Environment, Energy and Transportation Program
Clean Air Newsletter
A Quarterly Review of Legislation and Air Quality Issues
January 2005
Vol. 9, No. 1
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IN THIS ISSUE
STATE ACTIONS
Virginia to Consider Multi-Pollutant Bill
California Clearing a Path for more Stringent Vehicle Emission Standards
New York High Court Upholds Emergency Rules for Acid Rain
California Farmers Subject to Clean Air Requirements
Hybrids Causing Carpool Lane Congestion
FEDERAL ACTIONS
EPA Announces Final Designations for First Fine Particle Standard
Clear Skies Legislation Reintroduced in Congress
Livestock Operations Poised for Clean Air Waiver
Wilderness Areas Could Benefit from Overhaul of Air Pollution Prevention Rules
MEETINGS
STATE LEGISLATION
STATE ACTIONS
Delegate John Reid has introduced House Bill 2742, the “Clean Smokestack Act," in the 2005 session of the Virginia General Assembly. HB 2742 is a multi-pollutant bill that would require significant reductions in emissions of nitrogen oxides (NOx) and sulfur dioxide (SO2) from coal-fired power plants in the state. Fifteen power plants that generate more than 25 megawatts of electricity would be regulated.
Beginning May 1, 2011, the maximum average NOx emission limit for an electric generating unit would be 0.3 pounds per million BTU. For an electric generating system, the limit would be 0.15 pounds per million BTU. For SO2, the maximum average emission rate would be 0.54 pounds per million BTU for an electric generating unit, and no more than 0.13 pounds per million BTU for an electric generating system. These emission rates translate into reductions of 71 percent for NOx and 86 percent for SO2 over six years.
Although it would not regulate mercury or carbon dioxide (CO2) emissions from power plants, the bill would require the Department of Environmental Quality to develop a strategy to reduce mercury emissions and submit it to the governor, the legislature and the state air pollution control board by July 1, 2006. For CO2, the department would be charged with submitting its findings and recommendations on emission reduction options to the legislature no later than July 1, 2008.
HB 2742 is similar to legislation that Delegate Reid introduced last year—HB 1472—that has remained in a House committee. The earlier bill was modeled after North Carolina’s Clean Smokestack Act, which became law in 2002 (see the September 2002 issue of NCSL’s Clean Air Newsletter). Environmental and health groups, including the American Lung Association of Virginia, support HB 2742. The Virginia Chamber of Commerce and Virginia Dominion Power oppose the legislation.
In 2003, the California Air Resources Board (CARB) introduced the latest version of the state’s low-emission vehicle program, LEV II. Since that time, seven states—Connecticut, Maine, Massachusetts, New Jersey, New York, Rhode Island and Vermont—have adopted the California standard. Rhode Island—the most recent of the states to join the ranks—filed regulations on December 21, 2004, for new vehicles sold in the state beginning with the 2008 model year. The state expects the new regulations will cut hydrocarbon emissions by 16 percent, air toxic emissions by 25 percent, and greenhouse gas emissions by 2 percent by 2020.
States have two options in adopting new vehicle emission standards: 1) they can adopt standards issued by the U.S. Environmental Protection Agency (EPA); or 2) they can adopt California's more stringent standards if they do not meet the federal standards. Thirty-three states and the District of Columbia are eligible or soon will be eligible to adopt California’s LEV II program. Legislation is being drafted this session in both Maryland and Washington to adopt the California LEV II standard.
States and the California LEV II Program
 Eligible to adopt California standard
 Adopt California standard
 Not eligible to adopt California standard
Source: NCSL, January 24, 2005.
The LEV II program is not California’s only contribution to stricter vehicle emissions standards, however. In September 2004, the CARB adopted regulations aimed to significantly reduce the emissions of carbon dioxide, methane, nitrous oxide and hydrofluorocarbons–gases that are linked to global warming– during the next 11 years. These regulations are the result of Assembly Bill 1493, passed in 2002 (see the October 2004 issue of NCSL's Clean Air Newsletter.)
