Achievements noted as well as need for change

Since its passage into law in 1970, the Clean Air Act (CAA) has led to remarkable improvements in the nation’s air quality.  But many aspects of the statute are outdated and congressional revision is long overdue.  That was the overall view of representatives of state and local environmental agencies who testified at a congressional hearing on federal and state cooperation under the CAA.  The hearing was held November 20, 2012, by the House Subcommittee on Energy and Power.   Problems commonly cited by the witnesses included complex layers of redundant regulations resulting from the CAA requirement to review and potentially revise the National Ambient Air uality Standards (NAAQS) for criteria air pollutants too frequently; decreasing availability of state tools and the technology needed to meet increasingly stringent NAAQS; long delays in EPA approval of state/local revisions to state implementation plans (SIPs); confusion in understanding the way the Agency imposes New Source Review (NSR) requirements; and the absence of more market-based provisions in the CAA to address interstate transport of air pollution.

Under the CAA, the EPA sets every major standard and, with the exception of vehicle and fuel standards, the states are tasked with meeting those standards by developing SIPs that they then implement pending EPA’s approval.  This, in theory, is the core of the cooperative federal/state relationship underlying the success of the CAA.  While state and local officials at the hearing gave good grades to the EPA, and particularly to the Agency’s regional offices, in its efforts to give proper consideration to state concerns, it is also apparent that the balance of power favors the EPA.  Some of the perceived inequities, such as the 5-year NAAQS reviews, are elements of the CAA that the Agency has no authority to change.  But other aspects of the relationship are dominated by EPA’s independent decision- and policy-making authorities, particularly changes to standards, which states and the industries they represent often view as technically impractical or economically harmful.  

State air departments are tasked with carrying out most EPA air regulations and are the principal regulatory authority industry compliance managers work with.  Thus their views on the effectiveness and workability of federal rules are highly relevant to both federal and industry interests.  Following are the views several hearing witnesses expressed on the CAA in general and specific issues of importance to their states.

Achievements

Without exception, the witnesses praised the air quality benefits brought about by implementation of the CAA.

“By any objective measurement, the Act has been a success in accomplishing its purpose to protect and enhance the nation’s air resources. The air is cleaner and public health has improved.  Nationally, since 1990, SO2 emissions have decreased by 65 percent, nitrogen oxides (NOx) by 48 percent, and volatile organic compounds by 52 percent.  Title V permits enabled the establishment of comprehensive and consistent monitoring, recordkeeping, and reporting requirements.”  Michael Krancer, Secretary, Pennsylvania Department of Environmental Protection (PDEP)

               “The [SIP] process has produced essential carbon monoxide (CO), ozone, and particulate matter (PM-10) reductions at over a dozen Colorado non-attainment areas, resulting in widespread compliance with the NAAQS.  Moreover, federal technology standards, including new car standards, fuel standards, and new source performance standards for industrial facilities, have pushed the envelope of technological progress, resulting in noteworthy air pollution reductions nationwide.”  Martha Rudolph, Director, Environmental Programs, Colorado Department of Public Health and Environment (CDPHE)

“The drafters of the CAA had a tremendous vision of what the nation’s air quality could become and put in place some very important programs that not only addressed the issues that were present at the time but also provided mechanisms for dealing with future challenges.  The State of Montana finds that the New Source Review permitting program, even though it is incredibly complex and very controversial, is one example of the CAA that continues to remain useful in ensuring that large facilities operate in a manner that is protective of human health and the environment.”  David L. Klemp, Air Director, Montana Department of Environmental Quality

“Air toxics emissions declined by about 42 percent from 1990 to 2005.”  Rob J. Martineau, Jr., Commissioner, Tennessee Department of Environment and Conservation (TDEC)

NAAQS reviews

Among the drawbacks of the CAA, the requirements that the EPA review the NAAQS every 5 years and that states respond to revised NAAQS with SIP revisions received considerable attention in the testimony.

“Development of the NAAQS on an interval of 5 years (CAA Section 109(d)(1)) has created significant resource burdens for both EPA and the states.  Furthermore, the cascading standards can create confusion for the public because states and EPA continue to work on SIP revisions, determinations of attainment for one standard, while the Air Quality Index is based on another.”  Krancer, PDEP

“The current regimen leads to a great deal of redundancy, overlap, and confusion.  For instance, currently in the San Joaquin Valley, we have five SIPs in effect for ozone and particulates (including one for the 1-hour ozone standard that was revoked by EPA in 2005), with overlapping strategies that often target the same pollutants.  In early 2013, a new SIP addressing the latest EPA standard for PM-2.5 will be adopted, which will result in six SIPs being in effect at the same time, and increased overlap and complexity.”  Sayed Sadredin, Air Pollution Control Officer, San Joaquin Valley Air Pollution Control District (SJVAPCD)

