Regional Reports: Region 10
State Implementation Plan and Federal Implementation Plan Updates
On June 25, 2018, the Environmental Protection Agency (EPA) published a final rule approving a state implementation plan (SIP) submission from the State of Alaska regarding the “good neighbor” provisions of the Clean Air Act (CAA) with respect to interstate transport of NO2 and SO2 emissions. See 83 Fed. Reg. 29,449 (June 25, 2018). EPA’s rule found that sources and emissions activity in Alaska do not contribute significantly to nonattainment for, or interfere with, the maintenance of the NO2 and SO2 National Ambient Air Quality Standards (NAAQS) in any other state. EPA previously explained its rationale for this finding in a proposed rule published on April 23, 2018. See 83 Fed. Reg. 17,627 (Apr. 23, 2018).
On May 2, 2018, EPA published a proposed rule that would approve an Alaska SIP submission related to the CAA’s “good neighbor” provisions with respect to PM2.5. See 83 Fed. Reg. 19,191 (May 2, 2018). This proposed rule would determine that Alaska’s infrastructure SIP for the 2012 annual NAAQS for fine particulate matter (PM2.5) is sufficient to meet the interstate transport requirements of the CAA.
On April 12, 2018, EPA published a final rule approving a revision to the Alaska SIP for regional haze. See 83 Fed. Reg. 15,746 (Apr. 12, 2018). The final rule approves both a regional haze progress report and a negative declaration submitted by the State of Alaska in 2016, meaning that no further revision of the state’s regional haze SIP will be required for the time being.
State Regulations (Proposed/Adopted)
In June, a diverse group of stakeholders in Fairbanks began a series of monthly meetings to address persistent particulate matter pollution in the Fairbanks North Star Borough (FNSB). The stakeholder group is expected to produce pollution reduction recommendations for local political leaders and the Alaska Department of Environmental Conservation (ADEC). A portion of the FNSB has been a nonattainment area (NAA) for PM2.5 since 2009, and, in 2017, EPA reclassified the FNSB NAA from a moderate NAA to a serious NAA. See 82 Fed. Reg. 21,711 (May 10, 2017). The State of Alaska and ADEC must demonstrate compliance with federal standards for PM2.5 in the FNSB by the end of 2019.
By some accounts, air quality in the FNSB is worse than anywhere else in the United States. In May 2018, EPA awarded $4 million in Targeted Airshed Grants to ADEC for the purpose of addressing air quality in the FNSB. That is in addition to $2.5 million in similar EPA grants awarded to ADEC in 2017 for the same purpose.
Carbon Emissions Reduction Efforts and Lawsuits
In April 2018, the Third Judicial District Superior Court in Anchorage heard oral argument on the State of Alaska’s motion to dismiss a climate change lawsuit filed by 16 youth plaintiffs in October 2017. The case, Sinnok v. Alaska, Case No. 3AN-17-09910 CI, alleges that state policies have violated the youth plaintiffs’ constitutional rights by contributing to, and failing to mitigate, global climate change. As in similar cases throughout the United States, including in Oregon and Washington, the youth plaintiffs in Sinnok are represented by Our Children’s Trust. The Sinnok plaintiffs previously filed a petition for rulemaking with ADEC, asking the state agency to reduce and inventory greenhouse gas emissions in Alaska, and to develop a climate action plan. ADEC denied the petition in September 2017. A decision on the state’s motion to dismiss the Sinnok complaint is pending at the time of this writing.
State Implementation Plan and Federal Implementation Plan Updates
On June 19, 2018, EPA published a final rule approving a revision to the Idaho SIP with respect to crop residue burning. See 83 Fed. Reg. 28,382 (June 19, 2018). The rule, slated to become effective on July 19, 2018, approved the State of Idaho’s February 2018 change to Idaho Administrative Procedure Act section 58.01.01.621.01 and Idaho Code 39–114. The state had sought EPA approval of these SIP revisions in September 2017, and EPA originally proposed to approve the changes in January 2018. See 83 Fed. Reg. 2955 (Jan. 22, 2018).
