(West Supp. 1996)) [hereinafter cited as CAA], at 108(a) (42 U.S.C.A. 7408(a)).

Transcription

1 SMOG PRECURSORS AND BIODIESEL Executive Summary In July 1997, EPA revised the national ambient air quality standards (NAAQS) for the criteria pollutants ozone (O3) and particulate matter (PM). The former PM standard applied to particles whose aerodynamic size is less than or equal to 10 micrometers, or PM 10. The revised PM standard added the monitoring of fine particles whose aerodynamic size is less than or equal to 2.5 micrometers, or PM 2.5. i For O3, the NAAQS revision replaced the previous.12 ppm 1-hour O3 standard with a.08 ppm 8-hour standard. ii No direct federal regulatory programs have been directed towards or derived from these new standards. The implementation of these standards will occur in the following three phases. First, a monitoring phase, which will last until Second, a designation phase, for classifying various geographical areas by degree of attainment, which will last into The last phase will be EPA s review of newly submitted State Implementation Plans (SIPs) that address regional compliance, which will extend into Biodiesel is a fuel for compression ignition (diesel) engines derived from renewable organic feedstocks such as vegetable oils or animal fats. The most recent Alternatives to Traditional Transportation Fuels published by DOE s Energy Information Agency (EIA) states that...a variety of engine tests that have shown that a 20% biodiesel blend (B-20) used in unmodified diesel engines reduces particulate matter and carbon monoxide considerably, total hydrocarbon emissions somewhat... iii Biodiesel can best be promoted within this context as an oxygenate additive for diesel fuels to lower particulate matter and carbon monoxide emissions from on- and off-road vehicles, as well as stationary and mobile power generators and heating units that burn diesel fuel. Regions within states that currently are not in, or anticipate falling out of, compliance with the existing CO and new PM standards should be good markets for biodiesel. Ambient Air Quality Standards Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is required to establish, and periodically revise, criteria documents for pollutants that may reasonably be anticipated to endanger public health or welfare. iv These documents, which describe in detail the health and welfare effect of the pollutant, serve as the scientific basis for the establishment of the national ambient air quality standards (NAAQS). Primary NAAQS standards are designed to i 62 Fed. Reg. 138, at (July 18, 1997). ii Id., at iii Energy Information Administration, U.S. Department of Energy, Alternatives to Traditional Transportation Fuels: 1995 (DOE/EIA-0585(95)), p.30 (1996). iv Clean Air Act, Pub. L. No , 104 Stat (1996) (codified at 42 U.S.C (West Supp. 1996)) [hereinafter cited as CAA], at 108(a) (42 U.S.C.A. 7408(a)). 1

2 protect public health, including sensitive populations such as children and the elderly, while secondary standards are designed to protect the public welfare, such as the effects of air pollution on vegetation, materials, and visibility. There are six criteria pollutants with primary standards: carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone (O3), particulate matter (PM), and sulfur dioxide (SO2). v The smog problems that afflict almost every major city are due to three of these pollutants: O3, CO, and PM. By 1996, EPA estimated that over 39.3 million people live in counties that violate the O3 standard (first in rank by population affected), 12.7 million people live in counties that violate the CO standard (second), and 7.3 million people live in counties that violate the PM standard (third). vi As of September 1997, 79 geographic areas, which include both counties and major metropolitan regions, violate EPA s current PM standard (first in rank by number of areas affected), 59 areas violate the current O3 standard (second) and 29 areas violate the CO standard (fourth; SO2 is third). vii Because the recent changes to ambient air quality were directed toward the smog problem, this paper will examine the status of all three criteria pollutants. Carbon Monoxide Carbon monoxide is a colorless, odorless gas. It is primarily a by-product of incomplete fuel combustion. In 1996, motor vehicle exhaust accounted for approximately 60% of CO emissions nationwide and over 90% in cities. viii Other sources of CO emissions include industrial processes, off-road fuel combustion and natural sources like wildfires. While O3 is a warm-weather problem, CO is a cold-weather problem. CO levels are increased in cold weather and at high altitudes. CO pollution reduces the ability of blood to deliver oxygen to body tissues. When inhaled it binds with hemoglobin that would otherwise transport oxygen through the blood. Because it reduces oxygen level in the blood stream, CO pollution can be especially harmful to individuals who suffer from cardiovascular diseases and fetuses, who already survive on minimal levels of oxygen derived from their mother s bloodstream. Maternal exposure to high concentrations of CO may pose the risk of permanent brain damage to fetuses. ix CO exposure also poses risks to healthy individuals. Oxygen deprivation can cause individuals to lose visual perception, manual dexterity v See, U.S. EPA, National Air Quality and Emission Trends Report, 1996 (1998) [hereinafter Report], at 1. vi Id., Figure 1-2, at 3. vii Id., at 2. Table A-13 of this document lists these non-attainment areas. They can also be found on the Internet at viii Id., at 9. ix Clean Air Act Standards: Hearing Before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 101 st Cong., 1 st Session, at 30 (1989). 2

