air quality letter - fourth quarter 2012.pdf - bingham greenebaum

Fourth Quarter 2012

I N S I D E T H I S I S S U E

EPA Issues Memorandum Regarding Policy on

Single Source Determinations Following U.S. Court

of Appeals Summit Decision, p. 1

New Indiana Environmental Rules Board

Established January 1, 2013, p. 4

EPA Revises NAAQS for Fine Particulate Matter, p.

5

U.S. Court of Appeals for the D.C. Circuit Remands

EPA’s Implementation Rule for its PM2.5 NAAQS

and Separately Vacates PM2.5 Significant Impact

Levels and Significant Monitoring Concentrations,

p. 6

EPA Issues Final Rule Designating Kentucky

Portion of Ashland-Huntington Area as Attainment

for 1997 PM2.5 NAAQS, p. 7

EPA Denies Indiana’s Request for Reconsideration

of Nonattainment Designation for Lake and Porter

Counties, p. 7

EPA Finalizes Latest Iteration of Boiler Rules, p. 8

EPA Issues Final Rule for NESHAP for the Nine

Chemical Manufacturing Area Source Categories in

Response to Petition for Reconsideration, p. 9

EPA Policy on SIP Actions and Redesignation

Requests in the Wake of Court Decision Vacating

CSAPR and Potential Impact of Subsequent Denial

of EPA’s Petition for Rehearing, p. 10

EPA Issues Proposed Rule Announcing

Reconsideration of Mercury Air Toxics Standards

and Utility NSPS, p. 12

EPA Amends Widely Applicable Air Emission and

Performance Standards Applicable to Stationary

Internal Combustion Engines, p. 12

EPA Reports 2012 Enforcement Data and

Announces Several Key Air Enforcement Priorities

for 2013, p. 13

KDAQ Releases 2012 Annual Report, p.13

P E R M I T T I N G

EPA Issues Memorandum Regarding Policy on Single Source Determinations Following U.S. Court of Appeals Summit Decision

By Kelly D. Bartley, Attorney, Bingham

Greenebaum Doll LLP

As reported in the third quarter issue of the Air

Quality Letter, on August 7, 2012 the U.S. Sixth Circuit

Court of Appeals concluded in Summit Petroleum Corp.

v. EPA that the term “adjacent,” for purposes of

determining whether a group of air emissions sources

constitute a single stationary source under Clean Air Act

Title V program requirements, relates only to physical

proximity. Accordingly, the court determined that an

EPA determination considering the functional

interrelatedness of sources to determine adjacency was

improper. EPA sought rehearing of the court’s decision,

but by order issued October 29, 2012, that request was

denied.

On December 21, 2012, EPA issued a memorandum

to all EPA Regional Air Division Directors advising that

it does not intend to change its long-standing practice of

considering interrelatedness in EPA single source

determinations in jurisdictions outside the Sixth Circuit.

EPA advised that outside the Sixth Circuit, the agency

will continue to make single source determinations on a

Air Quality Letter – Fourth Quarter 2012

THIS IS AN ADVERTISEMENT 2

case by case basis and, with regard to determinations of

adjacency, will consider both proximity and functional

interrelatedness of the sources at issue. EPA advised

that only in areas under the jurisdiction of the Sixth

Circuit, i.e., Michigan, Ohio, Tennessee and Kentucky,

will EPA no longer consider functional interrelatedness

in determining adjacency. The memorandum advises

that EPA is still assessing how to implement the Summit

decision in permitting actions in the Sixth Circuit.

As reported in the third quarter 2012 issue of the Air

Quality Letter, the other two factors relevant to

determining whether a group of buildings, structures or

facilities may be considered a single stationary source,

and thus their emissions aggregated for purposes of

determining whether emission levels trigger Title V

permitting requirements, are whether the sources are

under common control and whether the sources belong

to the same major industrial grouping. See 40 CFR 70.2.

If pollutant emitting activities fail to satisfy any one of

the three criteria they are considered separate stationary

sources and their emissions cannot be aggregated to

meet the Title V major source threshold.

KDAQ Permitting Status


Greenebaum Doll LLP

At the close of Fiscal Year 2012, the Kentucky

Division for Air Quality (KDAQ) reported that it had

201 applications pending for review. Of those, 23

applications were reported as being beyond regulatory

time frames.

IDEM Permitting Status

By Jennifer Kahney Thompson, Attorney, Bingham

Greenebaum Doll LLP

The Indiana Department of Environmental

Management (IDEM) reports that it issued the following

permit decisions from October 8, 2012 to January 6,

2013: 112 Title V Permits; 59 Federally Enforceable

State Operating Permits; 43 Minor Source Operating

Permits; 11 Source Specific Operating Agreements; and

26 Registrations.

IDEM also had the following permit applications

submitted during this same time frame: 96 Title V

Permit Applications; 51 Federally Enforceable

Operating Permit Applications; 46 Minor Source

Operating Permit Applications; 25 Source Specific

Operating Permit Applications; 21 Registration

Applications; and 28 applications not yet classified.

IDEM’s Permitting Branch is currently operating

with 43 permit writers, six section chiefs, 11

administrative personnel, two environmental specialists,

and one branch chief.

LMAPCD Permitting Status

By Bradley E. Dillon, Attorney, Bingham

Greenebaum Doll LLP

The Louisville Metro Air Pollution Control District

(LMAPCD) continues to have a significant backlog of

permit applications. According to Lauren Anderson,

Director of the LMAPCD, a recent EPA audit of the

LMAPCD’s Title V program recommended that the

agency focus on reissuing expired Title V permits.

Companies with expired permits should expect activity

on these permit applications in the near future. Of the 35

Title V sources in Jefferson County, 11 facilities are

currently operating under timely renewal applications.

As discussed below, the LMAPCD is proposing some

significant changes to its permitting programs in 2013.

STATE RE G U L A T I O N S

Status of Pending Changes to KDAQ Regulations


Greenebaum Doll LLP

Amendments to KDAQ New Source Review

regulations 401 KAR 51:001, 51:017 and 51:052 became

effective as a matter of state law on December 7, 2012.

The amendments revise the requirements necessary to

determine whether a construction project’s emissions

will cause or contribute to a violation of the PM2.5

NAAQS to reflect current federal new source program

regulations. Further details regarding the amendments

can be found in the second and third quarter issues of the

Air Quality Letter. No other changes to KDAQ

regulations are pending at this time.

Bingham Greenebaum Doll LLP


Status of Pending Changes to LMAPCD Regulations

By Bradley E. Dillon, Attorney, Bingham

Greenebaum Doll LLP

In December 2012, the LMAPCD proposed for

informal comment a series of regulations that would

significantly revise the permitting process. Most

significantly, LMAPCD would completely rewrite

Regulation 2.02 Air Pollution Regulation Requirements

and Exemptions, clarifying what sources are exempt

from permitting, creating an exemption for sources

emitting less than five tons per year, and a new

“registration” process for sources meeting certain

criteria. These changes would align the LMAPCD

regulations much more with KDAQ’s regulations for the

first time.

The regulations being considered would also

significantly revise Regulation 2.08 Fees, which could

lead to a substantial increase in the fees associated with

Federally Enforceable District Origin Operating Permits,

while Title V sources may not be affected significantly.