This approved SIP revision authorizes Idaho regulators to permit crop residue burning so long as ambient ozone concentrations on the burn date do not exceed 90 percent of the ozone NAAQS. Prior to this revision, crop residue burning could not be permitted if ambient ozone concentrations exceeded 75 percent of the ozone NAAQS. Idaho determined that an increase in the maximum allowable ambient ozone concentration on crop residue burning days would allow for the choice of burn dates with better atmospheric conditions for purposes of smoke management—that is, dates on which crop residue smoke would be more likely to disperse.
On May 11, 2018, EPA published a proposed rule that would:
- Approve a limited maintenance plan (LMP) for the Pinehurst PM10 NAA and Pinehurst PM10 expansion NAA.
- Redesignate the Pinehurst PM10 NAAs as attainment areas.
- Approve the exclusion of relevant PM10 data collected during a high wind event in 2013.
See 83 Fed. Reg. 21,976 (May 11, 2018). Idaho submitted a redesignation request and LMP for the Pinehurst PM10 NAAs in September 2017. In proposing to approve those submissions on May 11, EPA also proposed to approve the base year emission inventory for Idaho’s West Silver Valley PM2.5 NAA in the Silver Valley. Idaho submitted a redesignation request for the Pinehurst PM10 NAAs in September 2017.
On June 6, 2018, Idaho’s Department of Environmental Quality (IDEQ) published a Notice of Negotiated Rulemaking that would allow crop residue burning fees to be paid after the burn date rather than before. See IDEQ Docket No. 58- 0101-1803. The proposed schedule for this state rulemaking would allow the implementation of the rule prior to the spring 2019 burning season.
State Implementation Plan and Federal Implementation Plan Updates
On February 8, 2018, EPA issued a finding of attainment and a clean data determination for the Oakridge-Westfir (Oakridge), Oregon PM2.5 (Oakridge NAA). EPA’s notice specified that:
- The Oakridge area had demonstrated attainment of the 2006 24-hour PM2.5 NAAQS by the December 31, 2016, attainment date as demonstrated by quality-assured and quality-controlled 2014–2016 ambient air monitoring data.
- The Oakridge attainment plan met the requirements of section 110(k) of the CAA.
The designation status of the Oakridge area will remain nonattainment for the 2006 PM2.5 NAAQS until such time as EPA determines that the area meets the CAA requirements for redesignation to attainment under CAA section 107(d)(3)(E). This final rule became effective on March 12, 2018. See 83 Fed. Reg. 5537 (Feb. 8, 2018).
On May 17, 2018, EPA issued a notice approving a revision to the Oregon regional haze SIP, dated July 18, 2017. Specifically, EPA approved the Oregon Regional Haze Progress Report as meeting the applicable requirements of the CAA and the federal Regional Haze Rule, as set forth in 40 C.F.R. 51.308(g). EPA determined that the existing regional haze SIP is adequate to meet the state’s visibility goals and requires no substantive revision at this time, as set forth in 40 C.F.R. 51.308(h). Additional information is provided in the Oregon Regional Haze Progress Report, including a summary of the emissions reductions achieved throughout the state through implementation of the control measures relied upon to achieve reasonable progress. Specifically, Oregon identified emissions reductions achieved through controls on Oregon best available retrofit technology-eligible sources, including emissions reductions achieved at the PGE Boardman Plant, the PGE Beaver Plant, the Georgia Pacific Wauna Mill, and International Paper Mill. According to the report, implementation of control measures caused significant reductions in SO2 emissions at all four facilities, as well as reductions in NOx and coarse particulate matter (PM10) emissions at all facilities except the Georgia Pacific Wauna Mill. The progress report also detailed emissions reductions achieved as part of the smoke management program. In particular, the progress report highlights alternatives to burning such as biomass removal, chipping, and other techniques to reduce fire hazard, offsetting up to 13,500 tons of PM2.5 estimated in 2015 compared to burning. This final rule is effective on June 18, 2018. See 83 Fed. Reg. 22,853 (May 17, 2018).