“The ambitious schedule for evaluating and promulgating NAAQS revisions every 5 years has created an inefficient planning process.  Numerous SIP submittals undergoing delayed EPA review are often superseded or replaced by subsequent SIP revisions, which further add to the SIP processing backlog. The backlog has produced a delay in EPA’s timely consideration of SIPs, which should be evaluated under the applicable guidance and policy that existed when the SIP was submitted.  Unfortunately, the prolonged delay in SIP review can produce a differing interpretation of what EPA deems acceptable, which was not clear when the SIP was originally submitted.”  Rudolph, CDPHE

“The review period for the NAAQS needs to be lengthened from the current 5-year cycle.  A 10-year cycle should be considered.”  Martineau, TDEC

SIP approvals

States that are required to attain the NAAQS standards often develop new and innovative methods for doing so.  But incorporating these changes into SIPs has evolved into a prolonged process, often resulting from EPA’s reluctance to cooperate with SIP changes that states view as appropriate for their regulated community and specific air quality issues. 

               “EPA is subject to deadlines for acting on regulations and plans submitted by state and local air agencies.  However, aside from litigation, there are no remedies for state and local agencies when EPA fails to meet those deadlines.  While we believe that some delays by EPA may be unavoidable, there needs to be an orderly process that provides adequate time for local and state air agencies to respond and redirect when needed.  A delayed EPA SIP action results in a situation where other federal agencies do not have to meet general conformity requirements when undertaking projects, relieving these agencies of their duty to keep emissions in their jurisdictions at a de minimis level.  Delays in the approval process can also create a disincentive for advancing air quality science, such as emissions models and inventories.”  Sadredin, SJVAPCD

“The SIP process does not currently allow for dispute resolution in situations where EPA rejects a state’s proposal for compromise.  Presently, states have the option of either accepting EPA’s regulatory interpretation, or the potential of a Federal Implementation Plan.  The SIP process also does not require that EPA provide implementation guidance in the form of a rule when an NAAQS is promulgated.  Such guidance seems warranted considering the complexity of the SIP development process.  Consequently, one possible solution that may lessen future disputes is to consider a regulatory or policy initiative specifying that EPA provide a detailed implementing regulation (subject to notice and public comment) that must be issued concurrent with any final NAAQS regulation, in order to provide clarity on SIP expectations and implementation consistency amongst EPA Regions.”  Rudolph, CDPHE

New Source Review

The NSR program requires that major new sources of air pollution, which include sources that undergo major modification, install the best available pollution control devices. 

“The NSR program is particularly challenging for states due to the uncertainty that has resulted from years of litigation spurred by EPA’s enforcement initiative [launched in 1999 by the Clinton administration against nine utility companies].  Although the revised prevention of significant deterioration (PSD) rules and the WEPCO test provide certain factors to be considered, not all factors are required, and only EPA knows the weight that should be assigned to each of the factors.  This makes it incredibly difficult for states to run a program and advise the regulated community.  This uncertainty encourages the regulated community to avoid projects that would have produced an equivalent or greater benefit had the law and regulatory requirements been clear.”  Martineau, TDEC

“Because ‘major modifications’ to major stationary sources trigger a requirement for NSR, with the potential for new emissions limits and construction and operational requirements, there is a disincentive to modernize or otherwise improve the efficiency and competitiveness of power plants and industrial facilities.  Because modernization could improve the environmental performance of those plants and facilities, the NSR Program can undermine the goals of the Clean Air Act.  Moreover, because power plant, refinery, and other facility owners have been subjected to EPA (and state) enforcement actions on account of what these owners thought was routine maintenance, repair, or replacement activities, the NSR Program has become a disincentive to some best maintenance practices, with facility operations and reliability suffering as a result.” Krancer, PDEP

The above quotations are only a sampling of both the positive and negative views the state representatives voiced on the CAA, the programs the EPA has developed under the Act, and how the Agency runs those programs. 

Other topics discussed include:

• Cross-state air pollution, as well as pollution crossing the Pacific from Asia to the West Coast
• Regional haze
• The success and eventual termination of early action compacts the EPA negotiated with states
• Federal funding to states under CAA Section 105
• CAA Section 185 severe and extreme nonattainment fees that must be paid by stationary sources
• The 10 percent limit on future control measures to attain the NAAQS
• The benefits and the burdens of Title V permitting
• Concerns about certain specific rules such as the Boiler MACT and the MACT and New Source Performance Standards (NSPS) for cement kilns
• Timing and other integration issues associated with multiple major rules
• Federal air rules that preempt state rules affecting the oil and gas industry

Click here for transcripts of the testimony.

William C. Schillaci
BSchillaci@blr.com