It is expected that this regulatory package will greatly

simplify the permitting process in Jefferson County, and

reduce the backlog that has existed for years. The

informal comment period ended January 24, 2013 and

the LMAPCD staff estimates that the entire package,

after a formal comment period and response to

comments, could be reviewed and approved by the

LMAPCD Board by July of 2013.

Final Indiana Air Pollution Control Board Actions


Greenebaum Doll LLP

The Indiana Air Pollution Control Board (APCB) met

for the last time on November 7, 2012. The APCB

approved the following rulemakings:

(1) Readoption of LSA #12-467(E), Emergency

Rule Amending the federal designation for part of

Dearborn County including Lawrenceburg Township,

Lake County and Porter County to Nonattainment of the

2008 8-hour ozone National Ambient Air Quality

Standards (NAAQS).

(2) Final Adoption of Amendments to Rules

Concerning Attainment of the Lead NAAQS, LSA #11-

774, which: (a) amends the attainment classifications at

326 IAC 1-4 consistent with EPA’s final

unclassifiable/attainment designations in Indiana and

nonattainment designation in Delaware County; (b)

includes administrative changes to 326 IAC 15,

including deleting sources that are no longer operating;

(c) adds emission standards for secondary lead smelters

at 326 IAC 20-13.1; (d) makes changes to address the

National Emission Standards for Hazardous Air

Pollutants (NESHAP) for Secondary Lead Smelting;

and (e) includes an expedited compliance schedule of

certain NESHAP requirements for Exide Technologies,

Inc. in Delaware County.

(3) Final Adoption of the volatile organic

compounds (VOC) Organic Solvent Degreasing

Operations Rule, LSA #07-352, which: (a) extends the

material requirements for cold cleaner degreasers at 326

IAC 8-3-8 to all cold cleaner degreasers located in any

county in the state; (b) eliminates the grandfathering of

organic solvent degreasing operations in Indiana at 326

IAC 8-3-1; (c) amends applicability of 326 IAC 8-3-1,

repeals sections 326 IAC 8-3-2, -3, and -4 and

consolidates requirements into 326 IAC 8-3-5, -6, and -

7; (d) exempts solvent degreasing operations not located

in Clark, Floyd, Lake or Porter Counties from the

following: (i) the operational and control requirements

of 326 IAC 8-3-5, -6, and -7 if subject to 326 IAC 20-6-

1 (NESHAP for Halogenated Solvent Cleaning) or if

uses only organic solvents that contain less than 1

percent VOCs by weight; (ii) the material requirements

of 326 IAC 8-3-8 if the cold cleaner degreaser is subject

to 326 IAC 20-15-1 (NESHAP for Aerospace

Manufacturing and Rework Facilities) or if uses aqueous

cleaning solvents as defined in 326 IAC 8-3-0.5.

(4) Final Adoption of LSA #12-510, Amendments

to 326 IAC 1-3-4, Ambient Air Quality Standards: (a)

amends 326 IAC 1-3-4 to incorporate portions of 40

CFR 50.11 to update its references to the primary and

secondary NAAQS for oxides of nitrogen, with NO2 as

the indicator; (b) amends 326 IAC 1-3-4 to incorporate

portions of 40 CFR 50.5 to update its references to the

secondary NAAQS for sulfur oxides (SO2); (c) amends

326 IAC 1-3-4 to revise the 24-hour PM2.5 standard; (d)

amends 326 IAC 1-3-4 to remove the annual PM10

secondary standards; and (e) amends 326 IAC 1-4-1 to

add a definition of PM2.5 to the rules concerning

attainment designations.



The following rulemakings previously adopted by the

APCB became effective in the fourth quarter of 2012:

(1) Sewage Sludge Incineration Rule, LSA #11-586,

which incorporates by reference the emission guidelines

for existing sources of sewage sludge incineration units

located at wastewater treatment facilities designed to

treat domestic sewage sludge, 40 CFR Part 60, Subpart

MMMM, 76 Fed. Reg. 15372 (excluding the New

Source Performance Standards (NSPS) and the sections

dealing with the state implementing a state plan) into

326 IAC 11-10-1 and -2 (effective November 1, 2012);

and (2) Air Curtain Destructors Rule, LSA #11-317,

which amends the definition of “air curtain destructors”

in 326 IAC 1-2-2.5, to include the operation of units

with refractory lined boxes and amends 326 IAC 4-1-7

to allow for the operation of portable self-contained air

curtain destructors (effective November 10, 2012).

New Indiana Environmental Rules Board Established January 1, 2013


Greenebaum Doll LLP

Pursuant to IC 13-13-8 the Indiana Air Pollution

Control Board, Solid Waste Management Board and

Water Pollution Control Board were all abolished

effective January 1, 2013. A new consolidated

Environmental Rules Board was established and became

effective on that same day.

The new appointees to the Indiana Environmental

Rules Board (“Board”) are as follows:

Chairperson of the Board

General public representative: Beverly Gard,

Greenfield, former Indiana State Senator and former

Chair of the State Senate Energy and Environmental

Affairs Committee.

Vice Chair of the Board

Small business representative: Bill Etzler, LaOtto,

Vice President and Regional Manager for Aqua

Indiana.

Members

Local government representative: Joanna

Alexandrovich, Evansville, Ozone Officer at the

Vanderburgh County Health Department.

Environmental interests representative: Tom

Anderson, Michigan City, owner of Conservation

Connections, LLC, a conservation consulting group.

Manufacturing representative: Gail Boydston,

Indianapolis, Manager of Environmental Services at

Eli Lilly.

Public utility representative: Kelly Carmichael,

Merrillville, Director of Environmental Policy and

Permitting at NiSource, Inc.

Solid waste management industry representative:

Cal Davidson, Clayton, Recycling Manager at

Ray’s Trash Service.

Labor representative: Chris Horn, Lynnville,

recently retired from ALCOA Aluminum.

Health professional representative: Ted Niemiec,

East Chicago, Medical Director and Manager of

Health Services at ArcelorMittal Indiana Harbor.

General public representative: Gary Powdrill,

former member of the Indiana Water Pollution

Control Board and Indiana State Chamber of

Commerce Environmental Committee.

Agricultural representative: Ken Rulon, Arcadia,

operates a family owned farm, Rulon Enterprises.

Terms expire December 31, 2016.

Additionally the Board will include the following ex

officio members:

the Commissioner of the State Department of

Health;

the Commissioner of the Indiana Department of

Environmental Management (non-voting member);

the Director of the Indiana Department of Natural

Resources;

the Indiana Lieutenant Governor; and

the Indiana Secretary of Commerce.

Pursuant to IC 13-13-8 the Board is to be comprised

of 16 members, 11 of whom are gubernatorial



appointees from various industries and the general

public, and five ex officio members. No more than six

of the appointed members of the board may be members

of the same political party. Eight members of the

Environmental Rules Board, five of whom must be

appointed members, constitute a quorum for rulemaking

purposes.

The Board is expected to meet for the first time in

February 2013. However, shortly after Governor Mike

Pence’s inauguration on January 14, 2013, he issued an

executive order placing a moratorium on new

regulations, and announced plans to initiate a process to

review all existing regulations, with the exception of

federal mandates not subject to a waiver request, rules

needed to reduce the cost or burden on job creation, and

rules to address emergency health or safety concerns.