On May 24, 2018, EPA issued a final rule approving Oregon’s December 27, 2013, and October 20, 2015 SIP submissions as meeting specific infrastructure requirements of the CAA. Specifically, EPA found that the Oregon SIP met the following CAA section 110(a)(2) infrastructure elements for the 2010 NO2 , 2010 SO2 , and 2012 PM2.5 NAAQS: (A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA approved, and incorporated by reference at 40 C.F.R. part 52, subpart MM, the following rule sections submitted October 20, 2015 (state effective date, Oct. 16, 2015): OAR 340-202-0060 (Suspended PM); and OAR 340-250-0030(22) (NAAQS); and, the following rule section submitted July 18, 2017 (state effective date, July 13, 2017): OAR 340-202- 0090 (Ozone). This final rule is effective on June 25, 2018. See 83 Fed. Reg. 24,034 (May 24, 2018).
State Regulations (Proposed/Adopted)
On April 6, 2016, Governor Brown directed the Oregon Department of Environmental Quality (ODEQ) and the Oregon Health Authority (OHA) to develop a health risk-based air toxics permitting program. According to ODEQ, the goal of the program, known as “Cleaner Air Oregon,” is to “evaluate potential health risks to people near commercial and industrial facilities that emit regulated air toxics, and ultimately reduce those risks below health-based standards. Affected facilities could include some that are not currently permitted for their air contaminant emissions, in addition to those that already have air quality permits.” ODEQ and OHA published a proposed rule in 2017, which came under criticism from the regulated community and stakeholders. The fees required to implement the Cleaner Air Oregon program were subject to approval by the Oregon legislature.
Cleaner Air Oregon
Senate Bill (S.B.) 1541 authorized fees for the implementation of the Cleaner Air Oregon program, subject to ODEQ and OHA making key changes to reduce the stringency and cost of the proposed rules designed to implement the Cleaner Air Oregon program. Requirements of S.B. 1541 include:
- Risk Action Levels (RALs): For existing facilities, the cancer RAL increases from 25 in 1 million to 50 in 1 million, and the non-cancer RAL increases from a hazard index of 1 to 5.
- Toxics Best Available Control Technology (TBACT): In general, if a facility is subject to Maximum Achievable Control Technology (MACT) under a major source National Emission Standard for Hazardous Air Pollutants (NESHAP), then the source is considered to meet TBACT. If a source is not employing MACT under a NESHAP, the TBACT determination will be on a case-by-case basis.
- Pilot Project: S.B. 1541 allows ODEQ to adopt future regulations for one pilot project to address multi-source risk in one area. The area must be less than ~ 5 square miles and located in the Portland metro area. If the multi-source area risk is above 100/million cancer risk or Hazard Index of 10, additional steps are needed if facilities contributing to the risk want to make changes that increase risk. ODEQ may require facilities to send a plan to reduce air pollutants (i.e., from its facility, other facilities, or mobile sources in the area), or pay into a Clean Communities Fund.
In the coming months, ODEQ and OHA will publish revised rules that reflect S.B. 1541. The agencies expect the proposed rules will be finalized by late 2018.
On May 15, 2018, ODEQ released for public comment proposed changes to OAR 340, division number 248, that would evaluate and clarify regulations and standards for asbestos-related activities, where a potential for exposure to asbestos fibers exists. Public comments on the proposal were due by June 22, 2018. The proposed changes are significant and include:
- Residential Renovation Survey: Renovation activities at residential buildings with four or fewer dwelling units would be required to have an asbestos survey.
- Moving Nonfriable Disposal Requirements into the Friable Disposal Requirements Section: Removing Nonfriable Asbestos Disposal Requirements section 340-248- 0290 and adding nonfriable to the Friable Asbestos Disposal Requirements section 340-248-0280. This change will result in requiring nonfriable asbestos waste to be packaged, labeled, transported, and disposed of similarly to how friable asbestos waste is currently managed. Currently, nonfriable waste does not need to be packaged and could be disturbed through transport and disposal, making the nonfriable to become friable. This proposed change would make costs to dispose of nonfriable asbestos-containing waste material similar to the costs of disposing friable asbestos-containing waste material.
