4 The record articles

2017 Air Quality Look Ahead

Posted: January 17th, 2017

Authors: John E.  Dan H.  Lindsey K.  Colin M.  Dan D. 

Changes in the Wind | John Egan

For over 40 years I’ve been involved in the business of environmental regulation, and more specifically air pollution control.  From my early days as a field enforcement officer in Pennsylvania’s hard coal region in the mid-‘70s, to serving as air permitting chief in the state’s busiest regional office, to working for a large multinational environmental consulting firm, and finally to starting my own firm with my partners almost 15 years ago; I’ve learned lots of lessons, earned some scars, seen unbelievable changes and accomplishments for our country, and been blessed many times over.  I’ve seen administrations come and go and have watched the pendulum of regulatory oversight swing back and forth. All the while things continued to drastically improve from an air quality perspective.

One of the best things about aging is the advantage it gives you on putting things in perspective.  So I feel the need to share some thoughts about how things may, or may not change in the coming months with respect to what we do, “we” being all of us working in the environmental regulatory field, for the government or directly or indirectly for the regulated community.  Since these are my own thoughts and I’m not clairvoyant, I could be way off-base and if I am, I promise to be the first to admit it.  On the other hand, that age perspective thing may actually have some relevance.

Immediately after the election and amongst all that emotion I heard some amazing predictions regarding what was going to happen when the new administration took over.  I have no doubt that the incoming administration will alter the course of many government directives that will influence all of us including taxes, health insurance, and the economy to name of few. But specifically from an air quality regulatory perspective, I heard several curious “tidbits” worth sharing including:

  • Coal is coming back and greenhouse gases will no longer be a concern or be regulated.
  • The EPA will be eliminated.
  • Regulated facilities will be able to do whatever they want in terms of facility changes by just reaching out to their politicians.
  • All of us working in this field will no longer be needed and will need to pursue new careers.

This is all very entertaining, much like the election itself, but not much of it appears grounded in reality.  Don’t get me wrong, I cut my teeth learning about coal firing and I firmly believe there is a place for coal with the right technologies.  But having lived in this business through 8 Presidents now, I continue to be amazed at the checks and balances that are built into our government. You have to remember that:

  • Regulatory agencies and the associated regulations that impact the regulated community are a direct result of the Clean Air Act (CAA) which is a federal law.
  • Federal laws cannot be changed or eliminated without a formal process and, as we know, federal process typically means years; and even after years there may be no progress thanks to litigation.
  • The underlying basis for the CAA is protecting public health and welfare and, as a result, rolling back health-based standards and associated rules will be a monumental task that will likely be met by unprecedented public opposition.

What I think may actually happen:

  • EPA funding, manpower, and influence will almost certainly be impacted and likely will result in reduced EPA oversight and more independent action by state agencies.
  • Industry will view these changes as an opportunity to expand and grow, without the burdensome level of red tape, second guessing, and time delays that typically are associated with EPA for many permitting actions.
  • Non-governmental organizations (NGOs) will be empowered and fundraising efforts will increase significantly, resulting in their greater participation in the regulatory process, permitting events, and litigation.
  • EPA policy and guidance which have driven decisions beyond the text of the law and regulations and have impacted many real projects will likely reverse course.  In other words, if a project complies with regulatory requirements there will be much less chance of delays over policy interpretations regarding what the rule states.
  • The National Ambient Air Quality Standards (NAAQS), which are the backbone of the CAA, will not likely be relaxed.
  • The number of new air quality regulations will likely be limited and those that are proposed would be expected to be manageable by the regulated entities (i.e., effectively implemented with less burdensome associated process).

Based on our experiences in recent years supporting our clients and negotiating with EPA on real projects, those in power in the agency have been pushing an agenda that in some cases went beyond the scope of the rules that they are charged by us to implement and enforce, with no real accountability.  The positions taken by EPA on major project regulatory decisions and on the interpretation of their regulations left us, as experts, in a position where we could often not provide clear direction to our clients and that is an untenable situation.  The “trickle down” influence by EPA over state and local regulatory agencies was all too obvious when those individuals felt powerless to make their own decisions over concerns about how EPA would react.

Earlier I mentioned that in my 42 years in the environmental world I’ve seen the pendulum swing back and forth as we shifted from Republican administration to Democrat and back again.  I have never seen the pendulum swing so far in one direction as I’ve witnessed under the outgoing administration and while I don’t necessarily support a number of the incoming administration’s agenda items, the mere fact that the power wielded by EPA will need to become more grounded and accountable is a welcome situation.  Also, understand that change can result in surprises.  The CAA amendments of 1990, now 26 years old, were implemented by a conservative republican administration and those changes resulted in the Title V permitting program, Part 63 NESHAP regulations, and other sweeping air quality regulatory changes that still influence much of what we do today.