3 and learning ability. At very high levels, such as running a car in an enclosed area, CO exposure will cause death by asphyxiation. x EPA has established two primary ambient air quality standards for CO: a 1-hour average of 35 parts per million (ppm) and an 8-hour average of 9 ppm. Measurement reporting for statistical, analytical and comparison purposes are based on the 8-hour average concentration. These concentrations are not supposed to be exceeded more than once a year. Areas that exceed this standard are classified as nonattainment for CO. No secondary standards were established for CO. xi The CAA Amendments of 1990 added two degrees of nonattainment to the existing CAA: moderate for levels between 9 and 16.4 ppm and serious for levels above 16.5 ppm. xii Graduated requirements were implemented based on degree of nonattainment. Moderate nonattainment areas are automatically upgraded to serious if they remain in nonattainment status for over six months. xiii Requirements for moderate nonattainment areas include: periodic inventory of emissions by source, vehicle inspection and maintenance, measures to reduce vehicle miles traveled (VMT), and demonstrations to prove the efficacy of future proposed measures. xiv Additional requirements for serious nonattainment areas include: the adoption of transportation control measures adequate to offset emissions growth resulting from increases in VMT and the use of oxygenated gasoline during the portion of the year in which that area is prone to high ambient concentrations of CO. xv Serious CO nonattainment areas in which stationary sources contribute significantly, rather than typical mobile transportation-based sources, are required to submit a plan revision for the control of major stationary sources in such atypical areas. EPA also has the discretion to relieve atypical CO areas of the oxygenated gasoline and transportation requirements. xvi Ozone Ground level ozone, the primary constituent of smog, is a pervasive pollution problem throughout the United States. Ozone is not emitted directly into the atmosphere, but is formed by the reaction of volatile organic compounds (VOCs) and nitrogen oxide (NOx) in the presence of heat x Report, supra note 5, at 9. xi Id. xii xiii CAA, supra note 4, 186(a) (42 U.S.C.A. 7512). Id., supra note 4, 187(a) (42 U.S.C.A. 7512a). xiv Id. xv Id., supra note 4, 187(b) (42 U.S.C.A. 7512a). xvi Id., supra note 4, 187(c) (42 U.S.C.A. 7512a(c)). 3

4 and sunlight. VOCs and NOx are primarily emitted from motor vehicles and industrial sources including manufacturing and power production. While the national total of VOCs emissions decreased 18% in the last ten years, NOx emissions increased by 5%. Weather patterns also have a strong effect on the level and transportation of ozone. For example, polluted air masses from the urban areas of the East Coast will often find their way downwind into rural areas of New England during the summer. xvii Because of the fluid nature of ozone formation and its consequences, EPA, in a public-private partnership with the 37 easternmost states, academia and industry, formed the Ozone Transport Assessment Group (OTAG) to study the ozone transport problem. xviii Based on OTAG s analysis, EPA issued a proposed rule on November 7, 1997 that budgets emissions of NOx and O3 for 22 eastern states and the District of Columbia. EPA expects to issue a final rule in before the end of The final rule will require these States and the District to revise their SIPs accordingly. xix Short term exposures to ambient O3 concentrations have been linked to a variety of respiratory problems including lung infection and inflammation, chest pains, coughing, and increased susceptibility to preexisting respiratory diseases. Exertion and exercise intensifies these effects. Long-term exposure can lead to premature aging of the lungs and/or chronic respiratory illness. O3 pollution can also have severe effects upon vegetation, reducing agricultural production and increasing plant and forest susceptibility to disease, insect attack or bad weather. xx In 1979, EPA established 1-hour primary and secondary standards for ozone. The primary NAAQS for O3 was set at.12 ppm daily maximum 1-hour concentration, not to be exceeded more than once per year on average. The secondary standard was set at the same level. xxi The CAA Amendments of 1990 added five new levels of classification for O3 nonattainment areas: marginal, moderate, serious, severe and extreme. Each classification carries graduated requirements based on the degree of severity. These requirements range from source inventories, vehicle inspections and the use of reasonably available control technologies for marginal areas, add annual emission reduction targets for moderate areas, and further add attainment demonstrations, control of stationary sources, enhanced vehicle inspections and maintenance, and reformulated gasoline requirements for serious areas. Areas that fail to attain will also be bumped up to the next highest level of nonattainment and must then meet the requirements of that higher level. xxii Additional enforcement measures for severe and extreme O3 nonattainment areas include xvii Report, supra note 5, at 21. xviii Id. xix See, 62 Fed. Reg. 216, (November 7, 1997). xx Report, supra note 5, at 21. xxi Id. xxii CAA, supra note 4, 181(b)(2) (42 U.S.C.A. 7511(b)(2)). 4