Therefore, the new Board will face additional hurdles in

promulgating rules.

N A A Q S

EPA Revises NAAQS for Fine Particulate Matter

By Jack C. Bender, Attorney, Bingham

Greenebaum Doll LLP

On December 14, 2012 EPA signed a final rule that

increases the stringency of the National Ambient Air

Quality Standard (NAAQS) for fine particulate matter

(PM2.5). It was published in the Federal Register on

January 15, 2013. The revised PM2.5 standard will

become effective on March 18, 2013. In particular, the

final rule strengthens the primary annual PM2.5 standard

from 15 micrograms per cubic meter (ug/m3) to 12

ug/m3. The existing annual standard was set in 1997.

In finalizing the rule, EPA determined to retain the

existing 24-hour primary standard for PM2.5 at 35 ug/m3.

The 24-hour standard was last revised in 2006. EPA has

also retained the existing secondary standards for PM2.5,

which are essentially set at the same level as the existing

primary PM2.5 standards. The existing secondary 24-

hour PM standards are intended to protect against

visibility impairment. Finally, EPA has retained the

existing coarse particulate matter (PM10) 24-hour

primary and secondary standards, which are 150 ug/m3.

Information available from EPA indicates that 66

counties on a nationwide basis have ambient air

monitors that currently do not show compliance with the

12 ug/m3 annual PM2.5 standard based upon ambient air

monitoring data from 2009 through 2011. Based upon

particulate matter emission reductions required by

current rules, EPA predicts that only seven counties

located in California will not meet the new PM2.5 annual

standard of 12 ug/m3 by 2020. In Kentucky and Indiana,

EPA projects 11 counties would be designated as

nonattainment based upon data from existing monitors in

those counties. In Indiana, this includes the counties of

Clark, DuBois, Floyd, Lake, Marion, Spencer,

Vanderburgh, and Vigo. In Kentucky, the potential

nonattainment counties include Bullitt, Daviess, and

Jefferson. It should be noted, however, that the three-

year annual design value of PM2.5 in ambient air in many

counties in both states is above 11.0 ug/m3, and thus, are

close to the new standard. States will have a year to

make recommendations for areas to be designated as

attainment and nonattainment for the new annual PM2.5

standard.

Because the new annual PM2.5 standard, when

effective, would apply for purposes of prevention of

significant deterioration (PSD) permitting, EPA has

included a grandfathering provision in the final rule to

ensure that changes to the PM2.5 standard do not delay

issuance of pending PSD permits and to reduce potential

permitting burdens. In particular, the grandfathering

provision provides that PSD review based upon the

existing annual PM2.5 standard will be available for any

draft PSD permit or preliminary determination that has

been published for public notice prior to the March 18,

2013 effective date of the revised PM2.5 standard (i.e., 60

days after publication of the final rule in the Federal

Register) and for PSD permit applications that have been

deemed complete by the permitting agency as of the time

of signing of the final rule (December 14, 2012). For

permit applications that do not meet one of these two

criteria, the permit application will be reviewed to ensure

compliance with the revised annual PM2.5 standard. The

grandfathering provision does not apply to any other

pollutants.

EPA explained in the preamble to the final rule that it

is not proposing and is not finalizing any changes to the

existing PM2.5 significant emission rates (SERs),

significant impact levels (SILs), and significant

monitoring concentrations (SMCs). Accordingly, these

screening tools, which establish de minimis thresholds

for PSD permitting purposes, would have remained the

same as promulgated in EPA’s May 16, 2008 and

October 20, 2010 final rules. However, as discussed



elsewhere in this issue of the Air Quality Letter, the

October 20, 2010 final rule establishing these screening

tools was vacated by the U.S. Court of Appeals on

January 22, 2013. Also, the May 16, 2008

implementation rule for the PM2.5 standard was

remanded to EPA on January 4, 2013 by the U.S. Court

of Appeals for the D.C. Circuit, but that court ruling is

not expected to affect the 10-ton per year SER

established for PM2.5 in attainment areas.

Finally, the preamble to the final rule also discusses

modeling tools and guidance applicable to modeling

impacts of PM2.5 emissions. EPA references its March

23, 2010 guidance memorandum from Stephen Page as

containing interim procedures to address the fact that

compliance with the 24-hour PM2.5 standard is based

upon a particular statistical form and to address the

complications associated with the impacts of secondarily

formed PM2.5 due to precursors. To provide more detail

and guidance on those issues, EPA stated in the

December 14, 2012 rule that it intended to issue final

guidance on modeling of PM2.5 impacts from stationary

sources for permitting purposes by the end of calendar

year 2012. As of the date of this publication, that

guidance has not been issued and may be delayed due to

complications from the above referenced Court of

Appeals rulings. EPA states it expects the revised

guidance will address most, if not all, of the remaining

issues relating to PM2.5 air quality impact demonstrations

under the PSD program at least until EPA takes

additional steps to improve existing regulatory models

and procedures.

U.S. Court of Appeals for the D.C. Circuit Remands EPA’s Implementation Rule for its PM2.5 NAAQS and Separately Vacates PM2.5 Significant Impact Levels and Significant Monitoring Concentrations

By Jack C. Bender, Attorney, Bingham

Greenebaum Doll LLP

On January 4, 2013, the U.S. Court of Appeals for

the District of Columbia Circuit ruled that two EPA final

rules establishing implementation requirements for the

PM2.5 NAAQS were inconsistent with the Clean Air Act.

The two rules at issue were EPA’s April 25, 2007 and

May 16, 2008 implementation rules and specifically, the

components of those rules that applied to nonattainment

New Source Review (NSR).

In promulgating the implementation rules, EPA relied

upon the general nonattainment NSR provisions of

Subpart 1 of Part D of Title I of the Clean Air Act, rather

than the particulate-matter specific provisions of Subpart

4 of Part D of Title I. The Natural Resources Defense

Council and Sierra Club challenged the rulemakings on

the basis that the more specific and more stringent

provisions of Subpart 4 of Part D should have been

applied. Under Subpart 1, EPA has more flexibility in

extending the deadlines for achieving attainment with

the NAAQS.

EPA argued that because Subpart 4 of Part D

repeatedly refers to PM10 rather than to PM2.5 or

particulate matter, it was reasonable for it to interpret

Subpart 1 as applying to nonattainment implementation

provisions for the PM2.5 NAAQS. The court, however,

found that PM10 includes PM2.5 and therefore, under a

plain reading of Subpart 4, it applies to PM2.5. Because

the court found the statute is plain on its face, EPA’s

interpretation was not entitled to deference. The court

therefore remanded to EPA the two rulemakings to

repromulgate the nonattainment NSR provisions

pursuant to Subpart 4 of Part D, consistent with the

court’s opinion. Because the court did not invalidate the

rulemakings, which also included provisions relating to

PSD review in attainment areas, the ruling should not

affect the aspects of the regulations that relate to PSD

review of permit applications with respect to PM2.5.