The California greenhouse gas emission regulations will not be final until January 2006, pending review by the state Office of Administrative Law and the Legislature; California also must obtain a waiver from EPA (a necessary condition to proceed). The automobile industry has challenged the proposed regulations in U.S. District Court for the Eastern District of California (Central Valley Chrysler-Jeep, Inc/, et al. vs. Catherine E. Witherspoon, et al.), arguing in part that they amount to setting a fuel efficiency standard that is reserved to Congress by the Clean Air Act.
EPA has determined that carbon dioxide is not an “emission” regulated under the Clean Air Act. Ten states, including California, are challenging the agency’s finding in court. According to staff in an association representing some of the states that have followed California's lead, a decision may swing on whether the court decides that the statutory provisions in the Clean Air Act prevail over a federal agency's action, thereby allowing other states to adopt California’s greenhouse gas emission regulations the same as they can adopt the state’s LEV and LEV II regulations.
On October 19, 2004, Justice Bernard Malone of the New York Supreme Court upheld emergency acid rain rules adopted by the New York Department of Environmental Conservation (DEC), rejecting an appeal by the electric power industry. The court based its rationale on evidence of damage to the environment caused by sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions. The emergency rules were promulgated on August 17 to ensure that emission reductions outlined in the state’s Acid Deposition Reduction Program (ADRP) were implemented without delay.
ADRP requires certain electrical generators in the state to reduce SO2 and NOx emissions to protect sensitive areas from acid rain. Acid rain forms in clouds when SO2 and NOx chemically react with water, oxygen and oxidants, causing lower pH levels in lakes, ponds and streams; it also can affect air quality and soil. Many of the Northeast’s water bodies are acutely sensitive to its effects due to the inability of surrounding soils to neutralize, or buffer, the effects of acid rain. The 6 million acre Adirondack Park in upstate New York is one of the areas in the country most severely affected by acid rain; roughly 26 percent of Adirondack lakes surveyed have wholly lost their ability to neutralize acid, and 70 percent of sensitive lakes are at risk of episodic acidification.
Under the Phase II requirements of the federal acid rain program, electric generating sources were required to reduce SO2 emissions by 50 percent and NOx emissions by 35 percent. DEC's emergency rules require generators to cut SO2 emissions an additional 50 percent and NOx emissions an additional 40 percent below the Phase II levels. These reductions are to be phased in between January 1, 2005 and January 1, 2008. DEC estimates that the emergency rules will prevent the emissions of 35,000 tons of SO2 and 6,000 tons of NOx during the first year of implementation.
Farmers in California’s Central Valley are at the forefront of the fight to cleanup particulate matter pollution. The San Joaquin Valley Air Pollution Control District required farmers with more than 100 contiguous acres and dairies with more than 500 cows to submit plans by the end of December 2004 that illustrate the steps they are taking to reduce the microscopic particles of dust, chemicals or other substances that come from their land. More than 6,400 farms and dairies in the 270-mile valley stretching between Los Angeles and San Francisco are affected.
More than two-thirds of the farms that fall under the new rule had already submitted their two-year plans by early December. In their plans, farmers can choose from any number of dust-fighting options, including watering unpaved roads, switching to organic farming and working at night when the winds are lighter. Farms are responsible for more than 50 percent of the particulate matter in the region.
The current proposal will reduce particulate pollution by 23 percent—or 34 tons per day—by 2010. The region has missed several federal pollution reduction deadlines in the past, and the area's residents have one of the highest asthma rates in the nation.
As hybrid vehicles become more popular, Virginia’s carpool lanes are increasingly congested. Virginia is one of a handful of states to allow hybrid vehicles access to high occupancy vehicle (HOV) carpool lanes as an incentive to purchase these low-emission and fuel-efficient vehicles. The result of a detailed study of carpool lanes on Interstate 95 illustrated close to triple the number of hybrids in carpool lanes from spring to October of last year.
The Electric Drive Transportation Association identifies the Washington, D.C., area as the country’s second leading market for hybrids, second only to California. Virginia’s hybrid exemption is due to expire in June 2006. The state’s HOV task force—comprised of transportation officials and experts—urged in a report that state legislators not extend it.
Virginia has a 10-year history of allowing low-emission vehicles access to HOV lanes to lessen the region’s air pollution. Not until hybrid vehicles gained access in 2000 did a noticeable number of drivers take advantage of the exemption. The increase in hybrid vehicles has contributed to the increase to 1,900 cars per hour on HOV lanes, well beyond their operating capacity of 1,500 to 1,800 per lane per hour.
