to increase the production of and use of renewable energy sources.  EE/RE programs that result in emission reductions from fossil fuel-fired EGUs that can be quantified can be addressed in a SIP. Examples of programs include municipal building retrofit programs, municipal energy conservation plans, and EE awareness programs.

How Are Emission Reductions Quantified?

The emissions reductions associated with EE/RE policies and programs are almost entirely associated with the electric generating sector.  The Roadmap identifies a four step process for quantifying emission reductions associated with EE/RE policies and programs:

  • Develop future projected baseline inventory[5] – The projected baseline inventory must document base year EGU emissions for the area (e.g., state).  Information that is needed to develop the inventory for the EGU’s in the area includes generation data, emission factors (e.g., lb pollutant /MMBtu energy input) and/or continuous emissions monitoring data.  Projected future emissions can be based on historic trends about the impact of population growth and migration, economic growth, fuel availability and prices, and technological progress. The baseline projection forecasts future emissions absent any additional policies but includes policies that are already in place.   Care must be taken to avoid double counting reductions.
  • Estimate energy savings of EE/RE policies and programs – Energy savings represent the reduction in energy demand that result from EE/RE policies and programs.  In simplistic terms, the energy savings that result from the EE/RE policies and programs are subtracted from the baseline energy usage. While EE policies and programs may result in reduced demand, RE policies and programs in actuality will displace fossil fuel consumption with less polluting sources of energy, such as cogeneration.
  • Understand EE/RE policy and program emission impacts in nonattainment areas – The impact of displaced EGU emissions on nonattainment areas must be evaluated to ascertain how the reductions will impact local air quality.  Following the quantification step (Step 4), regional air quality modeling should be used to evaluate how the reductions will improve air quality in the nonattainment area.
  • Quantify “displaced” EGU emissions as a result of EE/RE policies and programs-  U.S. EPA identifies four (4) approaches to quantifying displaced EGU emissions as: 1) e-GRID sub region “non-base load” emission rates (basic approach), 2) capacity factor emission rates (basic approach), 3) historical hourly emission rates (midrange approach), and 4) energy models (sophisticated approach).  The basic approaches are appropriate for screening analyses while more complex approaches (energy modeling) will simulate EGU operation and emissions taking into account various factors including electricity imports, exports, fuel price, and technology performance.

How Are EE/RE Policies and Programs “Captured” in SIPs?

U.S. EPA describes four available “pathways” in the Roadmap as:

  • Baseline emissions projection pathway – This option is available for states to account for the impact of already adopted (i.e., on the books) EE/RE policies in their SIP. Revisions could be required through a SIP call if EE/RE reductions are relied upon and the EE/RE policy is not implemented as EPA has now detailed.
  • Control strategy pathway – This option is available for states that are considering new (i.e., on the way) EE/RE policies prior to submittal of the SIP.  Any EE/RE policies that are incorporated into a SIP must be quantifiable, surplus, enforceable, and permanent.
  • Emerging/voluntary measures pathway – This option is available for instances where states have adopted emerging and/or voluntary EE/RE initiatives (policies or programs) that are difficult to both quantify and enforces with limited SIP credit.
  • Weight of evidence (WOE) determination pathway – This option is considered a supplemental analysis to an attainment demonstration where an area is not predicting attainment with a NAAQS based on modeling and the area wants to account for EE/RE policies and programs that could affect air quality.

As mentioned above, the use of EE/RE emission reductions by states in response to the 2004 and subsequent U.S. EPA guidance through 2007 was less than anticipated.  However, several states (Maryland, New York, and Massachusetts) are currently using the 2012 Roadmap in a pilot program with U.S. EPA in an effort to take credit for SIP reductions resulting from EE/RE initiatives using several of the pathways identified as described below.

Maryland[6] is evaluating the WOE pathway to take credit for existing non-traditional EE/RE programs such as RGGI, Maryland RPS program, and clean car/clean building programs to name a few.  Maryland is also approaching their SIP process from a “multi-pollutant” perspective which includes taking advantage of emission reductions associated with existing EE/RE initiatives.  The WOE approach includes the use of more actual monitoring data and more realistic future emission projections while including credit for EE/RE programs.  Maryland is working with the Northeast States for Coordinated Air Use Management (NESCAUM) and state universities to quantify emission reductions for multiple pollutants, model those reductions, and quantify the public health and economic benefits. The program has identified “meaningful” emissions reductions associated with EE/RE programs.

