Section of Environment, Energy, and Resources

Air Quality Committee

2009-2010 Committee Chair:

Angela Morrison Uhland, Hopping Green & Sams PA, Tallahassee, FL

Message from the Chair

We trust that you will enjoy this new issue of the Air Quality Committee newsletter, and we look forward to continuing publication on a quarterly cycle for the remainder of the year. On behalf of the leadership of the Air Quality Committee, I would like to welcome Phil Karmel with Bryan Cave LLP as the new editor in chief of the Air Quality Committee Newsletter. Our newsletter has been in a bit of a hiatus over the last few months, and we would like to thank our prior editor, Kathryn Thomson, for her years of dedicated service. Kathryn will remain on our leadership team, transitioning to a position as a vice chair of Programs.

Please make plans to join other air lawyers attending the Section of Environment, Energy, and Resource’s 17th Section Fall Meeting to be held in Baltimore at the Baltimore Marriott Waterfront from Sept. 23–26, 2009. You won’t want to miss the conference or the air quality panel discussion of EPA’s key goals, agenda, and initiatives for Clean Air Act issues nine months into the new administration. Topics to be covered include new source review, new source performance standards, energy issues, the Clean Air Interstate Rule, hazardous air pollutants, enforcement, and other timely issues. We are expecting good representation from EPA, and we hope you can join us as well. Members of the Air Quality Committee will enjoy a roundtable discussion together, and there will be other networking opportunities at the meeting.

We hope that you have been taking advantage of the quick teleconferences that have been offered by the Air Quality Committee, including our most recent ones on EPA’s Proposed Greenhouse Gas Reporting Rule, EPA’s Proposed Endangerment Determination, and EPA’s Clean Air Interstate Rule/Clean Air Mercury Rule. We are planning similar teleconferences in the near future, including one on implementation of the ozone and particulate matter ambient air quality standards, focusing on permitting and control requirements for new nonattainment areas. Look for information on this and other teleconferences through e-mail notices.

The Section has also made available to us a new Discussion Board. This will allow us to communicate and collaborate with each other on a topic of interest. With almost 600 members in our committee, this Discussion Board should serve as a wonderful tool for discussions on air issues. This service will be in addition to the list serve, which we will continue to use for notices of latebreaking information and other committee communications. Our committee’s Web page is also a good resource for air quality information. The Air Quality Committee continues to have a strong leadership team who help bring value to your membership in our committee. Our current team is listed in the Leadership module on the right hand side.

Angela Morrison Uhland
Chair

Hot News!

EPA issues Proposed Endangerment Finding for Greenhouse Gases under the Clean Air Act
On April 17, 2009, the EPA formally proposed to make a finding that carbon dioxide and five other heat-trapping gases emitted by motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. Once published in the Federal Register, the proposed endangerment finding will trigger a 60-day public comment period before EPA can issue a final finding. A pdf of the proposal is attached. More information is available at the following link: http://epa.gov/climatechange/endangerment.html#warming

EPA GHG endangerment proposal pe-pub.pdf

EPA Proposes First National Reporting on Greenhouse Gas Emissions
On March 10, 2009, EPA proposed a comprehensive national system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States. The new reporting rule would apply to suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, and large direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year. Approximately 13,000 facilities, accounting for about 85 percent to 90 percent of greenhouse gases emitted in the United States, would be covered under the proposal. The rule was published in the Federal Register on April 10, 2009, and the comment period expires on June 9, 2009. Pdfs of the proposed rule and preamble to the proposed rule are attached. More information on the proposed rule is available at the following link: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html

GHG Reporting Proposed Rule.pdf | GHG Reporting Proposed Rule - Preamble.pdf

Clean Air Interstate Rule Reinstated
On December 23, 2008, the DC Circuit reinstated the CAIR Rule and remanded the rule back to EPA for further rulemaking to address the defects identified in the court's July 11, 2008 decision.

EPA Final Rule on New Source Review Aggregation
O n January 12, 2009, EPA issued a final rule addressing aggregation for purposes of the federal New Source Review (NSR) program. Aggregation groups together multiple, related physical or operational changes into a single project for evaluating requirements under the NSR program.

EPA Memorandum on the Deseret Decision
On December 18, 2008, EPA issued an interpretative memo describing what air pollutants are subject to the federal Prevention of Significant Deterioration (PSD) program as "regulated NSR pollutants." In the memorandum, EPA Administrator Johnson interprets the phrase "regulated NSR pollutants" to exclude pollutants for which EPA regulations only require monitoring or reporting and not actual control of emissions.

EAB's Deseret Power decision
In a November 13, 2008 decision in In the Matter of Deseret Power Electric Cooperative, EAB App. No. PSD 07-03, the EPA Environmental Appeals Board (EAB) remanded a Prevention of Significant Deterioration (PSD) permit for the Deseret project back to EPA Region VIII for a determination of whether Best Available Control Technology (BACT) is required to limit the proposed coal-fired power plant's CO2 emissions. The EAB held that held that agency has the discretion to determine which pollutants are "subject to regulation" under the Clean Air Act, and the PSD permit was remanded to the region to develop a record for its decision.

About the Committee

The Air Quality Committee provides a valuable forum and practical resources for lawyers interested in air-related issues. Committee members range from experienced practitioners to those who deal with air quality issues on only an occasional basis. The Committee provides information to its members through the programs it presents and its contributions to the various ABA publications. The Air Quality Committee assists its members with:

keeping up to date on new developments, through extensive communications such as newsletters, satellite conferences and seminars;
exchanging ideas and Best Practices with other practitioners around the country; and
maintaining involvement with the environmental lawyer community by contributing to various ABA SEER publications and participating in SEER events.

We have one of the largest sections in the Year in Review, which covers new laws, regulations and recent cases affecting air quality, and we publish a quarterly newsletter with articles and items of interest. While most of our work is done by our excellent and hardworking Vice-Chairs, we are always looking for members interested in getting involved in committee activities.