Regional Reports: Region 2

Philip E. Karmel
Bryan Cave LLP
New York, New York
pekarmel@bryancave.com

I. Second Circuit Rejects NYPIRG’s Challenge to New York’s Title V Permit Program, But Remands Challenges to Individual Title V Permits

On Feb. 27, 2003, the U.S. Courts of Appeals for the Second Circuit upheld the U.S. EPA’s determination to fully approve the Title V permit program administered by the New York State Department of Environmental Conservation (NYSDEC); held that EPA’s decision not to issue a Notice of Deficiency with respect to NYSDEC’s program is not subject to judicial review; and remanded to the EPA various objections that petitioner New York Public Interest Research Group (NYPIRG) had raised with respect to three individual NYSDEC-issued Title V permits. See NYPIRG v. Whitman, __ F.3d __, 2003 WL 549960 (2nd Cir. 2003). NYPIRG had alleged the following asserted deficiencies in NYSDEC’s Title V permit program: “(1) no preparation of a statement of basis; (2) no requirement of prompt reports of deviations; (3) permits fail to set forth adequate conditions governing facility operations during startup, shutdown and malfunction (SSM) episodes; (4) omissions of correct particulate emission limit; (5) incorrect annual compliance certification; (6) no opportunity for a public hearing on draft Tile V permits; (7) expiration of pre-existing permit requirements.” Id. at *3 n.2. The Second Circuit held that, regardless of the merits of NYPIRG’s objections, the EPA had not erred in granting NYSDEC’s permit program full approval because NYSDEC had adequately addressed the (different) deficiencies that the EPA had noted in granting the NYSDEC program interim approval pursuant to 42 U.S.C. § 7661a(g). NYPIRG had also alleged, in the alternative, that EPA should have issued a Notice of Deficiency to NYSDEC pursuant to 42 U.S.C. § 7661a(i)(1), on the ground that NYPIRG’s seven objections to NYSDEC’s permit program establish that the program violates the Clean Air Act. The Second Circuit held that this claim was unreviewable because “an agency’s decision not to invoke an enforcement mechanism provided by statute is not typically subject to judicial review.” Id. *13 (citing Heckler v. Chaney, 470 U.S. 821, 832 (1985)). Finally, NYPIRG had also challenged EPA’s decision not to object to each of three individual NYSDEC-issued Title V permits pursuant to 42 U.S.C. § 7661d(b)(2), on one or more of the seven grounds set forth above. As to these challenges, the Second Circuit held that EPA lacked discretion not to object to a deficient Title V permit and remanded NYPIRG’s contentions to EPA for further consideration.

II. New York Asks EPA for Reformulated Gasoline Waiver

On Jan. 6, 2003, NYSDEC asked the U.S. EPA to waive Clean Air Act rules requiring the New York City metropolitan area to sell reformulated gasoline (RFG) containing a minimum of 2 pecent oxygen by weight. Federal regulations presently require such oxygenated gasoline in the area to reduce the emission of ozone precursors.

NYSDEC’s waiver request was submitted under Section 211(k)(2)(B) of the Clean Air Act, which allows EPA to waive the oxygenated gasoline requirement “upon a determination . . . that compliance with such requirement would prevent or interfere with the attainment by the area of a national primary ambient air quality standard.” The principal oxygenate used in gasoline presently sold in the New York City area is methyl tertiary-butyl ether (MTBE), which has been demonstrated to significantly reduce tailpipe emissions of smog-forming pollutants such as volatile organic compounds and nitrogen oxides. How, then, did NYSDEC justify its request that EPA waive the oxygenate requirement for the area, which remains classified as in severe nonattainment with the ozone standard?

NYSDEC grounded its waiver request in a New York State groundwater protection law, signed by Governor Pataki on May 24, 2000, that bans the use, sale or importation of fuels containing MTBE into the state beginning Jan. 1, 2004. And, NYSDEC argued, once MTBE is removed from the state’s gasoline pursuant to this law, the only other viable oxygenate alternative will be ethanol. NYSDEC’s letter justified the waiver request on the ground that most ethanol-blended gasoline has a high vapor pressure, causing the gasoline to evaporate and thereby contribute to ozone formation. NYSDEC’s argument required further elaboration, however, because its letter acknowledged that ethanol-blended RFG can be formulated to meet stringent vapor pressure limits. To meet this objection to its waiver request, NYSDEC asserted that when “a small amount of [low vapor pressure ethanol-blended RFG] is mixed with gasoline without a similar low [vapor pressure] formulation, the overall volatility of the blend will increase which will result in an increase in VOC emissions.”

III. NYSDEC Comparative Risk Project Targets Air Emissions

In Nov. 2002, the NYSDEC Comparative Risk Project published its final report, titled “Recommendations For Reducing Environmental Risks Through Pollution Prevention.” Virtually all of the report’s chemical/substance-specific pollution prevention strategy recommendations target air emissions.

The report’s highest ranking pollution prevention strategy is that action be taken to reduce “backyard burning” of residential waste, which remains legal in many New York counties. Instead of recommending that the practice be banned by statute or regulation, however, the report suggests that NYSDEC and the New York State Department of Health initiate a program to educate the public as to its hazards.

The report’s second recommendation is to reduce energy production emissions through energy conservation and alternative energy. The report does not make any specific recommendations to achieve these goals, however, but suggests that a working group be formed “to help establish final strategies.”

The report’s third recommendation is to reduce vehicular emissions by promoting programs that reduce driving and by promoting “the use of non-fossil fuels (e.g., methane, methanol, ethanol).” No explanation is given as to how the use of “non-fossil fuels” in mobile sources would reduce air pollution. Nor does the report make any specific recommendations as to how to reduce driving, but again suggests that a working group be formed to establish final strategies.

The report also recommends educational efforts aimed at reducing mercury-containing products and the use of volatile solvents that contribute to ozone formation.