New York[7] is using the Roadmap to evaluate three programs as part of a case study: the Combined Heat and Power (CHP) conversion project for boiler MACT compliance, the NY – Sun Initiative, and the Build Smart NY Initiative.  Under the CHP program, the goals include the implementation of best practices and policies to support increased investment in CHP systems and industrial energy efficiency.  The NY Sun Initiative provides financial incentives for large photovoltaic projects and residential/commercial systems and provides funding for larger scale/aggregated systems with a focus on businesses and universities located in and around New York City.  A few stated goals of the Sun Initiative include the development of a robust solar industry in New York, improve grid reliability, and reduce air pollution.  Several Build Smart NY initiative goals include a 20% reduction of New York’s energy use intensity (EUI) within seven years, reduce greenhouse gas emissions, and job creation. New York is currently evaluating the emissions reductions associated with the three programs.

Massachusetts[8] is testing the baseline emissions projection pathway for existing state EE programs including the Massachusetts Global Warming Act and the Green Communities Act, with no imminent SIP intentions. The Massachusetts Global Warming Act requires 25% and 80% reductions of greenhouse gases (GHG) by 202 and 2050, respectively as compared to a 1990 baseline.  The Green Communities Act requires the “acquisition of all available energy efficiency and demand reduction resources that are cost effective or less expensive than supply.”

So What’s The Point?

The point is that taking credit for emission reductions that may or may not occur in a SIP as a result of an emerging or voluntary program that also may or may not materialize is a daunting task with many moving parts, and now U.S. EPA has laid out acceptable means and methodology to allow states to define and get credit for these emission reductions.  As mentioned above, this article barely scratches the surface regarding how such actions will occur and are actually occurring.  States are also discovering that quantifiable emissions reductions associated with EE/RE policies, programs, and initiatives exist and the use of the Roadmap is anticipated to expand as more states become familiar with the process and potential SIP benefits, especially in an era of increasingly stringent NAAQS.

Given the additional emerging interest in energy efficiency as a result of federal regulations (e.g., GHG Reporting Rule, GHG Tailoring Rule, proposed GHG NSPS for new EGUs (proposed 40 CFR Part 60 – Subpart TTTT Standards of Performance for Greenhouse Gas Emissions for Electric Utility Generating Units)), international regulations (e.g., Canada GHG Rule for New/Existing Powerplants), states emerging interest in “multi-pollutant” SIPs, and increasing interest from non-governmental organizations (NGOs) regarding the incorporation of energy efficiency/GHG standards into new regulations and permitting decisions, it may be only a matter of time before efficiency standards will be a mainstream emission reduction strategy given the current momentum.

References

[1] U.S. EPA, Guidance on State Implementation Plan (SIP) Credits for Emission Reduction Measures from Electric-sector Energy Efficiency and Renewable Energy Measures, August 2004.

[2] U.S. EPA, Guidance on Incorporating Emerging and Voluntary Measures in a State Implementation Plan (SIP), September 2004.

[3] U.S. EPA, Guidance on Incorporating Bundled Measures in a State Implementation Plan, August 2005.

[4] U.S. EPA, Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze, April 2007.

[5] Baseline projections, including energy supply and demand and related emissions, describe future year conditions and typically assume continuation of current trends and no changes in laws and regulations.

[6] Presentation at NACAA Spring Membership Meeting May 6, 2013 St. Louis, MO, Tad Aburn – Air Director, Maryland Department of Environment

[7] Presentation at NACAA Spring Membership Meeting May 6, 2013 St. Louis, MO, Robert D. Bielawa, P.E. – New York State Department of Environmental Conservation

[8] Presentation at NACAA Spring Membership Meeting May 6, 2013 St. Louis, MO, Nancy L. Seidman Assistant Commissioner Massachusetts Department of Environmental Protection

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