On January 22, 2013, the U.S. Court of Appeals ruled

on the challenge brought by the Sierra Club to the

significant impact levels (SILs) and significant

monitoring concentration (SMC) established for PM2.5 in

EPA’s October 20, 2010 rulemaking. The court found

there is no authority for SMCs under the Clean Air Act,

and therefore, vacated the PM2.5 SMC. The SMCs that

have been established for other pollutants were not at

issue in the case and were not addressed by the court’s

ruling. However, assuming the ruling stands, it creates

uncertainty as to what action EPA may take in the future

with respect to existing SMCs. The ruling calls into

question EPA’s authority to preclude promulgation of

new SMCs for any pollutant.

With respect to the PM2.5 SIL, the court vacated and

remanded the SIL to EPA, at the agency’s request. EPA

noted the SIL may not be protective of the PM2.5

NAAQS in all circumstances, such as where PM2.5

concentrations in ambient air are already close to the

NAAQS, and the court agreed with that assessment. The



Sierra Club argued SILs were universally invalid and

unauthorized under the Clean Air Act, but the court

found that issue was not ripe for a decision. The claim,

however, will almost certainly be reasserted in a

challenge to any revised PM2.5 NAAQS. The SIL ruling

raises a question as to whether EPA will, in any future

rulemaking, also attempt to clarify when other SILs may

not be protective of NAAQS. SILs and SMCs have been

important screening tools that were used to prevent

unnecessary PSD permitting delays where impacts of

emissions are considered de minimis. Accordingly, the

court’s ruling will likely result in significant delays in

some major industrial projects.

EPA Issues Final Rule Designating Kentucky Portion of Ashland-Huntington Area as Attainment for 1997 PM2.5 NAAQS

By Robin B. Thomerson, Attorney, Bingham

Greenebaum Doll LLP

On December 26, 2012, EPA approved KDAQ’s

request to redesignate the Kentucky portion of the tri-

state Huntington-Ashland, West Virginia-Kentucky-

Ohio PM2.5 nonattainment area to attainment for the

1997 Annual PM2.5 NAAQS and approved the State

Implementation Plan (SIP) revision containing a

maintenance plan for that area. The area is composed of

Boyd County and a portion of Lawrence County,

Kentucky. Kentucky’s request to redesignate included

three years of complete, quality-assured ambient air

quality data to demonstrate that the standard has been

met for the entire area. The annual PM2.5 design values

for the Huntington-Ashland area have declined since

2007.

In addition to the 1997 annual PM2.5 NAAQS, EPA

has promulgated a 24-hour PM2.5 NAAQS which was

amended in 2006. All counties in Kentucky are

attainment for the 2006 24-hour PM2.5 standard. With

the redesignation for the Huntington-Ashland area, only

the Kentucky counties of Bullitt and Jefferson Counties

will remain nonattainment for the 1997 annual PM2.5

standard. EPA approved redesignation of the

Cincinnati-Hamilton area (Boone, Campbell and Kenton

counties in Kentucky) on December 15, 2011. As

reported elsewhere in this issue of the Air Quality Letter,

EPA recently revised the primary annual PM2.5 standard

from 15 micrograms per cubic meter (ug/m3) to 12

ug/m3. The revised PM2.5 standard will become effective

on March 18, 2013.

EPA Denies Indiana’s Request for Reconsideration of Nonattainment Designation for Lake and Porter Counties

By Jay R.S. Parks, Attorney, Bingham Greenebaum

Doll LLP

On January 31, 2012, EPA notified Indiana via a

letter to then Governor Mitch Daniels that it planned to

recommend that Jasper, Lake, and Porter counties be

included in the Chicago nonattainment area under the

2008 Ozone NAAQS. This was an about face from a

previous notice sent December 9, 2011 proposing to

designate these areas as attainment. The abrupt change

was based on ozone monitoring data submitted by

Illinois on December 7, 2011, which showed a

monitored violation at the Zion, Illinois monitor.

Indiana disagreed with the recommended

designations, and submitted data rebutting the inclusion

of these counties in the nonattainment area. After

reviewing the data, EPA removed Jasper County from

the list, but announced on May 31, 2012 that Lake and

Porter Counties would be designated as nonattainment.

“Air Quality Designations for the 2008 Ozone Standards

for Several Counties in Illinois, Indiana, and Wisconsin;

Corrections to Inadvertent Errors in Prior Designations”

77 Fed. Reg. 112 (June 11, 2012). On August 10, 2012,

IDEM Commissioner, Thomas Easterly, sent a letter on

behalf of the state of Indiana asking EPA to reconsider

and stay its designation of Lake and Porter counties as

nonattainment. The letter stated that Indiana believed

EPA failed to consider data submitted by the state

pertaining to the five-factor test EPA uses to determine

nonattainment areas. The letter also claimed that EPA

did not adequately respond to comments on Lake and

Porter Counties submitted by Indiana during the process

that designated these counties as nonattainment.

On December 14, 2012 EPA denied Indiana’s

Petition for Reconsideration and Request for Stay

concerning EPA’s final rule, which designated Lake and

Porter Counties as nonattainment. Even though

monitors in these counties showed attainment under the

2008 Ozone NAAQS, EPA reached the conclusion that

the counties contributed to the violation at the Zion,



Illinois monitor and therefore, were appropriately

designated as nonattainment.

In its petition for reconsideration, Indiana claimed

that Illinois caused the violations at the Zion monitor

when it failed to maintain its vehicle emission testing

program as required by its state implementation plan.

EPA responded that it still believed that Lake and Porter

Counties contributed to the violation, and thus were

properly designated, even if the violation would have

occurred without contribution from the Indiana counties.

Indiana also challenged the meteorological data used by

EPA in its designation as not being specific to the 2009-

2011 period when violations were detected. Though

EPA agreed that the data was not period specific, it

believed that there was little variability in the data from

year to year and the data was therefore accurate and

relevant. Indiana raised several other issues including

disparate treatment of Indiana counties, insufficient time

allowed by EPA to consider newly submitted data, and

lack of benefit that could be gained by additional

pollution controls despite their high costs. EPA rejected

all of these arguments stating that it had previously

responded to the issues during the comment period for

the rulemaking, Indiana failed to raise the issues during

the comment period, or that EPA had correctly

considered data submitted by Indiana and any difference

of treatment was due to different sets of facts and data

unique to each county.

Indiana is seeking review of the nonattainment

designation in the U.S. Court of Appeals for the District

of Columbia Circuit. The case has been consolidated

with other challenges to nonattainment designations

under the 2008 Ozone NAAQS and is known as Texas

Pipeline Association v. EPA, Case No. 12-1312.

The “Designations for the 2008 Ozone NAAQS”, 77

Fed. Reg. 98 (May 21, 2012) p. 30088, are also being

challenged in the U.S. Court of Appeals for the District

of Columbia Circuit in State of Mississippi, et al. v.

EPA, Case No. 08-1200. Initially EPA had proposed

revisions to the 2008 standards, but later rescinded the

proposal, choosing instead to review the standards

during the five-year review period mandated by the

Clean Air Act beginning in 2013. The court conducted

oral argument on November 16, 2012, and the parties

await its decision.

