Submitted as First Quarterly Update to AICHE Environmental Division Newsletter, reproduced in AICHE’s publication Environmental Progress and Sustainable Energy, published by Wiley, made available by Wiley Interscience here.
By Mary Ellen Ternes
On April 10, 2009, EPA proposed its Greenhouse Gas Reporting Rule, which will likely to be the first final EPA regulation of the GHG regulatory era. (See 74 Fed. Reg. 16448) (available here; public comment closed June 9, 2009). While EPA is moving forward with decisions regarding whether GHGs endanger health and the environment and Congress debates variations of comprehensive climate legislation, EPA's Greenhouse Gas Reporting Rule is quickly bringing the practical significance of GHG regulation home to virtually every industrial sector of the economy. This proposed rule would apply to entities in the listed categories that emit 25,000 tons per year, or more, of CO2 or equivalent GHG emissions (utilizing IPCC Global Warming Potential factors from its Second Assessment Report), and would require impacted entities to calculate, record and report actual emissions, including certain fugitive emissions, of CO2, CH4, N2O, HFC, PFC and SF6, beginning in 2010. The proposed estimation methods utilize simple and familiar gross heat and mass balance approaches derived from the 2006 IPCC Guidelines for National Greenhouse Gas Inventories (available here) including e.g., the U.S. GHG Inventory, CARB Mandatory GHG Emissions Reporting System, and UNFCCC Clean Development Mechanism. Specifically, estimations rely on emission measurement and/or facility-specific calculations, requiring direct measurement of emissions from units at facilities that already are required to collect and report data using CEMS under other Federally enforceable programs (e.g.,NSPS, NESHAP, SIPs) or facility-specific GHG calculation methods, which, depending on the source category, could include mass balance, measurement of the facility’s use of fuels, raw materials, or additives combined with site-specific measured carbon content of these materials, or other procedures that rely on facility-specific data. Based on discussions with impacted entities, comments may address implementation issues and implications of the rule, including fugitive emission calculations, aggregation of sources, the need for a practical de minimis rule, double counting and inconsistency in counting downstream emissions between sectors, as well as cost of implementation, self versus third-party verification and data confidentiality. Though the rule is only proposed, and may be delayed, it is unlikely that the rule will not be adopted in final form. Therefore, the best advice at this point appears to be review of the proposal to determine which facilities will need to report, identification of actions that are necessary in order to begin tracking emissions, and a very careful review of the final rule, and its preamble, upon promulgation.
On April 24, 2009, EPA proposed its endangerment finding pursuant to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007). See 74 Fed. Reg. 18886 (available here; public comment closed June 23, 2009). With this finding, EPA concluded that the scientific evidence clearly indicates that atmospheric levels of the six greenhouse gases are at unprecedented elevated levels due to human activities, and that most of the observed global and continental warming can be attributed to this anthropogenic rise in greenhouse gases. Based on the total weight of evidence, EPA found that current and projected levels of the mix of the six greenhouse gases endanger the public health and welfare of current and future generations. With this proposed finding, EPA is not bound to promulgate regulations pursuant to any specific Clean Air Act provision, but may consider many options including Sections 108 (NAAQS), 112 (NESHAP), 111 (NSPS) and 115 (International Air Pollution). See Regulating Greenhouse Gas Emissions under the CAA, 73 Fed. Reg. 44354 (July 30 2008). However, draft climate change legislation, The American Clean Energy and Security Act of 2009 (ACESA or Waxman-Markey), would preempt CAA regulation of greenhouse gases as criteria pollutants (NAAQS), hazardous air pollutants (NESHAP) or as air pollutants subject to new source review pollutants (NSR), and establish a federal GHG cap and trade program separate and apart from the CAA. Thus, the race is on between the Obama Administration and Congress, where the administration is leveraging the specter of CAA regulation to prompt quick congressional action with the ACESA. Significantly, as currently drafted, ACESA would also promote renewable sources of energy, carbon capture and sequestration technologies, low-carbon fuels, clean electric vehicles, and the smart grid and electricity transmission; increases energy efficiency across all sectors of the economy, including buildings, appliances, transportation, and industry; promote green jobs. See here.
On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 (Recovery Act). Among other funds (superfund, diesel emissions and USTs), the Recover Act Clean Water State Revolving Fund and Drinking Water State Revolving Fund: $4 billion for assistance to help communities with water quality and wastewater infrastructure needs and $2 billion for drinking water infrastructure needs. A portion of the funding is targeted toward green infrastructure, water and energy efficiency, and environmentally innovative projects. See here.
Toxic Release Inventory
Just in time for the July 1, 2009 TRI reports: EPA will reinstate the TRI reporting requirements that existed prior to December 22, 2006, pursuant to the 2009 Omnibus Appropriations Act which prevented any funds from being spent on implementing the 2006 TRI burden reduction rule, codified at 50 C.F.R. pt. 372. See here.
Proposed Rules
NESHAP for Reciprocating Internal Combustion Engines (RICE). 74 Fed. Reg. 9698 (to be codified at 40 CFR 63, Subpart ZZZZ) (requiring post combustion controls, non-selective catalytic reduction for gasoline and natural gas engines, and afterburners of catalyzed diesel particular filters for diesel engines).
Final Rules
Relief for Biogas Stationary Turbine NSPS Implementation. 74 Fed. Reg. 11,858 (March 20, 2009) (to be codified at 40 C.F.R. pt. 60, subpart KKKK) (relieving operators burjning biogas from requirement to install additional sulfur dioxide controls).
Predictive Emissions Monitoring Systems (PEMs or “Performance Standard 16”). 74 Fed. Reg. 12,575 (March 25, 2009) (to be codified at 40 C.F.R. pts. 60 and 63) (effective date April 24, 2009).
NOTES:
On January 19, 2009, EPA formally changed the name of its Office of Solid Waste to the “Office of Resource Conservation and Recycling.” See here.
On March 16, 2009, EPA Administrator Jackson indicated EPA would terminate “National Performance Track.” Download PDF here.
Mary Ellen Ternes, a shareholder and leader of McAfee & Taft's Environmental Law practice group, also serves as co-chair of the American Bar Association's Climate Change, Sustainable Development and Ecosystems Committee as well as a director of the American Institute of Chemical Engineers' Environmental Division and co-chair of its Climate Change Section.