President Trump Signs COVID-19 Regulatory Executive Order
On May 19, 2020 President Trump signed an Executive Order (EO) titled “Executive Order on Regulatory Relief to Support Economic Recovery”. The EO directs Federal agencies to evaluate regulations, policies, and enforcement discretion approaches among other items that will assist businesses in navigating the uncertainty that has been brought about by the COVID-19 pandemic. The following items are among a few covered under the EO:
- Direction that the agencies “should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility”.
- Direction that the agencies “shall identify regulatory standards that may inhibit economic recovery and shall consider taking appropriate action, consistent with applicable law, including by issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt persons or entities from those requirements…”.
- Direction that the agencies “shall consider the principles of fairness in administrative enforcement and adjudication listed below, and revise their procedures and practices in light of them, consistent with applicable law and as they deem appropriate in the context of particular statutory and regulatory programs…”.
In short, the EO asks regulatory agencies to consider where existing regulatory requirements can be removed or streamlined to provide confidence to businesses that are reopening or pressing forward with their operations amid the pandemic. It also asks for regulatory agencies to consider enforcement discretion measures, where possible, when the pandemic has made it difficult to comply with certain routine obligations.
So what does it mean for U.S. EPA? For its part, U.S. EPA has already issued an enforcement discretion guidance document addressing routine environmental obligations and how they will be handled during the pandemic when accessing certain resources (contractors, stack testers, etc.) is difficult or impossible in some cases. But what about regulatory streamlining? U.S. EPA is already working on a number of air quality construction permitting reforms but those have been occurring for several years and have slowed in pace recently. It’s difficult under the structure of the Clean Air Act to simply remove rules, and a separate EO directs U.S. EPA to issue any broadly applicable guidance in draft form for public comment before finalizing, so we wouldn’t expect much additional activity from U.S. EPA based on this EO alone.
If U.S. EPA were to introduce new rulemaking designed to help to provide clarity or to streamline other existing obligations, even that would be subject to possible scrutiny under the Congressional Review Act (CRA) under the next congress depending on its political makeup. The CRA allows the next congress to review and potentially overrule any new regulation that is issued during the final 60 working days of the current congress, which is projected to be anything issued after May 19, 2020. Any such rulemaking effort would also be subject to litigation and the uncertainty that follows.
However, it is possible that this EO could be used to promote easier and quicker approval of items like test waivers, alternate monitoring requests, and other submittals or permit applications that request alternate approaches that relieve testing and monitoring burden.
Put all together, we expect U.S. EPA to continue to work on their ongoing priorities and to utilize their enforcement discretion guidance where it is appropriate. It is our understanding that states have differing opinions on how to implement the U.S. EPA enforcement guidance, and we are tracking that as well. We will keep you updated on the impact, if any, of the May 19, 2020 EO moving forward. Feel free to contact me at (908) 328-9429 or at cmccall@all4inc.com with questions.
4 The Record – Quarantine Series
Welcome to ALL4’s 4 The Record – Quarantine Series (4TR-QS)! 4TR-QS is a publication of our RegTech Group and our intent is to provide timely and applicable insight for environmental professionals during a time when the “new normal” is anything but normal. Consistent with ALL4’s purpose of growing sustainable community, we have developed the 4TR-QS to provide our perspective on challenges faced by the regulated community during this time of quarantine, while also sharing some of our nuanced technical expertise that environmental professionals can learn now and apply in the future.
National Ambient Air Quality Standards (NAAQS) Update
The Clean Air Act (CAA) the U.S. Environmental Protection Agency (U.S. EPA) to establish National Ambient Air Quality Standards (NAAQS) for six common air pollutants (also known as “criteria air pollutants”). The six criteria pollutants are particulate matter, sulfur dioxide, nitrogen dioxide, carbon monoxide, ground-level ozone and lead. The NAAQS for each pollutant includes primary and secondary standards. The primary standards are designed to protect public health while the secondary standards protect the public against adverse environmental effects (i.e., public welfare).
The CAA requires U.S. EPA to conduct a review of the NAAQS once every five years. During each five-year review U.S. EPA considers scientific studies published since the last review in an Integrated Science Assessment (ISA), which provides additional information regarding what air quality levels are protective of human health and welfare. The U.S. EPA then prepares a Policy Assessment (PA) which evaluates the potential policy implications of the information within the ISA. The PA also includes the findings of the independent review of the ISA by the Clean Air Scientific Advisory Committee (CASAC).