5 requirements for the use of clean fuels or advanced control technologies, strict transportation controls, and levying fines based on each ton of emitted precursor. xxiii Another discretionary sanction available to EPA, reserved for extreme violations, is the prohibition of transportation projects and highway monies previously approved by the Department of Transportation, with the exception of projects or grants related to safety or the reduction of emissions. xxiv The CAA Amendments of 1990 also added controls of NOx emissions from major stationary sources in O3 nonattainment areas. xxv This was one of the first recognitions that controlling O3 pollution would require the regulation of both VOCs and NOx. On July 18, 1997 EPA replaced the 1-hour primary (health-based) standard with an 8-hour standard at a level of.08 ppm based on a 3-year average of the annual fourth-highest daily O3 concentration. xxvi The secondary standard was also changed to mirror the new primary standard. The former exceedance-based standard was replaced with a concentration-based standard to more accurately measure and control the type and level of exposures held to have negative effects on human health and vegetation. xxvii The 1-hour standard will continue to apply to areas currently in nonattainment until those areas become in attainment, after which the more stringent 8-hour standard will be phased-in. xxviii While it is impossible to predict with complete accuracy what impact the new standard will have on the current classification of areas, one indicator of stringency may lie in a comparison analysis of changes within the two standards. In the last ten years, the composite average of the 1-hour daily maximum O3 concentrations declined by 15%, while the composite average of 8-hour fourth highest daily maximum concentrations decreased only by 11%. xxix Not only may some areas currently in attainment find themselves in nonattainment under the new standard, getting back into attainment may require even more stringent efforts and controls. Some measure of relief from the new standard exists for transitional areas or areas that meet the 1-hour standard but do not meet the new 8-hour standard. Transitional areas that participate in xxiii Id., supra note 4, B (42 U.S.C.A f). xxiv Id., supra note 4, 179(b) (42 U.S.C.A. 7509(b)). xxv Id., supra note 4, 182(f) (42 U.S.C.A. 7511a(f)). xxvi 62 Fed. Reg. 138, xxvii Report, supra note 5, at 27. xxviii Implementation Plan for Revised Air Quality Standards, (Memorandum of July 16, 1997 from the President to the Administrator of the Environmental Protection Agency), 62 Fed. Reg. 138, [hereinafter Implementation Plan]. xxix Report, supra note 5, at 28. 5

6 regional strategies to deal with O3 pollution, namely OTAG members, as well as States that submit SIPs early that address the new 8-hour standard will need little to no additional new local emission reductions. For these areas, the EPA will not force additional local planning requirements. xxx Under the current implementation plan, EPA has 3 years (July 2000) to redesignate areas and States have another 3 years from that date (July 2003) to revise existing SIPs to incorporating the new standards and attainment requirements. xxxi Particulate Matter Particulate matter is the general term used for the mixture of solid particles and liquid droplets found in air. These particles vary widely in size and can come from many different stationary and mobile sources as well as from natural sources. They can be emitted directly from a source or formed through the transformation of gaseous emissions. Man-made sources include emissions of diesel fuels, wood smoke and secondary particulates like sulfate and nitrates. Natural sources include wildfires and windblown dust, though most of the naturally occuring particulates are larger than 10 microns in diameter. Particulate matter is the major cause of reduced visibility, commonly referred to as smog and haze. xxxii Particulate matter, alone and in combination with other pollutants, has been linked to increased respiratory symptoms and disease, and decreased lung function. Particulate matter has also been linked to the secondary effects of soiling and damage to materials. xxxiii One especially dangerous form of particulate matter pollution are the carbon-based particles that result from incomplete combustion in diesel engines. EPA data indicates that these particulates may be carcinogens. xxxiv In 1987, EPA replaced the existing total suspended particulate standard with an ambient standard based on particles less than or equal to 10 microns in diameter, PM 10. PM 10 particles were chosen as a standard because this size of particle can pass through the natural filters in the respiratory system and enter deep into the lungs. Both long and short-term PM 10 standards were implemented. The long term standard specifies an expected annual arithmetic mean not to exceed 50 g/m 3 averaged over 3 years. The short-term (24-hour) standard of 150 g/m 3 is not to be exceeded more than once per year on average over three years. The secondary (welfare-based) xxx Implementation Plan, supra note 28, at xxxi Id., at xxxii Report, supra note 5, at 40. xxxiii Id. xxxiv See, EPA, Health Assessment Document for Diesel Emissions, SAB Review Draft Report, February 1998, (EPA/600/8-90/057C) at (not for citation or quotation); see also, Diesel Deflated in Warming Battle, Washington Post, May 3, 1998, at A3. 6