The problem has attracted the attention of the Federal Highway Administration (FHA). The FHA expressed its concern about the proliferation of hybrid vehicles in HOV lanes and has asked Virginia to increase enforcement and consider other options to reduce congestion.
FEDERAL ACTIONS
On December 17, 2004, the governors of 20 states were notified by the U.S. Environmental Protection Agency (EPA) that certain areas of their states do not meet the nation’s first fine particulate matter (PM2.5) standard. The majority of the nation’s counties meet the new health-based standards, while all or part of 224 counties nationwide are not in attainment. The states with nonattainment areas by region are:
• Northeast—Connecticut, Delaware, Maryland, New Jersey, New York, Pennsylvania
• Southeast—Alabama, Georgia, Kentucky, North Carolina, Tennessee, Virginia, West Virginia
• Midwest—Illinois, Indiana, Michigan, Missouri, Ohio
• West—California, Montana
Particulate matter consists of a mixture of microscopic solids and liquid droplets suspended in air. Primary emissions are derived from sources that include diesel engines, wood burning activities, and industrial and commercial combustion processes. Secondary particles are formed through the reactions of gases in the atmosphere. An example of this is sulfur dioxide gas from coal combustion in power plants and industrial boilers reacting with other gases in the atmosphere to form sulfate particles. Fine particulate matter is approximately one-thirtieth the size of a human hair, can aggravate heart and lung diseases and contribute to other serious health problems, including heart attacks, chronic bronchitis and asthma attacks.
With the official designation, states not in attainment with the standards are being told that they need to act more aggressively to reduce PM2.5 pollution to protect the health of the population. These 20 states must submit plans to EPA by early 2008 outlining how they intend to meet the PM2.5 standard; attainment is expected as soon as possible and not later than 2010. For those areas with serious fine particle pollution problems, the EPA can grant one five-year extension, pushing the attainment date for those areas back to 2015.
Just days before EPA issued the final nonattainment designations, it announced that the levels of PM2.5 were the lowest in 2003 since nationwide monitoring began in 1999. The agency attributed the improved air quality to EPA's acid rain program and other programs responsible for reducing emissions that contribute to fine particle pollution. According to EPA, since monitoring began in 1999, concentrations of PM2.5 have decreased a total of 10 percent and are close to 30 percent lower than estimates of levels 25 years ago.
For more information about the PM2.5 standard, go to NCSL’s Air Quality Web page at http://www.ncsl.org/print/environ/PMfact.pdf.
The Clear Skies Act of 2005, S. 131, was reintroduced in this session of Congress and referred to the Senate Environment and Natural Resources Committee for consideration. Clear Skies is multi-pollutant legislation that would establish a cap-and-trade program for emissions of three pollutants from electric power plants—sulfur dioxide (SO2), nitrogen oxides (NOx) and mercury. The Bush administration proposal aims to achieve 70 percent reductions in emissions of each pollutant over 2000 levels by 2018, according to the following schedule:
• SO2—from 11.2 million tons to 4.4 million tons in 2010, and to 3 million tons in 2018.
• NOx—from 5.1 million tons to 1.7 million tons (see deadlines for two different trading areas below).
• Mercury—from 48 tons to 34 tons in 2010, and to 15 tons in 2018.
The U.S. Environmental Protection Agency (EPA) would allocate pollution allowances (one allowance equals one ton of emissions) to power plants each year. The allocations would be based on several factors, including allowances under existing programs and an open bidding process with a fee charged for each allowance. At the end of the year, every power plant would need to have enough allowances to cover its emissions. If a power plant had more allowances than emissions, it could sell, trade or bank them for future use. If a power plant had more emissions than allowances, it would have to acquire additional allowances from other sources. The legislation would prohibit any state or local government from restricting or interfering with the transfer, sale or purchase of allowances.
The NOx emissions trading program would be conducted in two geographic zones; an eastern and central zone (zone 1) and a western zone (zone 2). The combined 1.7 million allowances would be allocated as follows: zone 1—1.4 million in 2008, and 1 million in 2018; zone 2—0.7 million in 2008. Nox emission trades could not be made across zone lines. States would retain the authority to adopt emission requirements for all three pollutants that are more stringent than the emission caps contained in the federal legislation.