U.S. EPA is currently conducting five-year reviews of the NAAQS for particulate matter (PM) and ground-level ozone (ozone). The NAAQS for PM and ozone are perhaps the two most critical NAAQS when it comes to obtaining air permits for new greenfield sites and major expansions of existing facilities. This is due to the relatively large number of nonattainment areas and the shrinking “gap” between the ambient background values and the standards in attainment areas.
Significance of Nonattainment Designations
A nonattainment designation is undesirable due to the increased complexity, difficulty, and length of time required to obtain nonattainment new source review (NNSR) air quality permits. New projects located within a nonattainment area must evaluate the most stringent air pollution controls (known as lowest achievable emission rate or LAER), demonstrate the project will not increase the concentration of the nonattainment pollutant more than a de minimis amount using air dispersion models, obtain off-sets for the increase in emissions of the nonattainment pollutant (or the pollutant pre-cursors in the case of reactive pollutants like ozone), and demonstrate the proposed project cannot be constructed outside the nonattainment area. Existing sources within a nonattainment area must conduct a cost-benefit analysis of additional air pollution controls (known as reasonably available control technology or RACT) to help bring the area back into attainment.
Significance of Lowering the NAAQS
In areas designated as attainment, proposed projects that are subject to prevention of significant deterioration (PSD) permitting requirements are required to demonstrate the project does not cause or contribute to a violation of the NAAQS using air dispersion models. This can be very challenging in many attainment areas because the ambient background values for PM with an aerodynamic diameter less than 2.5 microns (PM2.5) and ozone are more than 75% of the current NAAQS, leaving little room for the facility to successfully model attainment. If the facility is located near a nonattainment area the facility may also be required to demonstrate there is a de minimis air quality impact from the proposed project at the nonattainment area.
Background on PM NAAQS
The PM NAAQS was first established in 1971 for total suspended particulate (TSP). The NAAQS was changed from TSP to coarse particulate matter, more commonly known as PM10, in 1987. PM10 is a subset of TSP smaller than 10 microns in aerodynamic diameter and represents the inhalable portion of TSP. In 1997, the PM10 standard was augmented with standards for fine particulate matter, known as PM2.5, which are particles smaller than 2.5 microns in aerodynamic diameter. PM2.5 poses a greater risk to human health and contributes to regional haze and reduced visibility in national parks.
Following the 1987 change to PM10, U.S. EPA has designated 89 areas of the country as nonattainment. Fifty-nine of those areas have since been redesignated as maintenance areas, which means those areas are now meeting the 1987 PM10 standards of 150 micrograms per cubic meter (µg/m3) (24-hour) and 50 µg/m3 (annual – abolished following the 2006 review).
In 1997, U.S. EPA added the PM2.5 standard and designated 39 areas as nonattainment. Thirty-five of those areas have since been redesignated as maintenance areas, which means all but four of those areas are now meeting the 1997 PM2.5 standards of 65 µg/m3 (24-hour) and 15.0 µg/m3 (annual). In 2006, U.S. EPA lowered the 24-hour PM2.5 standard to 35 µg/m3, and 32 areas were designated as nonattainment. Eighteen of those areas have now been redesignated as maintenance areas. Following the last five-year review, U.S. EPA lowered the annual PM2.5 standard to 12.0 µg/m3 in 2012. Nine areas were designated nonattainment and six remain nonattainment areas. In 2016, U.S. EPA revoked the 1997 standard except in the four remaining areas designated as nonattainment.
U.S. EPA Proposed Action on 2020 PM NAAQS
The final PM ISA and CASAC review were completed in December of 2019. U.S. EPA published the final PA for the PM NAAQS in January 2020. The final PA evaluated retaining the current PM2.5 annual standard of 12.0 µg/m3 and alternative annual standards between 10.0 and 8.0 µg/m3 based on the updated science. The final PA also evaluated the current 24-hour PM2.5 standard of 35 µg/m3 and one alternative standard of 30 µg/m3. The final PA concluded the available science supports retaining the current 24-hour PM10 standard of 150 µg/m3. No alternative standards were considered for PM10 in the PA.