- Accredited Laboratories for Asbestos Testing: Laboratories that analyze samples for the presence of asbestos would need to demonstrate proficiency within two years of rule adoption through participation in a nationally recognized testing program or an equivalent testing program.
Changes to Ambient Benchmark Concentrations
On May 11, 2018, Oregon’s Environmental Quality Commission adopted amended rules that contain revisions to 23 standing Ambient Benchmark Concentrations, and new benchmarks for phosgene, n-propyl bromide, and styrene. The benchmarks will function within Oregon’s existing air toxics program as goal reference values. Three separate actions could be triggered under the Toxics Program if monitoring data show ambient air toxics concentration to be above a benchmark. These include:
- The development of emission reduction strategies for specific emission source categories (like diesel engines or woodstoves).
- Evaluation of a major industrial facility under the “Safety-Net” program.
- Community planning work in select geographic areas.
Key changes to the Ambient Benchmark Concentrations from the 2010 benchmarks are as follows:
- Chlorine: twice as stringent.
- Formaldehyde: approximately 10 times more stringent.
- Hexane: 10 times more stringent.
- Hydrogen Fluoride: slightly more stringent.
- Nickel (soluble compounds): Five times more stringent.
- Tetrachloroethylene: approximately 10 times more stringent.
- Trichloroethylene: approximately twice as stringent.
Carbon Emissions Reduction Efforts and Lawsuits
The Oregon legislature failed to pass a bill that would have established a statewide greenhouse gas (GHG) cap-and-trade system during a short 2018 legislative session. The proposed legislation sought to cap GHG emissions and auction emission allowances to covered entities. Oregon’s system would have taken effect in 2021. It was designed to establish an annually declining cap, with a goal of reducing GHG emissions to levels 80 percent below 1990 levels by 2050. Entities whose emissions exceeded 25,000 tons per year would be covered. The proposed legislation also included a framework for Oregon to participate in a broader regional trading market—the Western Climate Initiate—with California, Quebec, and Ontario. Despite the failure to pass legislation, Oregon House and Senate members have convened a Joint Committee on Carbon Reduction and Governor Brown has created a Carbon Policy Office in order to continue to work on and revisit the legislation in 2019.
A key issue for lawmakers to address in 2019 is reconciling a proposed cap-and-trade approach with existing GHG reduction policies, including Oregon’s Clean Electricity and Coal Transition Act—or Senate Bill (S.B.) 1547. S.B. 1547 requires the state’s investor-owned electric utilities to provide their Oregon retail customers with electricity that is coal-free by 2030 and to completely phase out reliance on coal-fired power by 2035.
On March 7, 2018, the U.S. Court of Appeals for the Ninth Circuit denied the United States’ request to issue a writ of mandamus and suspend the district court proceedings in Juliana et al. v. United States et al., No. 17-71692 (9th Cir. Mar. 7, 2018). In Juliana, a group of child plaintiffs filed a civil rights lawsuit in the U.S. District Court for the District of Oregon seeking an order that requires the government to create a plan to dramatically reduce greenhouse gas emissions released by the burning of fossil fuels. The plaintiffs allege the government has violated their constitutional rights by not acting to reduce greenhouse gas emissions. The district court previously denied the government’s motion to dismiss the lawsuit. Juliana et al. v. United States et al., No. 15-cv1517, 2016 WL 6661146 (D. Or. Nov. 10, 2016). In its petition for a writ of mandamus, the United States argued that allowing the case to proceed would result in burdensome discovery obligations on the federal government that will threaten the separation of powers. The Ninth Circuit found the government had not met the criteria for extraordinary mandamus relief at the still early phase of litigation. “The issues that the defendants raise on mandamus are better addressed through the ordinary course of litigation.” In re Juliana, 884 F.3d 830, 834 (9th Cir. 2018) (citations omitted). The court noted that “litigation burdens are part of our legal system, and the defendants still have the usual remedies before the district court for nonmeritorious litigation, for example, seeking summary judgment on the claims.” Id. at 836.