A I R T O X I C S

EPA Finalizes Latest Iteration of Boiler Rules

By Andy Bowman, Attorney, Bingham Greenebaum

Doll LLP

On December 20, 2012, EPA finalized changes to the

National Emission Standards for Hazardous Air

Pollutants (NESHAP) for industrial, commercial and

institutional boilers and process heaters located at major

and area sources of hazardous air pollutants (HAP). The

adjusted standards, originally finalized in March 2011,

have been marked by controversy, litigation and

numerous delays that created long-running uncertainty

for affected sources and potentially affected sources.

The latest iteration of the rules is the product of EPA’s

reconsideration of the March 2011 version.

The tumultuous history of these rules goes back to at

least September 2004 when EPA first established the

NESHAP rules for new and existing boilers and process

heaters at major and area sources of HAP. The rules

were challenged, and in June 2007 the U.S. Court of

Appeals for the D.C. Circuit vacated the rules and

remanded them to EPA. New versions of the major

source rule (“Boiler MACT”) and the area source rules

were issued in March 2011. At the same time EPA

announced it would reconsider certain aspects of the rule

and subsequently stayed the compliance dates of the

Boiler MACT. In December 2011 EPA proposed

reconsidered versions of the rules.

In January 2012 the U.S. Court of Appeals reinstated

the Boiler MACT compliance dates. In response EPA

issued memoranda stating it would exercise enforcement

discretion for major source boilers and process heaters

missing initial notification deadlines and for area source

boilers and process heaters missing the initial tune-ups

or compliance notification deadlines until the earlier of:

(1) the effective date of a new final rule, or (2)

December 31, 2012. The final rule was published in the

Federal Register on January 31, 2013, and the

amendments become effective on April 1, 2013.

Presumably, EPA will extend its enforcement discretion

until the effective date of the rule, but is has not yet

announced its plans.



Some of the key adjustments to the Boiler MACT

include:

Creation of separate subcategories for light and

heavy industrial liquid-fired units and addition of a

new subcategory for fluidized bed units with an

integrated fluidized bed heat exchanger designed to

burn coal. There are now 19 subcategories. All but

three subcategories are subject to numeric emission

limits.

Single particulate matter (PM) emission limit for all

coal/solid fossil fuel subcategories and emission

limits based on PM as a combustion-based pollutant

for each biomass fuel and liquid fuel subcategory.

Changes to the emission limits for carbon monoxide.

For existing units, 11 subcategories are less stringent

and three are more stringent. For new units 11 are

less stringent, two are more stringent and one

remains unchanged.

Addition of stack testing requirements when

alternative total selective metals emissions limits are

used in lieu of PM as a surrogate.

Replacing numeric dioxin emissions limits with

work place standards in all subcategories.

Revisions to the definitions of “startup” and

“shutdown.” Startup ends when any of the steam or

heat from the boiler or process heater is supplied for

heating and/or generating electricity or for any other

purpose. Shutdown begins when either no steam or

heat is supplied for heating and/or generating

electricity or for any other purpose or no fuel is

being fired. Shutdown ends when there is no heat or

steam being supplied and no fuel being fired.

Changes to the definition of limited use subcategory

from no more than 876 hours of operation to a unit

with a federally enforceable operating limit of less

than or equal to 10 percent of an average annual

capacity factor.

Clarification that the affirmative defense is only

available where an event that causes a violation of

the emissions standard meets the definition of a

malfunction.

Existing major sources must be in compliance with

the Boiler MACT by January 31, 2016. A one-year

extension may be granted where necessary for the

installation of controls. New sources (i.e., sources which

commenced construction or reconstruction on or after

June 4, 2010) must comply by January 31, 2013, the date

the rule was published in the Federal Register, or upon

startup, whichever is later. Petitions seeking judicial

review of the rule may be filed by April 1, 2013. Only

time will tell whether this rule will be subject to further

litigation.

More information concerning the Boiler MACT and

the rule for area sources can be found at

http://www.epa.gov/airquality/combustion/actions.html.

EPA Issues Final Rule for NESHAP for the Nine Chemical Manufacturing Area Source Categories in Response to Petition for Reconsideration

By Kate E. Beatty, Attorney, Bingham Greenebaum

Doll LLP

On October 29, 2009, EPA issued a final rule (2009

Final Rule) regarding the NESHAP levels for the nine

chemical manufacturing area source (CMAS) categories.

After promulgation of the rule, industry leaders

including the American Chemistry Council (ACC) and

the Society of Chemical Manufacturers & Affiliates

(SOCMA) petitioned the EPA for reconsideration. The

ACC and SOCMA specifically referenced six provisions

which they wanted the EPA to reconsider. The ACC and

SOCMA argued the new provisions in the 2009 Final

Rule were burdensome and the environmental benefits

did not outweigh the costs associated with complying

with the new rule, especially the Title V permit

requirement. Specifically, the ACC explained that each

time a different chemical product was created the

manufacturer would have to amend their Title V permit

which prevents flexibility in their manufacturing

processes.

The six provisions the ACC and SOCMA requested

EPA to reconsider included: (1) the requirement that all

post-1990 synthetic area sources obtain Title V permits;

(2) the requirement to comply with the overlapping rules

independently; (3) leak inspections which require direct

and proximal inspection of all areas of potential leaks

within the chemical manufacturing process unit

(CMPU); (4) the requirement that cover lids be utilized

on process vessels in HAP service at all times, except

during times of material addition and sampling; (5) the

requirement to conduct leak inspections while the

equipment is in HAP service; and (6) the requirement

http://www.epa.gov/airquality/combustion/actions.html



that CMPUs include the processes and equipment used

to produce a “family of materials.”

EPA agreed to reconsider the six provisions and

published its proposed rule provision on January 30,

2012. As the compliance date for the previous 2009

Final Rule was scheduled for October 29, 2012 and

because the EPA was still finalizing the reconsideration

action, a brief stay was published on October 25, 2012.

EPA published the revised final rule in the December

21, 2012 Federal Register (2012 Final Rule). The

revised 2012 Final Rule did not change the

environmental emissions requirements but rather

focused on the issues of flexibility and clarity. The final

rule includes the following revisions in response to the

Petition for Reconsideration: (1) area sources required to

obtain a Title V permit are limited to those synthetic area

sources which installed a federally-enforceable air

pollution control device on an affected CMPU (Title V

applications must be submitted by December 21, 2013);

(2) sources are still required to comply with the most

stringent rule if there are overlapping provisions in the

CMAS rule and other NESHAPs; (3) direct and

proximal leak inspection requirements were removed,

instead quarterly sensory inspections of all equipment

and process vessels are acceptable as long as the sensory

inspection can detect leaks within the CMPU; (4) the

cover lid must be in place and closed at all times when a

process vessels is in organic HAP service or metal HAP

service except during manual operations, such as

material addition, removal, sampling, inspection or

cleaning; (5) leak inspections of a CMPU that contains

metal HAP as a particulate must still be conducted while

in metal HAP service but if the CMPU does not contain

metal, the inspection may occur during VOC service;

and (6) the definition of “family of materials” was

altered to coincide with the CMAS rule and it was

revised to only apply to products whose production

involves emission of the same Table 1 HAP.

