U.S. EPA Air Program Update

1. U.S. EPA Air Program Update Marcia L. Spink Associate Director for Air Programs Environmental Protection Agency Region 3 July 23, 2009

2. Basis of Remand of PM2.5 NAAQS • PM2.5 Annual Primary Standard • EPA failed to adequately explain: • why retaining level of 15 µg/m3 is sufficient to protect public health with an adequate margin of safety from short-term exposures and from long-term morbidity affecting vulnerable subpopulations, • why 24-hour PM2.5 standard alone provided protection with an adequate margin of safety from short-term exposures, and • why results of California’s Children’s Study did not call for more protection. • Not consistent with CASAC recommendation (13–14 µg/m3) or staff views

3. Basis of Remand of PM2.5 NAAQS (cont’d) • PM2.5 Secondary Standards • EPA failed: • to adequately explain why setting secondary PM2.5 standards equal to primary standards provided required protection from visibility impairment, • to identify a target level of visibility impairment that would be requisite, and • to address regional differences in humidity-related effects on visibility. • Inadequacy of reliance on comparison of numbers of nonattainment counties between revised primary standards and one alternative sub-daily standard • Not consistent with CASAC or staff recommendations for a new sub-daily standard

4. Status of Current PM NAAQS Review • Half-way through current 5-year review, which began in 2007 following final rule in October 2006 • Public workshops held in July 2007 • Integrated Review Plan issued in March 2008 • CASAC to review two documents at public meeting on April 1-2, 2009 • First draft Integrated Science Assessment (ISA) released by ORD/RTP in December 2008 • Plans for Risk/Exposure Assessments (REAs), including a health assessment and a visibility impact assessment, released by OAQPS in February 2009 • Key milestones to complete review: • Final ISA: December 2009 • Final REAs: July 2010 • Policy assessment document: August 2010 • Proposed rule: January 2011 • Final rule: October 2011

5. 2008 Ozone NAAQS • Ozone primary standard: final decision in March 2008 to lower standard level from 0.084 to 0.075 ppm • Level above CASAC recommended range of 0.060 to 0.070 ppm; Administrator found key evidence to be too limited and placed more weight on uncertainties in risk assessment • Well above 0.060 ppm or other levels recommended by many States, and public health and environmental groups • Industry commenters argued to retain the 0.084ppm standard

6. 2008 Ozone NAAQS (cont’d) • Ozone secondary standard: final decision to set secondary identical to revised primary standard, and not set a new seasonal standard • The week before final rule signed, OMB sent memorandum challenging Administrator’s decision to set a new seasonal standard • In response, EPA laid out scientific support for setting new seasonal standard • Administrator reversed his decision the day before rule was to be signed, in conjunction with an OMB memorandum presenting the President’s views which “concluded that, consistent with Administration policy, added protection should be afforded . . . [by] setting it identical to the new primary standard” • Questions of Presidential interference and the scientific basis for final decision were broadly raised by CASAC and others and were the subject of Congressional hearing

7. 2008 Ozone NAAQS: Status of Current Review • New review just getting underway • Public workshop held in October 2008 • Draft Integrated Review Plan that frames science - policy issues and process/schedule for review was targeted for release in February for CASAC consultation and public comment • Held back in light of consideration of change to NAAQS process and potential reconsideration of 2008 decisions

8. 2008 Ozone NAAQS: Status of Current Review (cont’d) • Key milestones to complete review: • First draft Integrated Science Assessment (ISA) to be released for CASAC and public review: March 2010 • Plans for health and environmental Risk/Exposure Assessments (REAs) to be released for CASAC consultation: April 2010 • Final ISA: April 2011 • Final REAs: September 2011 • Policy assessment document: December 2011 • Proposed rule: June 2012 • Final rule: March 2013

9. 2008 Ozone NAAQS Implementation • Designations • Governors recommendations – March 2009 • EPA Response – Fall 2009 • Final Designations - March 2010 • Ozone Implementation Rule needed by March 2010 for classifications of areas • Subpart 2 cut points • Subpart 1? • RACT Guidance • Modeling Guidance • MOVES