The U.S. EPA Administrator proposed retaining the current NAAQS for PM on April 14, 2020. U.S. EPA is accepting public comments on the proposed PM NAAQS through June 29, 2020. Comments in support of retaining the current PM NAAQS may be critical to final action on the PM NAAQS. The timing of the final rulemaking is uncertain due to the Presidential Election on November 3, 2020. If the final action is not completed prior to the election and there is a change in administration, the new U.S. EPA Administrator may review the PA and arrive at a different recommendation for the PM NAAQS. Additional tightening of the existing PM NAAQS would make future air permitting efforts more complex, difficult, and time consuming.
Background on Ozone NAAQS
The ozone NAAQS was first established in 1971 as a 1-hour standard of 0.08 ppm for total photochemical oxidants. In 1979, the standard was converted into ozone and the 1-hour concentration limit was increased to 0.12 ppm.
The ozone NAAQS was changed to an 8-hour average of 0.08 ppm in 1997 and the 1-hour standard was revoked. In 2008, the 8-hour ozone standard was lowered to 0.075 ppm resulting in 47 nonattainment areas with 10 areas being redesignated as maintenance areas. The 1997 standard was revoked in 2015 following implementation of the more stringent 2008 standard. The 8-hour ozone standard was lowered again in 2015 to 0.070 ppm. Fifty-two areas were designated nonattainment and 51 areas remain nonattainment.
U.S. EPA Status on Ozone NAAQS
The ozone draft ISA was completed in September of 2019. U.S. EPA published the draft PA for the ozone NAAQS in October 2019. The draft PA concluded the available science supports retaining the current 8-hour ozone standard of 0.070 ppm (70 ppb). No alternative standards were considered in the draft PA. The CASAC provided comments on the draft ISA and draft PA in February 2020. The final ozone ISA was released in April 2020. Be on the lookout for the final PA and the proposed action on the ozone NAAQS five-year review over the next few months.
U.S. EPA Releases Updated Permit Modeling Guidance
U.S. EPA released DRAFT Guidance for Ozone and Fine Particulate Matter Permit Modeling in February 2020. The draft guidance updates the 2014 PM2.5 modeling guidance to reflect 2017 revisions to the 40 CFR Part 51 Appendix W (Guideline on Air Quality Models). The draft guidance also consolidates the 2016 guidance on use of chemical transport models, the 2017 guidance on photochemical grid models, the 2018 guidance regarding significant impact levels (SILs), and the 2019 modeled emission rates for precursors (MERPs) guidance. The guidance is expected to be finalized in late 2020.
One notable change in the draft guidance is the requirement to only include those precursors emissions in a MERPs analysis that are greater than PSD significant emissions rate (SER) thresholds. This is an update from previous guidance which required all precursor pollutants to be included in a MERPs analysis. ALL4 has recently assisted clients with this complex set of modeling requirements and working through various modeling options with the permitting authority and U.S. EPA to successfully model attainment of the PM2.5 and ozone NAAQS.
CAERS Update for Georgia: Bulk Upload Templates
Facilities in Georgia subject to annual air emission inventory reporting requirements are working through the challenges of a new reporting system. The Georgia Environmental Protection Division (GEPD) is participating as a pilot state for the U.S. Environmental Protection Agency (U.S. EPA). Facilities are required to utilize the “Combined Air Emissions Reporting System” (CAERS) within U.S. EPA Central Data Exchange (CDX) to report 2019 annual air emissions. Check out Caleb Fetner’s blog post, “Combined Air Emissions Reporting: Coming to a State Near You!” for more details on CAERS. As ALL4 continues to utilize CAERS, we will provide updates, tips, and tricks regarding the system.
CAERS has two methods of reporting emissions data, bulk upload via spreadsheet template or manual entry in the CAERS portal. It is anticipated that spreadsheet templates will be created using 2018 facility information and made available to each facility in early May. However, these templates will require some additional information before they will be ready for bulk upload. A new feature of CAERS is mapping the control pathway [i.e., mapping emissions from an emissions source through a control device(s) and out a release point(s)]. This can either be completed in the spreadsheet template or manual entry in the CAERS portal. Based on ALL4’s experience in CAERS so far, mapping the control pathway is one of the more time-consuming tasks in using the new system. Using the CAERS portal for this task appears to be more efficient than utilizing the bulk upload feature. Once the control pathway has been created for future reporting cycles, the bulk upload feature may be the route to go. It is noted that using the bulk upload feature will override any report or edits have been started in the CAERS portal, as the system will default to what is in the spreadsheet template. Based on ALL4’s experience, it is best to use one method all the way through to prevent any data loss.