On April 28, 2018, ODEQ submitted comments regarding EPA’s proposal to repeal the Clean Power Plan (CPP). See EPA-HQ-OAR-2017-0355-20993. In its comment letter, ODEQ stated that it strongly opposes the proposed repeal. Specifically, ODEQ objected to EPA’s changes to its:
- Approach to calculating the social cost of carbon.
- Assumptions regarding the health benefits of PM2.5 reductions.
- Assessment of environmental justice impacts related to the CPP.
- Consideration of the co-benefits of regulation in its cost-benefit analysis.
ODEQ stated further that “EPA’s changes do not have a basis in the peer-reviewed scientific literature and ignore the direct health and environmental impacts of exposure to pollution from power plants that have been studied and documented by scientists and public health practitioners for decades, including EPA’s own scientists in its Integrated Science Assessment for Particulate Matter.” See ODEQ Letter to EPA on page 6 in EPA-HQ-OAR-2017-0355-20993.
State Implementation Plan and Federal Implementation Plan Updates
On January 9, 2018, EPA finalized a rule establishing initial air quality designations for certain areas for the 2010 SO2 primary NAAQS. See 83 Fed. Reg. 1098 (Jan. 9, 2018). In Washington, Lewis, and Thurston Counties were designated as unclassifiable. Chelan, Douglas, and Whatcom Counties will be designated by December 31, 2020. The other counties in the state were designated as unclassifiable/attainment. See 83 Fed. Reg. 1098, 1167.
On May 31, 2018, EPA proposed to approve the Regional Haze 5-Year Progress Report submitted by Washington, as well as a negative declaration that further revisions to the state’s regional haze implementation plan are not required at this time, finding that the state’s long-term strategy for achieving reasonable progress goals for Class 1 areas for 2018 was adequate. See 83 Fed. Reg. 24,954 (May 31, 2018). Both were submitted pursuant to the federal Regional Haze Rule. Id. Washington submitted the progress report on November 6, 2017. Id. at 24,955. In addition to existing emissions control measures, Washington’s efforts to implement its regional haze plan was focused largely on the installation of Best Available Retrofit Technology at sources with the potential to contribute to regional haze impairments. Id. at 24,956.
State Regulations (Proposed/Adopted)
Washington adopted the Clean Air Rule to regulate GHG emissions from various stationary sources and associated with petroleum importers and natural gas producers in September 2016. However, as discussed below, on December 15, 2017, a judge in Thurston County Superior Court issued a bench ruling striking down the parts of the Clean Air Rule. On March 14, 2018, the judge affirmed that the entire regulation should be vacated. See Ass’n of Wash. Bus. v. Wash. Dep’t of Ecology, No. 16- 2-03966-34, Order Denying Ecology’s Request to Sever (Mar. 14, 2018). On April 27, 2018, the court entered an order invalidating the regulation. See No. 16-2-03966-34, Order Granting Petition for Judicial Review (Apr. 27, 2018). The Washington State Department of Ecology (Ecology) and environmental groups that intervened to defend the rule have sought a direct appeal to the Washington Supreme Court. Pending resolution of the legal challenge to the Clean Air Rule, Ecology has suspended compliance with the rule. On April 17, 2018, Ecology Director Maia Bellon submitted joint comments with several other state environmental and energy agency leaders opposing EPA’s proposed repeal of the Clean Power Plan.
On February 21, 2018, Ecology adopted amendments to chapter 173-407 WAC— Greenhouse Gas Mitigation Requirements and Performance Standard for Power Plants (formerly named Carbon Dioxide Mitigation Program, Greenhouse Gases Emissions Performance Standard and Sequestration Plans and Programs for Thermal Electric Generating Facilities). The amendments became effective on March 24, 2018. The amendments require power plants to reduce CO2 emissions, meet a revised GHG performance standard, and develop programs to reduce GHGs, as approved by Ecology. See Rulemaking Order, WSR 18-05-091 (Feb. 21, 2018). The CO2 emission mitigation requirements apply to “all new and certain modified fossil-fueled thermal electric generating facilities” with a capacity of more than 25 MWs of electricity. WAC 173-407-010(1). The revised GHG performance standards are triggered by a variety of events, including, but not limited to, commencement of operation, facility upgrades, ownership changes, and long-term financial commitments. WAC 173-407-120.
