FAA Moves to Insulate Itself from Challenges to Clean Air Act Compliance in Airspace Redesigns

Posted on July 26, 2011 by Barbara E. Lichman, Ph.D., J.D.

The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.

A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
 

Currently, to escape from these requirements, the project proponent must perform a “Conformity Applicability Analysis” to determine if the project’s emissions will fall below the de minimis emissions levels established in Environmental Protection Agency (“EPA”) regulation 93.153(c).

The FAA Reauthorization, if enacted, will allow FAA to avoid all of its Clean Air Act responsibilities, and implement airspace redesign procedures that, even if they meet the state goal of reducing delay and thereby reducing aircraft emissions alone, will also increase airport capacity. Increased capacity, or increased number of operations passing through the airport, will potentially give rise to increased emissions impacts not offset by the initial calculation of emissions savings from delay reduction permitted by the Amendment.

In short, FAA is determined to avoid the same legal hurdle it faced in implementing the massive East Coast Airspace Redesign (which is currently being partially redesigned as ineffective). In a challenge to that action, County of Rockland, New York, et al. v. Federal Aviation Administration, et al., United States Court of Appeals for the District of Columbia Circuit, Case No. 07-1363, numerous public and private entities, including Delaware County, Pennsylvania and the State of Connecticut contested, among other deficiencies, FAA’s total absence of compliance with the Clean Air Act’s conformity provision. The District of Columbia Circuit Court of Appeals confirmed the absence of compliance, but found it to be a “nonprejudicial error,” because FAA had, in the Final EIS, performed an analysis of purported emissions reductions resulting from alleged delay reductions from the project.

FAA does not want to take the chance that another court may view complete failure to comply with Congress’ detailed enactment in the Clean Air Act as nonprejudicial error, and may require, instead, scrupulous compliance. The most effective avenue at this point is to contact your Senatorial representative and ask them to delete the onerous earmark from the House version of the Reauthorization.
 
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EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

Posted on June 8, 2010 by Berne C. Hart
On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA's General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.

SO2 is a highly reactive gas often linked to a number of respiratory system problems. People with asthma, children and the elderly are especially vulnerable to the effects of SO2. The largest sources of SO2 emissions are from fossil fuel combustion at power plants and other industrial facilities. The EPA established standards for SO2 emissions in 1971, and reviewed those standards in 1996, but chose not to revise the standards at that time.

Section 109(a) of the Federal Clean Air Act [CAA] directs the EPA Administrator to promulgate “primary” and “secondary” National Ambient Air Quality Standards [NAAQS] for pollutants for which air quality standards have been issued. One such pollutant is oxides of sulfur, as measured by SO2. Primary standards are aimed at protecting public health. Secondary standards are aimed at protecting public welfare, including the environment. The final rule addresses only SO2 primary standards. The EPA will address SO2 secondary standards as part of a separate review to be completed in 2012.

Under the new rule, allowable SO2 levels will be reduced from the current 140 parts per billion [ppb] averaged over 24 hours to 75 ppb measured hourly. The rule requires that monitors be placed where SO2 emissions impact populated areas, and new monitors must begin operating no later than January 1, 2013. The lower SO2 emissions level is designed to protect against short-term exposures ranging from five minutes to 24 hours because, according to the EPA, the science indicates that short-term exposures are of greatest concern. The EPA estimates that the new standards will prevent from 2,300 to 5,900 premature deaths and 54,000 asthma attacks a year, and reduce health care costs by an estimated $13 billion to $33 billion annually.

The new rule will go into effect 60 days after publication in the Federal Register. States will have until June, 2011 to submit implementation plans to the EPA for approval. The final rule is available at www.epa.gov/air/sulfurdioxide/.
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