7 standards were set identically. xxxv On July 18, 1997, EPA revised the PM 10 standard by adding two new standards for PM 2.5, particles with aerodynamic diameters of 2.5 microns and smaller. The long-term PM 2.5 standards were set at 15 g/m 3, based on a 3-year average annual arithmetic mean concentrations from community-oriented monitors, and the short-term (24-hour) standard at 65 g/m 3 3-year average of the 98 th percentile of PM 2.5 concentrations in population-oriented monitors. The 24-hour PM 10 standard was also revised to be based on the 99 th percentile of 24-hour PM 10 concentrations at each monitor. The secondary standards were set identically. xxxvi Here, like with the changes to the O3 standard, concentration-based standards were chosen to replace exceedance-based standards because of the association with health effects testing and to avoid the counting of varying exceedances equally. xxxvii Again, it should be noted that the new annual and 24-hour PM 2.5 concentration-based standards do not replace the old annual and 24-hour PM 10 standards, but are supplemental to the existing exceedance-based annual PM 10 standard and a revised concentration-based 24-hour PM 10 standard. PM 2.5 particles are referred to as fine particles, while PM 10 particles are referred to as course. Both fine and course particles can come directly from either soil-related sources such as roads, construction and agriculture or from combustion-related sources such as diesel exhaust, wood burning and boilers. Secondary sources of both particulate matter are gaseous emissions of SO2 and NOx, which again results from the combustion of fossil fuels. The key difference between the source nature of the two PM standards is that for PM 2.5 the soil component is much lower and the fossil fuel combustion components, both direct and indirect, are much higher than for PM 10. The potential implications of these new standards can be best summed up by EPA itself: The contribution of sulfate, nitrate and combustion particles increases dramatically relative to soil particle contributions in the PM 2.5 fraction (in comparison to the PM 10 fraction [sic]). This has obvious implications for control strategies. xxxviii The CAA Amendments of 1990 required the initial PM designations of areas as either in attainment, nonattainment or unclassifiable and to adjust initial designations within 18 months after the first classification. All areas in nonattainment were to be initially deemed as moderate with the potential to be revised as serious. Thus, within 2 to 3 years of initial classification, an adjusted classification is supposed to be implemented after issuance of a new NAAQS. xxxix Nevertheless, the President has decided that EPA has 5 years (July 2002) to review the new PM xxxv Report, supra note 5, at 30. xxxvi 62 Fed. Reg. 138, (July 18, 1997). xxxvii Report, supra note 5, at 34. xxxviii Office of Air Quality and Standards, EPA, PM-2.5 Composition and Sources, at 2 (July 16, 1997). xxxix CAA, supra note 4, 188 (42 U.S.C.A. 7513). 7