10. Interstate Transport Rule, Ozone SIPs and Timing • OTC Recommendations • Need reductions in NOx in 2013, 2014 and 2015 to attain by 2016 • Use current year baseline • Use performance standards as well as other forms of reduction like State budgets • Look at contributions from all types of sources and source categories • Significant contribution and remedy • Rule Schedule • Proposal March 2010 • Final March 2011

11. CAIR, Regional Haze SIPs and PM2.5 Attainment Demonstrations • SO2 emissions and allowance bank • What can be relied on with certainty for BART? • What can be relied on with certainty for “reasonable progress”? • What can be relied on in a PM2.5 attainment demonstration?

12. Status of 110(A)(2) Infrastructure SIP Submittals • There are 12 elements required for infrastructure SIPs • Findings were effective on March 24, 2008 for 1997 8-hour ozone and November 21, 2008 for 1997 PM2.5. • EPA HQ is working with the Regional Offices and Counsel to ensure consistency in reviewing and acting on Infrastructure SIPs • Three 110(A)(2) SIPs are due shortly • 2006 24-hr PM2.5 NAAQS: September 21,2009 • 2008.075 Ozone NAAQS: March 2011 • 2008 Lead NAAQS: November 2011

13. NAAQS Reviews • Primary NO2 Standard • Primary S02 Standard • Secondary NO2/SO2 Standard

14. Status of NSR Rulemaking Actions Active Rulemakings: Tribal NSR Rule – Proposed 8/21/06 (71 FR 48696). New AA Gina McCarthy is being briefed. Potential for additional Option Selection to be added to proposal. Final Action projected for March 2010. PM2.5 Increments, Significant Impact Levels and Significant Monitoring Concentrations Rule – Proposed 9/21/07 (72 FR 54112). Final action is tentatively projected by mid 2010. Flexible Air Permitting Rule – Final rule was signed 1/13/2009. New Administration directed that its publication be placed on hold pending review. Briefing for new AA has been scheduled. Final rule publication now projected for the Fall of 2009. Implementing the 8-Hour Ozone NAAQS: NSR Anti-backsliding Rule –This rule would provide an NSR component to the 2007 8-Hour Ozone NAAQS Implementation Rule proposed on 1/16/2009 (74 FR 2936). A projected schedule will be developed after AA Gina McCarthy is briefed.

15. Status of NSR Rulemaking Actions (cont’d) NSR Rules - Reconsideration Corn Milling/Ethanol Rule – Promulgated 5/1/07 (72 FR 24060). NRDC petitioned for reconsideration and requested a stay pending reconsideration. On 3/27/08, EPA responded denying the petition and stay. NRDC filed suit. Current schedule calls for briefs 8/26/09 (Petitioners) and 10/26/09 (EPA). NRDC filed another petition and request for stay on 3/2/09. EPA has yet to make a decision on the more recent petition. Fugitive Emissions Reconsideration Rule – Final rule published 12/19/07 (72 FR 77882). NRDC petitioned for reconsideration and requested a stay pending reconsideration. In 4/24/09 letter from Administrator, EPA granted reconsideration. EPA is administratively staying the rule for 3months pending the outcome of the reconsideration. Publication of notice of stay and reconsideration in the Federal Register expected July 2009.