Although EPA did not eliminate the Title V permit

requirement for all area sources it explained that the

Title V Permit Program already allows for flexibility in

production. The EPA referenced the “Alternative

Operating Scenarios” and “Approved Replicable

Methodologies” as two programs available to chemical

manufacturers to avoid permit revisions and stressed the

importance of implementing these programs in

conjunction with obtaining their Title V permits.

The new compliance date for existing sources is

March 21, 2013. The compliance date for new sources

was not extended and remains October 29, 2012.

EPA Policy on SIP Actions and Redesignation Requests in the Wake of Court Decision Vacating CSAPR and Potential Impact of Subsequent Denial of EPA’s Petition for Rehearing

By Larry Kane, Attorney, Bingham Greenebaum

Doll LLP

The August 2012 decision of the U.S. Court of

Appeals for the District of Columbia in EME Homer

City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir.

2012), invalidating and vacating EPA’s Cross-State Air

Pollution Rule (CSAPR) has, for the second time, left

the nation without a regulatory framework to address the

interstate transport of nitrogen oxides (NOx) and sulfur

dioxide (SO2).1

Among the ramifications of the EME Homer City

decision was the uncertainty created for various State

Implementation Plans (SIPS) for attaining National

Ambient Air Quality Standards (NAAQS) for ozone or

PM2.5 that were dependent in part on reductions of

emissions of NOx or SO2 to be achieved under CSAPR

and had already been approved or were pending for

approval at the time of the decision. Similarly impacted

are pending requests by states for redesignation of

nonattainment classifications that also were predicated in

part on the emission reductions to come from

implementation of CSAPR.

EPA filed a petition for rehearing of the EME Homer

City case with the Court of Appeals but recognized a

need to continue to take action on pending regulatory

filings while awaiting a decision on the rehearing

petition. To that end, EPA’s Assistant Administrator for

the Office of Air and Radiation, Gina McCarthy, issued

a policy memorandum dated November 19, 2012,

1 The first EPA rule to address interstate transport of air

pollutants, the Clean Air Interstate Rule (CAIR) adopted by

the agency in 2005, was previously invalidated by the same

U.S. Court of Appeals several years earlier. Recognizing the

significant regulatory gap resulting from its decision in EME

Homer City, the Court of Appeals took the unusual step of

resuscitating CAIR from the regulatory ash heap as an interim

measure to fill the gap.



directed to the agency’s Regional Air Division Directors

describing how EPA intends to proceed. This policy

memorandum is referred to for purposes of this article as

the “Interim CSAPR Policy”. Acting with alacrity, the

Court of Appeals, en banc, denied the pending petitions

for rehearing on January 24, 2013. The remainder of

this article will address the elements of the EPA’s

interim policy and explore what impact the denial of the

rehearing petition may have on policy implementation.

The first element of the Interim CSAPR Policy builds

upon the Court’s decision to reinstate CAIR as an

interim measure for mitigation of interstate pollution

transport. EPA will rely on NOx and SO2 emission

reductions required by CAIR as “permanent and

enforceable” in reviewing and acting upon pending

requests by states for approval of attainment SIPs,

redesignation requests, and maintenance SIPs that, as

designed, were dependent, at least in part, upon pollutant

emission reductions to be achieved through CSAPR.

EPA’s OAR staff are directed to work with Regional

offices to “identify, prioritize, and act promptly” on any

pending redesignation requests and SIP submittals that

rely upon CSAPR reductions. According to the Interim

CSAPR Policy, this reliance by EPA upon CAIR

emission reductions in making decisions on pending

state requests may continue until a valid rule replacing

CSAPR is adopted and SIPs complying with any such

new rule are submitted by states and acted upon by EPA.

It does not appear that the denial of the rehearing

petitions will have any significant impact on this aspect

of the Interim CSAPR Policy.

Second, the Interim CSAPR Policy references a

pending action on an unidentified state plan that relies

on CAIR reductions in emissions as the basis of

satisfying regional haze program requirements and

indicates that it will be appropriate to approve the

submitted state plan.

A third component of the Interim CSAPR Policy

provides that, pending a decision on EPA’s petition for

rehearing, EPA will defer reconsideration of certain

categories of actions taken by EPA on regional haze

plans prior to the EME Homer City decision.

As the fourth point of the Interim CSAPR Policy,

EPA announced that, during the pendency of its

rehearing petition, EPA will refrain from making

findings that a SIP is deficient for failing to meet the

good neighbor obligations of Section 110(a)(2)(D)(i)(I)

of the Clean Air Act. This aspect of the Interim CSAPR

Policy is effectively mooted by the Court’s denial of the

petition for rehearing since EPA now will have no

option but to comply with the Court’s holding that a SIP

cannot be considered deficient for failing to fulfill the

good neighbor obligation until EPA first quantifies the

obligation and affords the state an opportunity to act

upon it. The interim continuation of CAIR’s provisions

under the EME Homer City decision seems to suggest

that pollutant reductions required under that statute may

be utilized as a means of addressing the good neighbor

obligations.

In sum, the Interim CSAPR Policy would appear to

be unaffected by denial of rehearing with respect to the

approach outlined for proceeding with SIP reviews that

involve reliance on reductions of NOx and SO2

emissions required under CAIR. In contrast, it is

unclear what effect the denial of rehearing may have on

EPA’s approach toward reconsideration of certain past

agency decisions on regional haze reduction plans.

Finally, the Interim CSAPR Policy’s provisions relating

to EPA’s past approach on implementing the Clean Air

Act’s good neighbor obligations has been mooted by the

Court’s denial of rehearing petitions and EPA will have

to revise its approach to comport with the EME Homer

City Generation decision.

More importantly, however, uncertainty will continue

to plague the issue of interstate pollution transport for

many years to come. States proceeding with SIPs

relying on CAIR reductions are confronted with the

prospect of yet another round of SIP development and

implementation once (if) a replacement for CSAPR and

CAIR is developed and adopted. Power plant owners

contemplating decisions on controls for NOx and SO2 to

address emission reductions required by SIPs relying on

CAIR will have to wrestle and, perhaps, gamble with

problematic considerations over whether those decisions

will be cost-effective and compatible with requirements

of an eventual replacement rule.



EPA Issues Proposed Rule Announcing Reconsideration of Mercury Air Toxics Standards and Utility NSPS

By Robin B. Thomerson, Attorney, Bingham

Greenebaum Doll LLP

On November 30, 2012, EPA published proposed

rules that reconsider certain aspects of the National

Emissions Standards for Hazardous Air Pollutants from

Coal-and Oil-Fired Electric Utility Steam Generating

Units (known as the Mercury Air Toxic Standards or

MATS) and the Standards of Performance for Fossil-

Fuel-Fired Electric Utility, Industrial-Commercial-

Institutional and Small Industrial-Commercial-

Institutional Steam Generating Units (known as the

Utility NSPS). The proposed rules are in response to

petitions received by EPA for reconsideration of the

MATS and Utility NSPS final rules published on

February 16, 2012. The reconsideration addresses a

limited set of issues: (1) revision of certain MATS new

source standards; (2) MATS requirements applicable

during periods of start-up and shutdown; (3) Utility

NSPS start-up and shutdown provisions related to the

particulate matter (PM) standard; and (4) Utility NSPS

definition and monitoring provisions.