So stay tuned, pay attention, and keep connected.  And above all, understand that when big changes occur there is often the opportunity to influence the change.  Part of ALL4’s vision statement that we wrote over a decade ago includes the terms “shaping environmental responsibility” so expect to see us actively involved in the process and we’ll keep you informed as we go.


Next Generation Compliance and Continuous Monitoring Data – Here to Stay | Colin McCall

In 2016 U.S. EPA (particularly the compliance and enforcement branch) placed a great deal of emphasis on Next Generation (Next Gen) compliance.  Next Gen compliance is an enforcement philosophy that focuses on increased electronic reporting, ambient monitoring, and providing direct public access to a wide range of facility air quality information.  The involvement of the public in the enforcement process appears to be a response in part to the increasing regulatory complexity that needs to be addressed by state agencies combined with decreased staff levels in enforcement at those agencies.  In concept, the general public could serve as another arm of air enforcement.  Next Gen compliance consists of five components:

  1. Regulation and Permit Design:  Taking the opportunity to introduce Next Gen concepts such as ambient monitoring and public access to monitoring data into new Federal regulations (e.g. Refinery MACT benzene fence line monitoring).
  2. Advanced monitoring:  Evaluating more affordable and user-friendly ambient monitoring techniques that can be employed by stakeholders outside of regulatory agencies (e.g., remote sensing of VOC emissions).
  3. Electronic Reporting:  Use of the electronic reporting tool (ERT) for submittal of facility compliance and emissions information for Federal regulations, including expanded reporting of continuous emissions monitoring (CEMS) data.
  4. Transparency:  An overarching theme of NextGen compliance related to public access to data.
  5. Innovative Enforcement:  efforts to automate enforcement where possible as described by the phrase “data analytics and targeting” on U.S. EPA’s website.

The current (and soon departing) U.S. EPA administration’s enforcement arm emphasized Next Gen compliance principles wherever possible.  It remains to be seen how the incoming administration views these concepts.  The best guess is that the focus on NextGen principles related to regulation and permit design, advanced monitoring, and innovative enforcement will be de-emphasized from a Federal perspective.  We do expect, however, that electronic reporting under ERT and U.S. EPA’s Compliance and Emissions Reporting Data Interface (CEDRI) to continue and grow.  With the emphasis remaining on electronic reporting, CEMS data, in particular, will be taken on continued importance.  For even the most sophisticated environment programs, CEMS reporting remains one of the final frontiers of areas that can still be improved and evaluated to stand up to an agency and public scrutiny.  We are recommending a full understanding of CEMS data collection, validation, averaging, and reporting for the following reasons:

  1. Electronic reporting is a concept that is here to stay from the standpoint of efficiency and the public’s expectation that regulatory agencies are being as efficient and comprehensive as possible in monitoring their regulated entities.  Electronic reporting means wider access to your CEMS data.
  2. Third-party environmental groups will consider themselves the “last line of defense” for regulatory enforcement once the new U.S. EPA administration begins.  Funding to these organizations has already increased since the election, and CEMS data is an area that is ripe for them to pursue when targeting stationary sources.

We will get a better sense for NextGen compliance and its future once the new administration begins to implement its own enforcement priorities.

Boiler MACT Remand and Planning for January 31, 2017 | Lindsey Kroos | Ashley Howard

Back in August, I wrote a blog about the United States Court of Appeals for the District of Columbia Circuit (Court) decision related to Major Source Boiler MACT, Area Source Boiler MACT, and CISWI rules1.  As mentioned in my blog, these are three related rules for boilers, process heaters, and incinerators.  My follow-up blog in September explained more details regarding the Court’s decision and the potential impact on the regulated community.  In recent months there have been three primary petitions to the Court regarding the decision.

The petitions are as follows:

  1. U.S. Environmental Protection Agency (EPA) has requested that the Court convert the vacatur to a remand without vacatur.  As of November 16, 2016, environmental groups have also asked the Court to remand instead of vacate the standards.  These groups argue that it is more beneficial to the environment to keep the existing limits in place while they are being revised, rather than vacate them.  EPA also argues that a remand will minimize the uncertainty of the ruling on the regulated community.
  2. Environmental groups argue against the Court’s decision to uphold EPA’s use of the Upper Prediction Limit (UPL) as an average.  EPA used the UPL to calculate the Boiler MACT standards, but environmental groups argue that the UPL is an upper limit and should not have been used.  Instead, they argue that average emissions should be used, which would make the standards more stringent.
  3. A utility argued against the Court’s decision to uphold the requirement for emissions limits to apply during periods of malfunction, startup, and shutdown.  Utilities argue that malfunctions are unavoidable and the rule should permit waivers for situations of startup, shutdown, and malfunction.