16. Status of NSR Rulemaking Actions (cont’d) NSR Rules – Reconsideration (cont’d) Implementation of NSR Program for PM2.5 Rule – Final rule published 5/16/08 (73 FR 28321). (In a separate action, EPA is currently soliciting comment on shortening the transition period1 during which emission limits established in NSR permits are not required to account for condensable emissions.) In letter dated 4/24/09 from Administrator to EarthJustice, EPA granted reconsideration of the second petition submitted on behalf of the Sierra Club and NRDC. One element being reconsidered is the “grandfathering” of permit applications deemed complete before the final rule’s effective date. EPA has administratively stayed only this “grandfathering” portion of the rule for 3 months pending reconsideration. Notice of stay and reconsideration was published 6/1/09 (74 FR 26098). EPA expects to propose to extend the stay to solicit comments on its length, with a final decision by 9/1/09. 1 Regarding condensable PM, as noted in final rule at page 28334, EPA established 1/1/2011 as the latest possible end date for the NSR transition period. A related “test methods” proposed rule addresses measurement of condensable PM and solicits comment on ending the NSR transition period earlier (60-90 days after its promulgation). See page 12976 of the test methods proposed rule, published 3/25/09 (74 12970) – the comment period closed 5/26/09.

17. Status of NSR Rulemaking Actions (cont’d) NSR Rules – Reconsideration (cont’d) NSR Reasonable Possibility Rule – The final rule was published 12/21/07 (72 FR 72607) clarifies the “reasonable possibility” standard of the December 2002 NSR reform rules. By a 4/24/09 letter from the Administrator, EPA granted reconsideration of the 2/15/08 petition submitted on behalf of the State of NJ (and reiterated in petitioner’s letter of 3/11/09). EPA did not stay the rule. Notice of reconsideration will be published in the Federal Register. Administrator’s Interpretive Memo on CO2 in PSD Permitting – Administrator issued interpretive memo on 12/18/08. Notice of issuance of this memo was published 12/31/08 (73 FR 80300). Sierra club, NRDC et al. petitioned to overturn the finding. By 2/17/09 letter, EPA granted the petition for reconsideration (under authority of the APA) but declined to stay the effectiveness of the memo. Notice of reconsideration will be published in the Federal Register. Court order of 2/29/09 granted EPA’s motion to hold litigation in abeyance.

18. Status of NSR Rulemaking Actions (cont’d) NSR Rules – Reconsideration (cont’d) NSR Aggregation Rule – Final rule interpreting EPA’s aggregation policy was published 1/15/09 (74 FR 2376). EPA took no action on proposal for project netting and published a notice (74 FR 2460) to withdraw proposed provisions for debottlenecking. EPA received petition from NRDC on 1/30/09. Notice granting reconsideration was published 2/13/09 (74 FR 7193). A notice published 5/14/09 (74 FR 22693) delays the effective date for one year (until 5/1/2010) to allow time for reconsideration. As part of the reconsideration proceedings, one option will be to withdraw the 1/15/09 final rule. Approval of the NSR Reform Provisions into Wisconsin’s SIP2 – Notice of final approval of Wisconsin’s NSR/PSD rules was published 12/17/08 (73 FR 76560). NRDC and Sierra Club jointly petitioned for reconsideration of the final rule and requested that it be stayed or withdrawn. New AA will be briefed for consultation with Acting RA of Region 5. 2 This is an EPA Region 5 Action.

19. EPA Sets Public Hearing Dates on Air Quality Standards for Nitrogen Dioxide EPA will hold two public hearings in on the agency’s proposal to strengthen the nation’s nitrogen dioxide standards to protect public health. The hearings will be August 3 in Arlington, VA and August 6 in Los Angeles. Both hearings will begin at 9 a.m. and end at 9 p.m. local time. August 3: Arlington, Va. EPA Potomac Yard South Conference Center, 2777 S. Crystal Drive Arlington, VA 22202 Note: Anyone attending the Arlington hearing will need to bring photo identification: August 6: Los Angeles Sheraton Los Angeles Downtown, 711 South Hope Street Los Angeles, CA 90017 Members of the public who want to speak at the hearings may pre-register for a specific speaking time by contacting Tricia Crabtree at crabtree.tricia@epa.gov or (919) 541-5688. People also may register in person on the day of the hearing; however, they may not be given a specific time to speak. EPA also will accept written comments on the proposed rule until Sept. 14, 2009. More information on proposed rule and instructions for submitting written comments: http://www.epa.gov/air/nitrogenoxides/pdfs/20090626fs.pdf