Of note, EPA has proposed to raise the MATS

mercury limit for new electric generating units (EGU)

that burn non-low rank virgin coal in response to

industry petitions that the limit was too low for

emissions to be reliably measured in a manner that

would allow sources to operate controls in a way that

ensured compliance with the standard. The petitions

filed also raised concerns regarding the data and

development methods used by EPA in setting certain

other MATS emissions standards for new coal-fired

sources. As a result, EPA has proposed relaxed standards

for filterable PM, hydrogen chloride (HCl), sulfur

dioxide limits used as a surrogate for acid gases, lead

and selenium for new coal-fired plants. EPA is not

proposing any change to the emission standards for

existing units under MATS.

Also of note, EPA has proposed clarification of the

MATS work practice standards for start-up and

shutdown. MATS work practice standards require

sources to combust clean fuels during start-up and

shutdown. The reconsideration proposal adds certain

synthetic natural gas, syngas, propane and ultra-low

sulfur diesel to the list of clean fuels. EPA has also

proposed to revise the work practice standards to

account for the differences in certain types of EGUs for

which control devices come online at varying

temperatures. EPA has proposed to allow limestone

injection to begin after appropriate temperatures have

been attained in fluidized bed combustion units and

allow control devices to start as soon as technically

feasible after the appropriate temperature has been

reached. Likewise, EPA has proposed to allow fluidized

bed combustion EGU control devices to be disengaged

during shutdown, consistent with manufacturers’

specifications. EPA has also proposed revising the

definition of start-up to clarify that the start-up period

begins with firing of clean fuels and ends with

generation of electricity for any useful purpose or

production of useful thermal energy, whichever comes

first. The definition of shutdown would also be amended

to specify that shutdown begins when the EGU no

longer generates electricity or makes useful thermal

energy or when no coal, liquid oil, syngas, or solid oil-

derived fuel is being fired and ends when electricity is

no longer generated or the unit no longer makes useful

thermal energy and no fuel is being fired.

The comment period for the proposed reconsideration

closed on January 7, 2013. EPA has stated it will issue a

final reconsideration in March of 2013.

EPA Amends Widely Applicable Air Emission and Performance Standards Applicable to Stationary Internal Combustion Engines


Greenebaum Doll LLP

On January 30, 2013, EPA published a final rule

amending the widely-applicable stationary internal

combustion engine emission and performance standards

set forth in 40 CFR Part 63, Subpart ZZZZ and 40 CFR

Part 60, Subparts IIII and JJJJ to provide limited relief

from certain requirements applicable to owners and

operators facing upcoming May and October 2013

compliance deadlines.

Of significance to a large number of covered sources,

EPA declined to finalize its May 2012 proposal that

would have allowed existing emergency engines located

at area sources of hazardous air pollutants to include

peak shaving in the 50 hours of non-emergency

operation allowed for such engines until April 2017.



However, in consideration of the short time between the

final rule and the 2013 compliance dates, EPA did

finalize an amendment allowing those engines to

temporarily be used for limited peak shaving or non-

emergency demand response until May 3, 2014 where

certain conditions are met.

The final rule otherwise makes several changes to the

standards, including: (1) broadening the circumstances

under which emergency engines may operate as part of

an emergency demand response or similar program, with

conditions; (2) adding an alternate demonstration

method for formaldehyde emission standards applicable

to certain large spark ignition non-emergency engines;

and (3) relaxing the standards applicable to certain large,

existing area source spark ignition engines. The final

rule also makes several miscellaneous corrections and

revisions to the standards. The final rule will become

effective April 1, 2013.

E N F O R C E M E N T

EPA Reports 2012 Enforcement Data and Announces Several Key Air Enforcement Priorities for 2013

By Jesse M. Parrish, Attorney, Bingham

Greenebaum Doll LLP

On December 17, EPA released enforcement data for

fiscal year 2012 (FY 12). The data is consistent with

EPA’s stated strategy to focus enforcement efforts on

high-profile cases rather than pursuing smaller cases.

EPA initiated 3,027 civil enforcement cases in FY 12

compared to 3,283 cases in fiscal year 2011 (FY 11) and

3,436 cases in fiscal year 2010 (FY 10).

In spite of this downward trend, EPA boasts an

increased amount of civil penalties and pollution

reduction. In FY 12 EPA reported a record $208

million in civil penalties. By comparison, the agency

assessed penalties of $152 million in FY 11 and $106

million in FY 10. The FY 12 increase was due in part to

a $57.3 million penalty assessed against Volvo Truck

Corp., which resulted from violations of a 1998 consent

decree. EPA also claims that enforcement actions

reduced air, water, and chemical pollution by 2.2 billion

pounds in FY 12. By comparison, EPA announced

pollution reductions of 1.8 billion pounds in FY 11 and

1.4 billion pounds in FY 10. The increase in FY 12 was

due in part to a September agreement with Walter Coke,

Inc., that was responsible for 1.4 billion pounds of

reduced pollution pursuant to the Resource Conservation

and Recovery Act (RCRA).

On December 24, EPA released the agency’s

Statement of Priorities for 2013. In this document EPA

enumerates seven guiding priorities and highlights recent

progress and future objectives for each priority. Of the

seven priorities, two are primarily focused on air

pollution.

First, the agency is making it a priority to take action

on climate change. EPA plans to continue to deploy

existing regulatory tools as well as developing

greenhouse gas standards for both mobile and stationary

sources. In April 2012, EPA proposed GHG emissions

standards for new electric power plants. If finalized, the

standards will place a limit on carbon emissions per

megawatt hour for all future units. EPA’s enforcement

office also is expected to launch a new initiative in 2013

to target violations of the greenhouse gas reporting and

tailoring rules. This effort would likely focus on

ensuring that companies report greenhouse gas

emissions under the agency’s registry. EPA will then

analyze the registry data to determine whether

greenhouse gas emissions from a source increased in

violation of Prevention of Significant Deterioration

(PSD) requirements.

The second of EPA’s air priorities is to improve air

quality. This effort includes reviewing and implementing

air quality standards, developing Tier 3 vehicle and fuel

standards and focusing on Maximum Achievable

Control Technology (MACT) standards, which are used

to address hazardous air pollutants.

KDAQ Releases 2012 Annual Report

By Jesse M. Parrish, Attorney, Bingham

Greenebaum Doll LLP

KDAQ recently released its Annual Report for fiscal

year 2012 (FY 12). The Annual Report identifies the

division’s goals and achievements over the past year,

summarizes the current state of Kentucky’s air quality,

and highlights upcoming challenges for KDAQ. The full

DAQ Annual Report can be accessed at:



http://air.ky.gov/SiteCollectionDocuments/Annual_Repo

rt_2012.pdf.

KDAQ is the third largest division in the Department

of Environmental Protection with 166 staff positions and

is further divided into multiple branches. The Field

Operation Branch (FOB) conducts inspections out of

KDAQ’s eight regional field offices and responds to and

investigates citizen complaints. During the calendar

year 2011, the FOB conducted 3,701 inspections, an

amount comparable to the 3,795 inspections conducted

in calendar year 2010. Of these inspections, nearly 80

percent of the inspections of stationary sources resulted

in findings of compliance.