CAERS will also have a bulk download feature available in future reporting periods to gather facility and emissions information from the previous reporting year and compiling it into a spreadsheet template as announced in a recent U.S. EPA training webinar. This will allow for efficient and simplistic updating of facility and emissions information within a CAERS-friendly format. After the spreadsheet template is updated by the facility, the preparer can easily begin a new emissions inventory report by utilizing the bulk upload feature. After the spreadsheet template is uploaded, CAERS has a series of quality control checks. An initial checkpoint will review the spreadsheet to ensure the proper cells are completed and the system provides details regarding the tab and cell that needs editing. A second quality checkpoint will review the data before it is ready for submittal. The quality checkpoint can give you two notifications, warnings and errors. A warning notification will direct you to check data but will not prevent you from submitting the report. An example of a warning can be the emissions for NOx for an emissions unit is the same as last year, suggesting it may not have been updated. An error notification will not allow you to submit until each error has been addressed. An example of an error notification can be the unit of measurement for throughput and the emissions factor do not match, so emissions could not be calculated.
Please be sure to check out ALL4’s CAERS webcast to learn more about the system and big picture watch outs as more of your Facility’s data exist on the CDX. If you would like more information on how to get started in CAERS or questions as you use the system, email us at info@all4inc.com or call us at 678-460-0324 ext. 217.
Cleaner Air Oregon, Four Key Takeaways
“As a cancer survivor, I must ask for much stronger protections in the Cleaner Air Oregon plan. As currently written, it does little to bring down cancer risk.”
- Public Comment provided during the October 2017 – January 2018 Oregon Department of Environmental Quality (ORDEQ) Comment Period
In April 2016, Governor Kate Brown launched the Cleaner Air Oregon (CAO) rulemaking process after communities raised concerns about exposure to potentially harmful heavy metals and chemicals emitted as pollutants from factories and other industrial sources. This program, which targeted a list of “Toxic Air Contaminants” (TAC), was a complete regulatory overhaul and was adopted by Oregon in November 2018 to close perceived regulatory gaps that remained in the various Federal programs to control air toxics. It has now been over a year since these rules have been put into effect, so how have they begun to impact businesses?
- Existing facilities have been prioritized and are slowly being “called in”
Any existing, permitted facility should be aware that ORDEQ has given them a prioritization score, placed them into one of four priority groups, and has begun to “call-in” Group 1 facilities. Once a facility is called-in, a regulatory clock starts ticking on a number of CAO requirements. The facility will be required to complete an analysis (Level 1, 2, 3 or 4 Risk Assessment) based upon the permitted emissions sources to evaluate their air toxics emissions. The level of analysis used impacts the complexity of analysis, associated costs, and timeline for compliance. Additionally, as part of the CAO process, each facility has a dedicated web page on ORDEQ’s website detailing the facility’s purpose, address, air permits, and assessment status.
Since beginning the call-in process, eight facilities (two in each ORDEQ Region) have been asked to start the CAO process which begins with the submittal of a TAC emissions inventory. Of these eight facilities, six facilities are in the process of completing the air toxics analysis, and two have met and completed the CAO evaluation. The two facilities that have completed the CAO evaluation met Level 1 Risk Assessment requirements, so they were not required to complete air dispersion modeling. This sped up CAO’s approval and made the call-in process for these facilities straightforward. For an existing facility, this should raise concern, however, because it is expected that most facilities in Group 1 and Group 2 will to need to conduct a CAO Level 3 Risk Assessment, which involves the use of U.S. EPA’s recommended air dispersion model AERMOD. The other six facilities that are conducting Level 2 and 3 Risk Assessments are in various stages of submittal, but for many the process has taken up to a year. This delay in approval of the six larger facilities could signal future project delays, increased costs, and additional work. If your facility has never completed an AERMOD analysis, we recommend you get started ahead of your call-in.