In February 2017, Ecology also announced its intent to commence rulemaking related to fees for air emissions sources. The proposed rule was supposed to be released in August 2017. Several preproposal drafts of amendments to chapter 173- 400 WAC—General Regulations for Air Pollution Sources and chapter 173-455—Air Quality Fee Rule have been released for public comment, and related stakeholder meetings have been held. On April 18, 2018, Ecology withdrew the original notice of rulemaking and then immediately refiled a new Preproposal Statement of Inquiry for the rulemaking, stating that “we realized we were changing the structure of the registration program without clearly identifying this as a purpose in our original notice of rulemaking.” As of this writing, no proposed amendments had been released.
In June 2015, Ecology announced a plan to revise state regulations concerning emissions standards during start-up, shutdown, and malfunction (SSM) events in response to an EPA SIP Call. This rulemaking process was revised in December 2016 after EPA clarified that the emissions standards for SSM events should also apply in the Title V permit program. The package of rule amendments will address air regulatory issues beyond applicable emissions standards during SSM events, including public notices for air permits, the federal definition of "volatile organic compound," and non-road engines. Ecology released the proposed amendments on February 5, 2018, triggering a public comment period that closed on March 20, 2018. Ecology announced plans at a March 13 public hearing that it would likely adopt the rule in mid-May, with an effective date of in mid-June. As of this writing, the final rules have not been adopted.
Following November 2017 elections, the Democratic Party gained the majority in the State Senate. Observers anticipated that this development would result in quick action on climate change. However, in the 2018 legislative session, which ended on March 8, 2018, no GHG reduction laws were passed.
During the short session, the state legislature considered a number of air quality-related bills. A couple passed and were signed into law by the governor:
- S.B. 6207 (Chapter 148, Laws of 2018): A law clarifying that tax revenue can be used by ports to fund programs and activities to reduce air emissions from vehicles used for cargo transport in connection with port facilities and for cargo vessels at port facilities.
- S.S.B. 6055 (Chapter 147, Laws of 2018): A law allowing authorizing various regulatory agencies to issue permits to cities and towns “partially within a quarantine area for apple maggot” for limited burning of “brush and yard waste” to control the spread of apple maggots.
Other potentially significant bills were introduced or considered related to climate change and/or regulation of GHG emissions:
- S.B. 6104: This bill was introduced in January 2018. It would require Ecology to defend against federal censorship of climate change data. It was given a hearing on January 24, 2018, in the Senate committee on energy, environment, and technology.
- H.B. 1144: This bill was first introduced in January 2017. It would set additional GHG reduction goals for the state for 2025, 2035, and 2050. The bill passed the house in January 2018. After passing a couple of Senate committees, the bill was returned to the house rules committee on March 8, 2018.
- S.B. 5172: This bill was first introduced in January 2017. It would repeal requirements for Ecology to consult with the climate impacts group at the University of Washington regarding the science on human-caused climate change and to report to the legislature with recommendations on whether revisions to state GHG emission goals should take place. The bill was reintroduced in January 2018 and remains in committee.
- S.B. 6203: The bill was introduced in January 2018. It would impose a tax that increases annually on the sale or use of fossil fuels in the state and on the generation and importation of electricity generated through the combustion of fossil fuels; it would direct revenue from the tax to an “energy transformation account,” a “water and natural resource resilience account,” a “transition assistance account,” and a “rural economic development account”; and it also would establish a clean energy investment fund for utilities that could generate credits that would reduce carbon tax obligations.
- S.B. 6096: The bill was introduced in January 2018. It would also impose a tax on fossil fuel sale and use and generation or importation of electricity derived from fossil fuels.
- H.B. 2412: The bill was introduced in January 2018. It would require limits on the global warming potential of certain materials used for certain capital projects funded by the state and declarations by winning contractors regarding the global warming potential of materials used. It would also require assistance from the University of Washington in understanding how to analyze the global warming potential of certain building materials.