On December 23, 2016, the Court granted EPA’s petition that “the numeric MACT standards set in the Major Boilers Rule for new and existing sources in each of the eighteen subcategories be remanded without vacatur for the agency to conduct further proceedings.” However, no timeline was established for EPA to act on the remand, other than the expectation to “complete this rulemaking promptly.” The other petitions were denied.

While we continue to wait for a final resolution, our advice to the regulated community is to continue to plan for January 31, 2017.  This date is important for two reasons:

  1. January 31, 2017 is the first reporting deadline for sources that complied by January 31, 2016.
  2. January 31, 2017 is the compliance date for sources that were granted a one-year extension.  Stack tests demonstrating compliance must be complete by July 29, 2017 and site-specific plans must be in place 60 days beforehand.

For more information regarding specific reporting requirements, refer to Kayla Turney’s blog post.  If you’re unsure about your obligations for the January 31, 2017 deadline, reach out to us.  We’re happy to support you with these requirements.

1MACT = Maximum Achievable Control Technology; CISWI = Commercial and Industrial Solid Waste Incineration

New Era in Air Quality Modeling:  Appendix W Revision | ALL4 Staff and Dan Dix

After a long wait, the anticipated revisions to the 40 CFR Part 51, Appendix W (also known as the Guideline on Air Quality Models) was signed by U.S. EPA administrator Gina McCarthy on December 20, 2016.  The rule which was published in the FR on January 16, 2017 and contains enhancements to air quality modeling procedures that will benefit regulated stakeholders.  One of the two primary goals of the Appendix W revisions is to address technical concerns within U.S. EPA’s AERMOD modeling system to generally improve model performance.  The second primary objective is finalizing air quality modeling techniques to address the secondary chemical formation of fine particle (PM2.5) and ozone (O3) pollution from direct, single source emissions of sulfur dioxide (SO2), oxides of nitrogen (NOX) for PM2.5, and volatile organic compounds (VOCs) and NOX for O3 formation.  In addition to the Appendix W revisions, the final rule also includes guidance on single source modeling, Model Emission Rates for Precursors (MERP) guidance, and guidance on the use of Model and Mesoscale Model Interface Program (MMIF) for use of prognostic meteorological data in AERMOD modeling system.  With the release of this new guidance, 2017 is all set to become an exciting breakout year for air quality modeling.  ALL4 is all over the new guidance documents and will be releasing a series of blogs to help you navigate this new era of air quality modeling.

2015 Ozone NAAQS Implementation | ALL4 Staff and Dan Dix

On November 2, 2016, the U.S. EPA proposed an implementation of the 2015 National Ambient Air Quality Standard (NAAQS) for O3 (2015 ozone NAAQS) with requirements that would apply to states with nonattainment areas and States in the ozone transport region (OTR).  The proposed rule, which was subsequently published in the FR on November 17, 2016, largely resembles the implementation rule promulgated for the 2008 O3 NAAQS and establishes the framework for U.S. EPA, state, tribes, and local air quality agencies for planning to achieve the 2015 O3 standards.  The three key features of the proposed rule which might impact you are nonattainment area classifications, updates to the nonattainment NSR offset requirements, and guidance to revoke the 2008 O3 NAAQS.  The finalization of this rule is anticipated to impact the nonattainment New Source Review (NSR) air permitting process by the inclusion of the evaluation of the inter-precursor trading ratio (IPT).  ALL4 is currently evaluating the IPT guidance document and will publish a blog to provide additional information that will help stakeholders understand and plan for air permitting in areas with O3 nonattainment designations.

Key Regulatory Developments for the Oil & Gas Industry | ALL4 Staff

Last year’s Look Ahead article forecast a busy regulatory year for the oil and gas industry.  If you have been on the receiving end of all of the subsequent regulatory activity or have been following our blog and newsletter articles, you may rightly feel that “busy” was an understatement.  In this article, we summarize some of the recent and key regulatory actions impacting the oil and gas industry and discuss some of the issues to keep in mind as you plan for 2017.

