CHAPTER 4 OPERATING IN A WORLD OF NON-ATTAINMENT: NATIONAL AMBIENT AIR QUALITY STANDARDS AND IMPLICATIONS FOR ENERGY DEVELOPMENT

• Jurisdiction: United States

Air Quality Issues Affecting Oil, Gas, and Mining Development in the West
(Feb 2013)
CHAPTER 4
OPERATING IN A WORLD OF NON-ATTAINMENT: NATIONAL AMBIENT AIR QUALITY STANDARDS AND IMPLICATIONS FOR ENERGY DEVELOPMENT
Jay Haney
Air Quality Modeling Group, ICF International
San Rafael, California
Randy Dann
Davis Graham & Stubbs LLP
Denver, Colorado

JAY L. HANEY is the Technical Director of the Air Quality Modeling Group at ICF International in San Rafael, California. He has over 32 years of experience at ICF conducting air quality studies for ozone, carbon monoxide, mercury deposition, particulate matter (PM), and visibility to support air quality planning and management activities. He has worked with numerous federal, state, and local agencies and commercial clients and has managed more than 50 ozone, PM2.5, and mercury modeling studies, including those supporting State Implementation Plan (SIP) development for Atlanta, Baton Rouge, Memphis, and Shreveport. Mr. Haney specializes in emission inventory development, meteorological data analysis, and air quality modeling and manages projects for various offices of EPA, the Bureau of Land Management (BLM), the Bureau of Ocean Energy Management (BOEM), a number of state agencies, and a variety of commercial clients. Mr. Haney recently managed the Virginia Mercury Study, an air quality modeling analysis of mercury deposition to Virginia waterways, and is currently managing the air quality analyses for two oil and gas development EIS's being conducted for BLM in Wyoming. He is an American Meteorological Society Certified Consulting Meteorologist (CCM) and has B.S. and M.S. degrees in meteorology from Saint Louis University.

I. "COOPERATIVE FEDERALISM" - EPA DEVELOPMENT OF NATIONAL AMBIENT AIR QUALITY STANDARDS AND STATE IMPLEMENTATION

The Clean Air Act ("CAA") is often referred to as a model of (or experiment in) "cooperative federalism."¹ Under the statute, EPA is required to develop national air quality standards, and the states are required to develop and implement state air quality laws and regulations to ensure state air quality meets the national standards. When state air quality does not meet these national standards, the area is then designated "nonattainment," which triggers stricter emission control and other requirements for emission sources operating in or near the nonattainment area. The discussion below provides a brief overview of EPA's process and procedures in promulgating national air quality standards and the states' implementation requirements.

A. EPA NAAQS Development and Review

The CAA imposes a mandatory duty on EPA to identify and list air pollutants found to be emitted by "numerous and diverse" mobile or stationary sources and that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare."² For each listed air pollutant, EPA is required to issue air quality "criteria" that "accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air[.]"³ EPA's Office of Research and Development publishes these criteria in a "Criteria Document." Based on the Criteria Document, EPA is then required to promulgate a primary and secondary National Ambient Air Quality Standard ("NAAQS") for each air pollutant for which air quality criteria have been issued (i.e., "criteria pollutants").⁴ EPA has established NAAQS for the following six pollutants: ozone (O3), particulate matter (PM), sulfur

[Page 4-2]

dioxide (SO2), nitrogen oxide (NOx), carbon monoxide (CO), and lead (Pb).⁵ NAAQS are composed of two standards: primary and secondary.

Primary NAAQS are ambient air quality standards required to protect (with an adequate margin of safety) the public health, including protection of "sensitive" populations such as children, asthmatics, and the elderly.⁶ Courts have consistently interpreted the CAA to preclude EPA's consideration of economic costs, attainability, and technical feasibility in setting NAAQS--public health effects are the only permissible basis for setting primary NAAQS.⁷ Secondary NAAQS are ambient air quality standards that are required "to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutants in the ambient air."⁸ "Public welfare" is defined to include effects on soils, water, crops, wildlife, weather, economic values, visibility and climate, and personal comfort and well-being.⁹ In practice, secondary NAAQS have been of minimal import, as EPA has set primary and secondary NAAQS at the same level for most criteria pollutants. A chart detailing the averaging time, levels, and forms for the current primary and secondary NAAQS is set forth in Section II below.