8 criteria and standards and to begin designating areas as to degree of attainment. In the meantime, all areas will be designated as unclassifiable within 3 years (July 2000) for the PM 2.5 standard. During this period EPA will continue to sponsor research about the health effects of PM exposure as well as the species and sources of PM 2.5 particles. EPA must also create and implement a new monitoring network within 2 years and then gather 3 years of data. States will have an additional 3 years beyond EPA s 5 year horizon (July 2005) to develop and submit SIPs that incorporate the new standards and designations. xl Requirements for areas that are deemed in moderate nonattainment include source permitting, attainment demonstrations and the use of reasonably available control measures for new and existing stationary sources. Requirements for areas that are deemed in serious nonattainment include the same measures plus the use of the best available control measures for both new and existing stationary sources. These control measures must be applied not only towards the stationary emitters of the particulate matter particles themselves, but also against the emission of the SO2 and NOx precursors. xli General Requirements for SIPs SIPs must include enforceable emission limitations and control measures, establishment and operation of systems that monitor, analyze and report emission data, adequate regulation of stationary sources including the prohibition of existing emissions or any proposed construction that would jeopardize the ability of the State to meet attainment levels, use of emission permits and related fees, as well as assurances that the State itself has adequate resources to administer and enforce proposed emission controls. States then have a year, under a conditional approval from EPA, to correct any deficiencies in their SIP. If the State still fails to correct the deficiencies in its SIP, EPA may revise the SIP itself or may implement a federal implementation plan (FIP) that will correct the deficiencies. xlii The threat of FIPs has been seen as a particularly effective motivator for the correction of SIPs. States that are in nonattainment that fail to submit a SIP, or submit an inadequate SIP are subject to mandatory sanctions including the prohibition of transportation projects and monies, except those related to safety or emission controls (mass transit), as well an increased offset ratio of 2-to- 1 for permit applications for new or modified stationary sources. xliii Other SIP requirements reserved for nonattainment areas include: comprehensive inventories of actual emissions, permits for new and modified major stationary sources, the use of reasonably available control technology for stationary sources, and requirements that will achieve reasonable further progress, which is defined to mean the achievement of milestones or specific levels of emission xl Implementation Plan, supra note 28, at xli CAA, supra note 4, 189 (42 U.S.C.A. 7513a). xlii CAA, supra note 4, 110 (42 U.S.C.A. 7410). xliii CAA, supra note 4, 179 (42 U.S.C.A. 7509). 8

9 reductions. xliv Under the CAA Amendments of 1990, States that request reclassification of a nonattainment area into an attainment area must also submit a maintenance plan that demonstrates that the NAAQS will be maintained for at least 10 years. The maintenance plan must include adequate measures demonstrating transportation planning as well as any contingency measures EPA deems necessary for control of the air pollutant(s) concerned prior to the redesignation of that area. xlv These maintenance requirements will become important to States that meet existing PM and O3 standards but have yet to be deemed in or out of attainment for the new PM and O3 standards. Conclusion EPA will, perhaps wisely, not predict what impact the new smog standards will actually have on the efficacy and value of existing State SIPs. Frankly, EPA may simply be unable to make such a prediction. However, the nature and timing for compliance with the new standards suggests that transition should not be overly jarring for the States or the economy. The new O3 standard is implemented with a strong transitional classification option which is aimed at minimizing the need for extensive new local planning requirements or hindrances on economic growth. Regional plans, which focus on utility emissions, can also be used to minimize impacts on existing SIPs. Last, new O3 pollution controls do not have to be implemented until 2004 and final compliance determinations will not be made until The new PM standard is, at this point in time, basically little more than a call for a new monitoring network and data collection, which will take over 5 years to implement, and a new full series of scientific and health reviews. After that point, States will have 3 more years to adjust their SIPS to incorporate the new standards and EPA will take another 18 months to review the SIPs. Compliance measures for the new PM standards may not take effect for almost 12 years, a period longer than EPA s own current PM data series. xlvi Nevertheless, because these new standards point more and more towards the need for improving diesel and related fuel emissions from both stationary and mobile sources, biodiesel as a diesel fuel oxygenate, could become a means to help reduce PM and CO emissions in those nonattainment areas. Concerns may arise based on data that suggests biodiesel blends may increase NOx emissions for areas that are in nonattainment with O3 standards. xlvii Further studies conducted on xliv CAA, supra note 4, 172(c) (42 U.S.C.A. 7502(c)). xlv CAA, supra note 4, 175(a) (42 U.S.C.A. 7505(a)). xlvi Office of Air and Radiation, EPA, Achieving Clean Air in Common Sense, Flexible Ways, Internet Fact Sheet, (June 25, 1997). xlvii See, Energy Information Administration, U.S. Department of Energy, Alternatives to Traditional Transportation Fuels: 1995 (DOE/EIA-0585(95)), p.30 (1996). 9

10 the efficacy of biodiesel in reducing fine PM emissions as well as ways to improve biodiesel s NOx emissions, especially in stationary sources, would assist this effort. 10

11 ENDNOTES 11