  • Back in March 2016, U.S. EPA announced that it intended to issue an Information Collection Request (ICR) to the oil and gas industry as part of a concerted push for increased methane regulations for this industry.  The final ICR was issued on November 10, 2016 as discussed in our November 16, 2016 blog.  U.S. EPA expected to issue all 114 ICR letters by the end of 2016 and we have heard from a number of clients that have since received the requests.  Companies that receive the ICRs will need to respond by early 2017 (within 60 days of receiving the operator survey or within 180 days of receiving the detailed facility survey).  Information collected through ICRs is typically used in the development of new regulations.  Whether that will be the case for this ICR is something we will continue to monitor.
  • The NSPS Subpart OOOOa regulations became effective on August 2, 2016 and will continue to be a significant regulatory force in 2017 for new or modified facilities that trigger these requirements.  In addition, initial fugitive emissions monitoring activities and the first annual compliance report for facilities already subject to Subpart OOOOa will be due in 2017 (on June 3 and October 31, respectively).
  • In addition to U.S. EPA’s ability to regulate emissions from new and modified oil and gas facilities under Subpart OOOO and Subpart OOOOa, the control technique guidelines (CTGs) finalized on October 20, 2016 will result in increased regulation of existing oil and gas sources in ozone non-attainment areas.  Although the CTGs are technically voluntary, states seeking approval of their State Implementation Plans (SIPs) from U.S. EPA will need to demonstrate that their proposed control measures are at least as stringent as those specified in the CTGs.  With the 2015 revision to the ozone National Ambient Air Quality Standards (NAAQS) and as states submit SIP regulations to U.S. EPA for approval, the CTGs are expected to play an increasingly significant role in 2017.
  • With regards to the U.S. EPA Mandatory GHG Reporting Rule and as discussed in ALL4’s October 24, 2016 blog, the calendar year 2016 GHG reports due at the end of March 2017 will be the first reports required to include GHG emissions from the new Onshore Petroleum and Natural Gas Gathering and Boosting and Onshore Natural Gas Transmission Pipeline segments added to Subpart W of the rule on October 22, 2015.  In addition, starting January 1, 2017, facilities will no longer be able to use the Best Available Monitoring Methods (BAMM) provisions of the rule to estimate emissions and, instead, will need to follow all rule requirements for the new segments.  Finally, 2017 will also bring new requirements related to leak surveys and emissions reporting for facilities subject to Subpart W and NSPS OOOOa (see our December 12, 2016 blog for more on this topic).
  • In 2016, we saw Pennsylvania and California continuing the trend set by Colorado back in 2014 by proposing state regulations to reduce methane emissions from the oil and gas industry.  Pennsylvania recently published draft general permits for natural gas production, processing, and compression facilities, which are discussed in ALL4’s December 20, 2016 blog.  California’s GHG emissions standards for oil and gas facilities were proposed in June 2016 and are discussed in our June 27, 2016 blog.  Although not final, companies with oil and gas operations in these two states should continue to follow the development of these regulations closely as they plan for 2017.

If you would like to discuss these or other regulatory issues impacting your oil and gas operations, please contact Roy Rakiewicz at (610) 933-5246 x127, rrakiewicz@all4inc.com.

U.S. EPA’s Collection of Information from Stakeholders | Dan Holland

Information collection requests are the Federal government’s notice of its intent to collect information from stakeholders.  Beginning with the first Paperwork Reduction Act (PRA) of 1980 and highlighted by the PRA of 1995, Federal agencies including U.S. EPA are required to justify and explain instances when information is going to be collected.  U.S. EPA and other Federal agencies are required to submit the ICR to the Office of Management and Budget (OMB) for review and approval.  The process for developing the ICR is a multi-step process and typically includes at least three notices in the Federal Register.  Most U.S. EPA ICRs that appear in the Federal Register (FR) are for a renewal of data collection for an existing regulation.  In situations involving regulations, the ICR renewals are required every three (3) years.  Other ICRs are a one-time focused request for information that U.S. EPA will subsequently use as part of rulemaking or other assessment of existing regulation (e.g., residual risk under the National Emission Standards for Hazardous Air Pollutants regulations – NESHAP).  Regardless of the type of ICR that is issued, tracking ICRs in the FR that may be relevant for your particular operations could really be worth your time and effort, especially when the ICR is requesting that you submit information.  For 2017, no slow down in the issuance of ICRs is anticipated.  Stationary sources of Lime Manufacturing, Stationary Combustion Turbines, Asphalt Processing and Asphalt Roofing Manufacturing, and several other source categories are expected to experience focused ICR activity in 2017; however, until the dust associated with U.S. EPA’s administration change settles, who actually receives an ICR in 2017 or beyond is uncertain.

For more information about any of the topics above, please reach out to the authors or contact us at info@all4inc.com.


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