chapter 5a The Hidden Dimensions of Environmental Law Practice: U.S. EPA s Annual Grant Guidance and Requirements and Guidance Interpreting Regulatory Requirements Charles M. Taylor GT Environmental Westerville, Ohio
chapter 5a The Hidden Dimensions of Environmental Law Practice: U.S. EPA s Annual Grant Guidance and Requirements and Guidance Interpreting Regulatory Requirements Charles M. Taylor GT Environmental Westerville, Ohio I. CLEAN AIR ACT 103 AND 105 THE GRANT CARROT A. Grant Authority. Section 103 of the federal Clean Air Act (42 U.S.C. 7403) authorizes the U.S. EPA to provide training grants to air pollution control agencies to conduct research and training for the causes, effects, extent, prevention and control of air pollution. Section 105 of the federal Clean Air Act (42 U.S.C. 7405) authorizes the U.S. EPA to make grants to air pollution control agencies in an amount of up to three-fifths of the cost of implementing programs for the prevention and control of air pollution or implementation of national primary and secondary air quality standards. 1. Agencies must be qualified. 2. Grants may contain terms and conditions as the U.S. EPA Administrator finds necessary to carry out the purpose of the grants. 3. Maintenance of effort required. B. Annual Grant Guidance. The U.S. EPA Office of Air and Radiation and the U.S. EPA Office of Enforcement and Compliance Assurance issue written grant guidance on an annual basis. The grant guidance documents identify specific areas of emphasis, establish deadlines for completion of specific activities and establish minimum levels of required activities. 1. Office of Air and Radiation Program priorities for fiscal year 2006. 1 a. Implement eight-hour ozone, PM 2.5 and regional haze programs. 1 Federal fiscal year (FY) 2006 is the one-year period from October 1, 2005 through September 30, 2006. The Hidden Dimensions of Environmental Law Practice 5a.1
b. Implement the Clean Air Interstate Rule (CAIR). c. Implement the Clean Air Mercury Rule (CAMR). d. Implement the Integrated National Ambient Monitoring Strategy. e. Reduce emissions from existing diesel engines and equipment. f. Implement air toxics initiatives that focus on multi-media and cumulative risks. g. Issue Title V permits. h. Implement voluntary programs and other initiatives. 2. Office of Enforcement and Compliance Assurance Guidance for Air Program Activities for FY 2006. 2 a. Clean Air Act air toxics. i. Identify and address high risk pollutants. ii. Focus on major Maximum Achievable Control Technology (MACT) sources. iii. iv. Consider environmental justice in targeting MACT source investigations. Utilize and further develop targeting tools to identify and prioritize high risk sources. v. Identify and close data gaps. vi. Coordinate enforcement with states and tribes. b. Clean Air Act Non-Attainment New Source Review (NNSR) and Prevention of Significant Deterioration (PSD). i. Seventy-five percent of utility sector capacity evaluated by 2007. ii. Identify additional sectors where significant environmental benefit can be derived. 2 The Office of Enforcement and Compliance Assurance FY 2006 guidance identifies the following non-air priorities: Clean Water Act wet weather programs, Resource Conservation and Recovery Act mineral processing, tribal and financial responsibility. 5a.2 Environmental Law Seminar
c. Clean Air Act Stationary Source Program. i. NSPS/NESHAP/MACT. Evaluate Title V major sources and synthetic minors that emit or have the Potential to Emit (PTE) at or above 80% of the major source threshold. ii. Title V operating permits. Regions review and comment on 5% of new Title V permits and all permit renewals that have current or pending enforcement actions. Regions should review 50% of the annual Title V compliance certifications. iii. Stratospheric ozone protection. Proper CFC management should be a component of the 80% synthetic minor permit reviews. iv. Section 112(r) risk management plans. Emphasis should shift from having plans submitted to evaluating if plans are adequate. v. Enforcement. Actions should be consistent with the Policy on Timely and Appropriate Enforcement Response to High Priority Violations (HPVs). vi. Data quality and reporting. Regions and delegated agencies should enter all MDRs in AFS consistent with U.S. EPA policies and the ICR. II. EXAMPLES OF GUIDANCE IMPACTING SIGNIFICANT REGULATORY DETERMINATIONS UNDER NNSR, PSD, MACT AND TITLE V A. Example #1: Total PM 10 Emissions Includes the Sum of Filterable Particulate Matter (FPM) Plus Condensable Particulate Matter (CPM). U.S. EPA guidance 3 states that total PM 10 emissions must be considered when making determinations concerning major source or major modification determinations under NNSR, PSD and Title V. 1. The use of total filterable plus condensable PM 10 is more rigorous. 3 This guidance is articulated in a March 31, 1994 letter from Thompson G. Pace, Acting Chief SO 2 /Particulate Matter Programs Branch, to Sean Fitzsimmons, Iowa Department of Natural Resources. The letter was distributed by Mike Hopkins, Assistant Chief, Ohio EPA Division of Air Pollution Control, to Ohio EPA air permit staff in an e-mail dated May 25, 2005. The Hidden Dimensions of Environmental Law Practice 5a.3
2. Projects that are not new major sources or major modifications based on filterable PM 10 may be new major sources or major modifications based on total PM 10. a. E.g., distillate fuel oil combustion. The FPM emission factor is 2.0 lb/gallon and the CPM emission factor is 1.3 lb/gallon. b. E.g., natural gas combustion. The FPM emission factor is 1.9 lb/million cubic feet and the CPM emission factor is 5.7 lb/million cubic feet (i.e., the total PM 10 emission rate is more than three times the filterable PM emission rate). 3. FPM is determined by U.S. EPA Method 5 emission testing. CPM is determined by U.S. EPA Method 202. 4. Many permit decisions have not included CPM. B. Example #2: Volatile Organic Compounds (VOC) test results using Method 25 or Method 25A and some AP-42 emission factors may under report actual VOC emissions. U.S. EPA guidance 4 states that, depending on how test data will be used, the results from Method 25 (which measures VOC in terms of carbon) and Method 25A (which measures VOC in terms of the specific calibration gas employed) may have to be adjusted to convert the test results to an as VOC basis before making determinations concerning major source or major modification determinations under NNSR, PSD and Title V. 1. The conversion of Method 25 results as carbon to as VOC can significantly increase the actual VOC mass emission rate. 2. Projects that are not new major sources or major modifications based on Method 25/Method 25A test results may be new major sources or major modifications based on the as VOC conversion. a. E.g., Method 25 test results for a fiberglass boat manufacturing process. The reported VOC emission rate as carbon from the Method 25 Test is 3.0 lb/hr. The conversion to the specific VOC being emitted from the fiberglass process (i.e., styrene) results in an adjusted VOC emission rate of 3.25 lb/hr (i.e., an 8.3% increase). 4 This guidance is articulated in a November 21, 1997 letter from Winston A. Smith, Director Air, Pesticides and Toxics Management Division, to Ron W. Gore, Alabama Department of Environmental Management. 5a.4 Environmental Law Seminar
b. E.g., Method 25 test results for a bakery oven using yeast doughs. The reported VOC emission rate as carbon from the Method 25 Test is 3.0 lb/hr. The conversion to the specific VOC being emitted from the bakery oven (i.e., ethanol) results in an adjusted VOC emission rate of 5.77 lb/hr (i.e., a 92.3% increase). 3. A requirement to perform a Method 25 test may not specifically state that the conversion must be performed. 4. Many permit decisions have not been based on the adjusted as VOC emission rates. The Hidden Dimensions of Environmental Law Practice 5a.5