The CAA requires EPA to review the NAAQS (the underlying science and standards) at five-year intervals.¹⁰ Below is a brief summary of the NAAQS review process, as detailed by EPA:¹¹

Planning: The planning phase of the NAAQS review process begins with a science policy workshop, which is intended to gather input from the scientific community and the public regarding policy-relevant issues and questions that will frame the review. Drawing from the workshop discussions, EPA prepares an Integrated Review Plan (IRP) that presents the schedule for the entire review, the process for conducting the review, and the key policy-relevant science issues that will guide the review.

Integrated Science Assessment (ISA): This assessment is a comprehensive review, synthesis, and evaluation of the most policy-relevant science, including key science judgments that are important to inform the development of the risk and exposure assessments, as well as other aspects of the NAAQS review.

Risk/Exposure Assessment (REA): This assessment draws upon information and conclusions presented in the ISA to develop quantitative characterizations of exposures and associated risks to human health or the environment associated with recent air quality conditions and with air quality estimated to just meet the

[Page 4-3]

current or alternative standard(s) under consideration. This assessment includes a characterization of the uncertainties associated with such estimates.

Policy Assessment (PA): This assessment provides a transparent staff analysis of the scientific basis for alternative policy options for consideration by senior EPA management prior to rulemaking. Such an evaluation of policy implications is intended to help "bridge the gap" between the Agency's scientific assessments, presented in the ISA and REA(s), and the judgments required of the EPA Administrator in determining whether it is appropriate to retain or revise the NAAQS. In so doing, the PA is also intended to facilitate the Clean Air Scientific Advisory Committee's (CASAC's) advice to the Agency and recommendations to the Administrator, as provided for in the CAA, on the adequacy of the existing standards or revisions that may be appropriate to consider. The PA focuses on the information that is most pertinent to evaluating the basic elements of the NAAQS: indicator, averaging time, form, and level. Scientific review during the development of these documents is thorough and extensive.

Rulemaking: Taking into consideration the information in the ISA, REA(s), and PA and the advice of CASAC, EPA develops and publishes a notice of proposed rulemaking that communicates the Administrator's proposed decisions regarding the review of the NAAQS. A public comment period, during which public hearings are generally held, follows publication of the notice of proposed rulemaking. Taking into account comments received on the proposed rule, EPA issues a final rule.

B. State Implementation

The states are charged with "primary responsibility for assuring" that air quality within the state meets the NAAQS.¹² The CAA requires states to adopt and submit to EPA a State Implementation Plan ("SIP") designed to meet this state responsibility.¹³ A SIP is required to meet certain statutory criteria, but the states have "wide discretion in formulating [their] plan[s]."¹⁴ "[S]o long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation."¹⁵ The basic elements that must be included in a SIP include, for example:

• Enforceable emission limitations and other control measures or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights);

• Schedules and timetables for compliance;

[Page 4-4]

• Appropriate devices, methods, systems, and procedures to monitor, compile, and analyze data on ambient air quality;

• Enforcement measures;

• Stationary source permitting program;

• Prohibitions on significant contributions to nonattainment areas in other states;

• Prohibitions on interference with SIP measures of other states; and

• Citizen suit provisions; and

• Performance of air quality modeling.¹⁶

The EPA may disapprove a SIP revision only if "the revision would interfere with any applicable requirement concerning attainment" of the NAAQS "or any other applicable requirement" of the Act.¹⁷ EPA may issue a Federal Implementation Plan ("FIP") if a state fails to submit a SIP, or if EPA finds the SIP submittal to be inadequate.¹⁸ If EPA approves the SIP, it is added to the Code of Federal Regulations and becomes federal law.¹⁹ States must revise their SIP as necessary to ensure NAAQS compliance, or when found to be substantially inadequate by EPA (a/k/a "SIP Call").²⁰

States are required to designate areas within the state (i.e., Air Quality Control Regions²¹ ) as one of the following:

1) Nonattainment -- the area does not meet the...