- CAO requirements are still evolving
In the fall of 2019, an ALL4 client began the process of applying for an air permit for a new facility. Being a new facility, the company referred to the guidelines provided on the ORDEQ website and set up a pre-application meeting to discuss applicable permit requirements and forms. However, looking back, the meeting provided limited insight. Much of the guidance provided by the agency in the pre-application meeting shifted in subsequent discussions during application preparation due to changes in direction from CAO.
Will sources be required to submit the same documentation a year from now? It is unclear. New businesses need to understand that this program is still in its infancy and still taking shape, so they will likely need to work closely with the ORDEQ to meet changing conditions to obtain a new permit.
- CAO requirements are unique
CAO has unique requirements for determining source emissions. Unlike other state agencies which allow facilities to reference U.S. EPA AP-42 emissions document for Hazardous Air Pollutant (HAP) emissions factors, CAO provides facilities with TAC emissions factors from a combination of sources (e.g., South Coast Air Quality Management District, Ventura, National Council for Air and Stream Improvement) for a specific source category and fuel type. According to the agency, these are conservative factors that should be applicable to all equipment in the given emissions source category (e.g., diesel-fired internal combustion engines). However, these emissions factors don’t take into consideration unit size, manufacturer year, or other source specific factors. Facilities should be aware that they will be held to these given emissions factors and could be required to source test for TAC to show compliance.
Additionally, a unique CAO requirement compared to many other state agencies is the need for facilities to account for cold startup emissions in their air toxics analysis for internal combustion engines. The calculations required are extremely conservative and do not consider source specific factors unless a facility can support alternative numbers.
- Air Dispersion Modeling can get complicated fast
The CAO Level 1 Risk Assessment utilizes dispersion factors that are based on conservative worst-case screening air dispersion modeling results to estimate a worst-case scenario of possible risk. The only site-specific dispersion information that is utilized as part of the Level 1 Risk Assessment is the stack height (or area for fugitive sources) and distance to the property line. For the most part only facilities that have small emissions rates and stack heights and larger distances to property line (or at least 2 out of the 3) will be able to conduct a CAO Level 1 Risk Assessment.
A Level 2 Risk Assessment involves the use of AERMOD in screening mode (i.e., AERSCREEN). AERSCREEN incorporates use of site-specific stack characteristics, building information (to account for building downwash), terrain data, specific exposure locations, and site-specific land use parameters. However, AERSCREEN still relies on a screening meteorological dataset similar to the Level 1 Risk Assessment. Screening meteorological data is a worst-case matrix of all the meteorological conditions that could occur (and some combined conditions that almost never occur). The Level 3 Risk Assessment incorporates the use of AERMOD which is similar to AERSCREEN in every way except the use of actual meteorological data (usually collected at nearby airports). Since, AERMOD and AERSCREEN are so similar in their setup, ALL4 usually recommends skipping AERSCREEN and going straight to AERMOD which will produce fewer overly conservative results. A Level 4 Risk Analysis is an extremely comprehensive model that involves considering bioavailability of TACs and modifying exposure assumptions. Most facilities will not be required to complete the Level 4 Risk Analysis.
For those familiar with and who may have run SCREEN3 (the screening model to AERMOD’s predecessor ISC), AERSCREEN and AERMOD are more complicated and require the development of more input information necessary to run the more complicated dispersion calculations. What also gets complicated fast is the amount of data that is necessary to manage. On average facilities could be reporting anywhere from 10-50 TACs. Multiply that by the number of emissions sources, and then multiply it again by the number of exposure locations ORDEQ is requesting (typically 7,000 locations). Finally multiply your number again by 43,824 hours (the number of hours in the required 5-year meteorological dataset). Very quickly your CAO Risk Assessment includes over a million datapoints. Therefore, it’s not only necessary to have a trained air quality modeler involved, but you also need to be able to manage a large amount of data. This becomes increasingly important when you need to start analyzing the modeling results to determine what sources and what TAC may be driving risks and therefore require refinement. ALL4 has developed programming scripts specifically for managing the AERMOD results from a CAO Level 3 Risks Assessment.
If you’re interested in getting started on a preliminary CAO analysis before you’re called-in, looking to build or expand your next facility in Oregon, or have any questions about the process, please feel free to contact us. If you’re in Oregon already, don’t be surprised if you hear from us directly as we seek to communicate what we have learned so far, identify where facilities may need assistance, and to potentially “compare notes” with other facilities that have started the CAO process.
