Prior to the election, the Environmental Protection Agency drafted a number of regulations that could change the regulatory landscape for counties. Among these are several air and water quality regulations. Following are select highlights of the pending regulations.
Particulate Matter (PM) Standards
On June 29, the EPA proposed revising the PM-2.5 standard from 15 micrograms per cubic meter to 12 – 13 micrograms per cubic meter. However, EPA also announced it would not change air quality standards for PM-10.
EPA designates two types of regulated PM — inhalable coarse particles (aka PM-10) and fine particles (PM-2.5). PM-10 particles are larger than 2.5 micrometers but smaller than 10 micrometers in diameter. They can be found near roadways (paved and unpaved) and construction sites.
PM-2.5 particles are 2.5 micrometers or smaller in diameter. They can be found in smoke and haze from forest fires, automobiles, power plants and certain industries. Particles larger than 10 micrometers are not regulated.
NACo was especially concerned about tighter regulation of particulate matter standards because regulating PM-10 would include farm dust. Coarse dust particles are smaller than a human hair and typically come from crushing or grinding operations or dust from paved and unpaved roads. NACo supports EPA’s decision because increased regulation would have been burdensome to many counties, especially those in rural areas.
EPA states that PM particles, especially those smaller than 10 micrometers, can cause health problems. Many studies have linked particle pollution to premature death, nonfatal heart attacks, irregular heartbeat, asthma and decreased lung function.
NACo and its members expressed concerns to EPA and Congress over the past several years about the potential for increased regulation to negatively affect regular activities such as cars driving down dirt roads and agricultural practices that sustain local economies. Even natural events such as wildfires or wind storms can contribute to PM levels.
On Dec. 4, EPA sent the final rule to the White House’s Office of Management and Budget (OMB) for a final rule. While EPA was expected to finalize the standards by Dec. 14, an OMB review can take up to 90 days.
On Dec. 2, 2011, the EPA proposed reconsidering emissions standards for new boilers and commercial and industrial solid waste incinerators, and submitted the final rule to the OMB on May 17, 2012. While OMB’s review process generally is capped at 90 days, reviews can take longer. The rule is still pending.
The Boiler Maximum Achievable Control Technology (MACT) rule, as originally proposed in early 2011, set up a tight timetable to reduce emissions such as mercury, particulate matter and carbon monoxide (CO) from boilers. The boiler rule had a significant impact on local governments that use boilers or process heaters to produce electricity or heat. It would affect boilers used in county buildings that use natural gas, fuel oil, coal or biomass.
However, under the reconsideration, EPA has said a majority of boilers would not fall under the rules. Nearly 98 percent of area-source boilers would rely on routine maintenance and tune-ups, while two percent of those would need to meet emissions limits. On major source boilers, 88 percent would require periodic tune-ups and 12 percent would be required to meet emission standards.
On Jan. 6, 2010, the EPA proposed to tighten the national ambient air quality standards (NAAQS) for ground-level ozone to change the current primary ozone standard of 75 parts per billion (ppb) to a range of 60 ppb–70 ppb. The EPA estimated the rule will cost $19 billion to $90 billion annually. But in September 2011, after concerns over costs, the president told the EPA to withdraw the rule until 2013. In 2013, the current standard is slated for review per the requirements of the Clean Air Act.
Approximately 650 rural and urban counties would have been considered in non-attainment under the proposed standards. Most of the responsibility for implementing the new standards would fall on state and local governments who are responsible for developing air quality plans and implementing strategies to meet the new federally set goals.
Additionally, when an area is classified as in “non-attainment,” EPA imposes a number of restrictions that impact economic development.
Ozone, a key component of smog, is blamed for increased health care costs for bronchitis, acute asthma, hospital and emergency room visits, nonfatal heart attacks and premature deaths. Ozone is primarily created through emissions from cars, power plants, industrial facilities and electric utilities. Since both sunlight and hot weather precipitate its formation, ozone is primarily a summer pollutant. Both urban and rural areas can have high levels of ozone due to airborne transport of pollutants from hundreds of miles away.
The EPA is working on crafting an updated version of its existing stormwater rule by June 2013 with final action by December 2014. This rule is tied to a settlement agreement with the Chesapeake Bay Foundation on pollution in the Chesapeake Bay. The proposed rule may impact all Phase I, Phase II and non-regulated Municipal Separate Storm Sewer Systems (MS4).
Currently, medium and large local governments with populations of more than 100,000 hold MS4 permits, as do small MS4s in urbanized areas. Under the most recent proposal, performance standards for discharges from new development and redeveloped sites will be established.
For new and redevelopment sites, which include residential, commercial, industrial and institutional, EPA is considering a retention-based standard that takes into account regional conditions. EPA says the standard could be applied strictly to development sites nationwide (outside of existing MS4s) or only those sites that discharge to an MS4.
If the EPA goes with the first option, the permit requirements rest with the developer during construction. After construction, the property would be required to maintain the standards as laid out under the permit.
Construction enforcement rests with the permit authority, which is generally the EPA or the state. However, since some states have transferred oversight authority to local governments, this may mean additional responsibilities for local authorities.
Additionally, EPA is considering other options: extend the oversight of the current MS4 program; require large regulated local governments to manage discharges from existing sites, and designated government-owned maintenance yards as industrial sources.
Waters of the U.S.
On Feb. 21, EPA and the Army Corp of Engineers sent the final “waters of the U.S.” guidance to the OMB for review. The guidance has yet to be finalized.
The waters of the U.S. guidance stems from an April 21, 2011, proposal to expand federal jurisdiction over U.S. waters by modifying the existing waters of the U.S. definition in the Clean Water Act (CWA).
This guidance has implications for counties with public infrastructure such as roads, ditches, flood control channels and culverts. It also has implications for other Clean Water Act (CWA) programs beyond the Section 404 permit program, the dredge and fill permit program, to programs such as the National Pollution Discharge Elimination System (NPDES), Total Maximum Daily Load (TMDL), state water quality standards and constructed wetlands.
In response to the draft guidance, NACo submitted a letter requesting the EPA and Army Corp of Engineers withdraw the Draft Guidance and instead move forward through a formalized rule-making process.
NACo also requested a more detailed analysis on how the proposed changes will impact all CWA programs, beyond Section 404, for federal, state and local governments, and private parties, as well as an analysis of the time needed and associated costs.
Stormwater Runoff from Logging Roads
On Nov. 30, the EPA released its final rule on Revisions to Stormwater Regulations to clarify that a NPDES permit is not required for Stormwater Discharges from Logging Roads.
For the purpose of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities considered “industrial” are rock crushing, gravel washing, log sorting and log storage. The EPA goes on to say that “immediate access roads” that are used exclusively or are primarily dedicated to the above activities are regulated. However, “immediate access roads” do not include public access roads that are federal, state or county management roads.
This rule is in response to Decker v. Northwest Environmental Defense Center (NEDC), which is currently being considered in the U.S. Supreme Court for stormwater runoff from logging roads. In the final rule, the EPA clarifies that logging roads do not require stormwater permits and essentially overturns the 9th Circuit decision in Decker.
It is likely this rule will be challenged in court over whether the EPA has the authority under the Clean Water Act to exempt stormwater runoff from logging roads as an industrial activity.