The Permit Review Branch (PRB) works to review

permit applications and issue permits within the time

limits set by state regulations. PRB has made significant

progress over the last few years to reduce a long

standing permit application back-log. At the close of FY

12, 23 permit applications were beyond the prescribed

Regulatory Time Frames, as opposed to a high of 524

applications in June 2006.

The Program Planning and Administration Branch

(PPAB) develops the state’s plans for attainment and

maintenance of NAAQS, while simultaneously

preparing for more stringent requirements. In May

2012, EPA published final designations for the 2008 8-

hour ozone standard. As a result, three northern

Kentucky counties, Boone, Campbell, and Kenton, were

designated in partial nonattainment for the 8-hour ozone

standard. The PPAB also addresses amendments of

KDAQ regulations necessary to implement the Clean

Air Act and state requirements.

The Technical Services Branch (TSB) operates a

network of 98 ambient air quality monitors and 12

meteorological data towers. TSB also observes

compliance demonstrations at permitted facilities. In FY

12, TSB hosted a division-wide source sampling

workshop. The three day workshop brought together

FOB inspectors, PRB permit writers, and TSB source

sampling staff to discuss issues, methodologies, and

Standard Operating Procedures relating to compliance

demonstrations.

During FY 12, KDAQ completed an assessment of

statewide air quality over the past three decades. The

study demonstrates a clear trend of decreased air

pollution from six federally regulated air pollutants.

Despite this success, the KDAQ Annual Report notes

that numerous new federal rules present significant

challenges in the years ahead. Specifically, Kentucky

counties will face the implementation of more stringent

sulfur dioxide and ozone NAAQS. In addition,

Kentucky’s reliance on coal-fired electricity generation

will be challenged with new standards for mercury, air

toxics, and greenhouse gases.

S I G N I F I C A N T E P A

N O T I C E S & R U L E M A K I N G S

11/19/12

77 FR 69409

Proposed Rule. EPA proposed to approve a request by

KDAQ to redesignate the Kentucky portion of the tri-

state Huntington-Ashland, West Virginia-Kentucky-

Ohio PM2.5 nonattainment area to attainment for the

1997 annual PM2.5 NAAQS. EPA also proposed to

approve Kentucky’s maintenance plan for the 1997

annual PM2.5 NAAQS for this same area. The Kentucky

portion of the Huntington-Ashland area includes Boyd

County and a portion of Lawrence County. EPA

proposed to address separate requests by West Virginia

and Ohio for their portions of the Huntington-Ashland

area through a separate rulemaking. EPA took final

action approving this proposal on December 26, 2012.

See 77 FR 75865. See Article in this issue of the Air

Quality Letter.

11/30/12

77 FR 71323

Proposed Rule. EPA announced that it was

reconsidering certain provisions of the NESHAP for the

Coal- and Oil-Fired Electric Utility Steam Generating

Units source category, referred to as the Mercury and

Air Toxics Standards (MATS), and the NSPS for the

Fossil-Fuel-Fired Electric Utility, Industrial-

Commercial-Institutional and Small Industrial-

Commercial-Institutional Steam Generating Units source

category. See Article in this issue of the Air Quality

Letter.

12/5/12

77 FR 72291

Proposed Rule. EPA proposed to conditionally approve

submissions from Kentucky, North Carolina and

Tennessee regarding those states’ infrastructure SIP

provisions related to PSD requirements for the 1997

annual and 2006 24-hour PM2.5 NAAQS. These

http://air.ky.gov/SiteCollectionDocuments/Annual_Report_2012.pdf

http://air.ky.gov/SiteCollectionDocuments/Annual_Report_2012.pdf



provisions relate to prohibiting emissions that interfere

with any other state’s measures to prevent significant

deterioration of air quality.

12/17/12

77 FR 74590

Final Rule. EPA approved Indiana’s request to revise

the South Bend/Elkhart, Indiana 1997 8-hour ozone

NAAQS maintenance SIP, by replacing previously-

approved motor vehicle emission budgets with budgets

developed using EPA’s Motor Vehicle Emissions

Simulator (MOVES) emission model. The final rule was

effective January 16, 2013.

12/20/12

77 FR 75384

Final Rule. EPA approved Indiana’s request to revise

the Delaware County (Muncie), Indiana 1997 8-hour

ozone NAAQS maintenance SIP, by replacing

previously-approved motor vehicle emission budgets

with budgets developed using EPA’s Motor Vehicle

Emissions Simulator (MOVES) emission model. The

final rule was effective January 22, 2013.

12/21/12

77 FR 75739

Final Rule; Lift of Stay of Final Rule. EPA finalized

certain amendments to the NESHAP for the Chemical

Manufacturing Area Source category. In addition to

finalizing the amendments, EPA also lifted a stay of

certain requirements of the existing NESHAP requiring

certain sources within the category to obtain a Title V

permit. The final revisions to the rule approved by EPA

include revisions to EPA’s approach to addressing

malfunctions and standards applicable during periods of

startup and shutdown. The revised rule now requires

certain synthetic area sources (i.e., those that accepted

limits to avoid major source status) to obtain Title V

permits. The rule took immediate effect on December

21, 2012. See Article in this issue of the Air Quality

Letter.

D I D Y O U K N O W ?

Lisa Jackson has announced that she will step down

as EPA Administrator. Robert Perciasepe, current

EPA Deputy Administrator, will serve as acting

Administrator at least temporarily. Perciasepe has

previously served as head of the EPA Office of

Water as well as Director of the EPA Office of Air

and Radiation. From 2003 through 2009 he served as

the chief operating officer of the National Audubon

Society.

Governor Mike Pence has announced that Thomas

Easterly will remain as Commissioner of the Indiana

Department of Environmental Management. Easterly

was originally appointed as the Commissioner in

2005. Easterly previously served as President of

Environmental Business Strategies, Inc., a

consulting firm that provided environmental

technical and regulatory assistance to manufacturing

companies. He has held positions with the New

York State Department of Environmental

Conservation, NiSource, Inc. and Bethlehem Steel

Corporation. Easterly earned his bachelor's and

master's degrees from Rensselaer Polytechnic

Institute (RPI). Governor Pence has also announced

that Mary Davidson will stay on as the Chief

Environmental law Judge of the Indiana Office of

Environmental Adjudication.



B I N G H A M G R E E N E B A U M D O L L

E N V I R O N M E N T A L A N D

N A T U R A L R E S O U R C E S G R O U P

M E M B E R S

Carolyn M. Brown●Chair●Lexington Office

●859/288-4614●[email protected]

Kelly D. Bartley●Lexington Office


Kate E. Beatty●Indianapolis Office


Jack C. Bender●Lexington Office


Andy Bowman●Indianapolis Office


Kimberly H. Bryant●Lexington Office


Jennifer J. Cave●Lexington Office


Bruce E. Cryder●Lexington Office


Martin J. Cunningham●Lexington Office


Bradley E. Dillon●Louisville Office


Larry Kane●Indianapolis Office


R. Clay Larkin●Lexington Office


Jay R.S. Parks●Indianapolis Office

●317/968-5410 ●[email protected]

Jesse M. Parrish●Lexington Office


Robin B. Thomerson●Lexington Office


Jennifer Kahney Thompson●Indianapolis Office