In an effort to minimize emissions from animal feeding operations (AFO), the U.S. Environmental Protection Agency (EPA) announced an air quality compliance agreement to ensure AFO operations comply with the Clean Air Act and other laws.
Emissions of air pollutants and other hazardous substances from some AFOs may be subject to requirements of the Clean Air Act and other environmental regulations. Although EPA has brought enforcement actions against such operations, still more data may be necessary to accurately determine whether the operations are in violation, the extent of the violation and best practices to control industry-wide emissions.
The purpose of the compliance agreement is to gather the necessary scientific data EPA needs to make informed regulatory and policy determinations and to ensure that AFOs comply with all applicable environmental requirements. Through the agreement, an industry-funded emissions monitoring program will be established to collect this information, helping the industry, EPA and the U.S. Department of Agriculture determine the compliance status of feeding operations.
Those AFO operators that are party to the agreement will be assessed a civil penalty of between $200 and $100,000, based on the size and number of farms in their operation. In addition to the civil penalties, each participating operator will contribute to the two-year emissions monitoring program fund.
The data from the monitoring program will be used to develop a method for EPA to estimate emissions from different types and sizes of feeding operations. Using these methods, AFOs will be required to apply for the necessary air permits, install control mechanisms, implement best practices and come into full compliance.
Those facilities that are the subject of current enforcement actions may be disqualified from joining the study. State and local authority to enforce local odor or nuisance laws is preserved in the agreement.
The U.S. Environmental Protection Agency (EPA) is considering significant changes to the way it sets air pollution limits in its prevention of significant deterioration permit program for national parks and other unspoiled areas.
The traditional "increment" approach currently allows new or modified sources near clean areas to expand so long as their pollution falls under the incremental limit set for a region. This is done without consideration of how the total pollution affects an area’s ecology. The increment is a pollution concentration measurement designed to keep air quality from degrading, but the approach may not be effective in controlling pollution, especially in the West where nitrogen deposition is harming parks, including Rocky Mountain National Park.
The proposed policy, known as a "critical load" approach, would set a fixed cap that defines how much total pollution an area can sustain before negative effects are noted. In essence, an upper limit for each individual area would be set based on deposition measured in the soil and water and would prohibit new pollution from exceeding that load.
The issue is viewed as especially timely due to the degradation of pristine areas and the dozens of pending permit applications for new power plants. In addition to the two proposals noted above, the EPA also is considering a regional cap-and-trade program and a state planning approach.
National Conference of State Legislatures
Fall Forum
Savannah, Georgia
December 7-10, 2004
The National Conference of State Legislatures' Environment and Natural Resources Committee held two sessions on air quality issues at NCSL's Fall Forum in Savannah, Georgia, December 7-10, 2004. On December 9, committee members received a briefing from NCSL staff about recently proposed and enacted state legislation and regulations on multi-pollutant strategies, mercury, new source review, alternative fuel vehicles, MTBE and greenhouse gas emissions. The briefing was followed by a panel discussion of the current standing of the U.S. Environmental Protection Agency's new source review regulations, policy and compliance challenges, and pending or concluded litigation. The panel members were:
• Bill Harnett, director, Office of Air Quality Planning and Standards, Information Transfer and Program Integration Division, U.S. Environmental Protection Agency
• S. William Becker, executive director, STAPPA/ALAPCO
• Quin Shea, executive director, Environment Group, Edison Electric Institute
• John Walke, senior attorney and director, Clean Air Project, Natural Resources Defense Council
Mr. Harnett, Mr. Becker and Mr. Shea made PowerPoint presentations that are available on the committee Web site at http://www.ncsl.org/standcomm/scenvir/fallforumpp1204.htm. The next committee meeting will be at NCSL's Spring Forum in Washington, D.C., April 13-16, 2005.
Note: The April 2005 Clean Air Newsletter will contain summaries of air quality bills under consideration during the 2005 legislative sessions. Visit NCSL’s Air Quality Legislation Database at www.ncsl.org/programs/environ/air/airqualitydb.cfm for the latest action on 2005 legislation.
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