- H.B. 2225: This bill was first introduced in January 2017. It would align state GHG reduction goals with the goals set out in the Paris Climate Agreement. It was reintroduced on January 8, 2018.
On March 2, 2018, a coalition of interest groups filed an initiative (No. 1631) called the “Protect Washington Act,” which would set a fee on carbon emissions. The initiative’s supporters are in the process of gathering enough signatures for the initiative to be placed on this year’s ballot for the general election. According to recent news coverage, supporters were on track to exceed roughly 260,000 signatures by the end of June. K. Yoder, Land of the Fee? GRIST (June 6, 2018).
On October 27, 2017, the Pollution Control Hearings Board (PCHB) denied summary judgment motions in Marine Vacuum Services, Inc. v. Puget Sound Clean Air Agency, PCHB No. 16-130c (Oct. 27, 2017 Order on Mots.). On February 8, 2018, the PCHB issued a final order in the appeal (Feb. 8, 2018 Findings of Fact, Conclusions of Law, and Order). In upholding the Puget Sound Clean Air Agency’s (PSCAA’s) decision to issue Notices of Violation (NOVs) to Marine Vacuum, a business that provides “waste remediation and disposal facilities,” for failure to obtain a construction permit and then to assess penalties for failure to comply with the NOVs, the PCHB, among other things found that PSCAA’s odor control regulations were not preempted by federal law; refused to rule on what the PCHB considered a “facial” procedural due process challenge regarding the lack of notice provisions in PSCAA regulations; found that PSCAA provided sufficient notice of violations, consistent with applicable regulations, to satisfy “as-applied” due process requirements; and found that Marine Vacuum was required to submit an application for a new source construction permit, even though Marine Vacuum had been in business since 1980, because the permit requirement was construed as a continuing obligation.
The PCHB has continued to process civil penalty appeals arising out of odor complaints targeting commercial cannabis facilities. On March 20, 2018, the PCHB upheld penalties assessed against a marijuana operation, Green Freedom, LLC, by the Olympic Region Clean Air Agency in connection with odors emanating from the facility. Green Freedom, LLC v. Olympic Region Clean Air Agency, PCHB No. 17-028c (Mar. 20, 2018 Findings of Fact, Conclusions of Law, and Order). In upholding the penalties, the PCHB determined that the operation did not qualify for an exemption from the state Clean Air Act for “agricultural activity consistent with good agricultural practices on agricultural land.” Id.; see also RCW 70.94.640(1), (5). The state statute defines agricultural land as “at least five acres of land devoted primarily to the commercial production of . . . agricultural commodities.” Id. Although the operation leased a 7.5-acre parcel, the PCHB concluded, after a site visit and presentation of evidence, that Green Freedom, LLC, was not utilizing at least 5 acres of the parcel “in the production or processing of marijuana.” PCHB No. 17-028c (Mar. 20, 2018 Findings of Fact, Conclusions of Law, and Order).
On March 16, 2018, in Evergreen Shingle Recycling LLC v. Puget Sound Clean Air Agency, PCHB No. 17-097 (Mar. 16, 2018 Order Granting Summ. J. & Dismissing Appeal), the PCHB dismissed an appeal by Evergreen Shingle Recycling, LLC (Evergreen), of a penalty assessed by PSCAA, because PSCAA was not served by Evergreen with a notice of appeal of the penalty. “The Board strictly construes deadlines for filing and serving appeals.” Id.
On March 27, 2018, the PCHB issued a summary judgment decision on a range of issues in connection with an appeal by the National Parks Conservation Association (NPCA) of a Prevention of Significant Deterioration permit issued to BP West Coast Products, LLC (BP). National Parks Conservation Assoc. v. State of Washington, PCHB No. 17-055 (Mar. 27, 2018 Order on Summ. J.). BP sought the PSD permit to authorize several modifications at its refinery, including replacement of two coker heaters and installation of a lean oil absorption system with a compressor in the coker off-gas system. Id. Under the permit, BP is required to apply Best Available Control Technology (BACT) to the modified emissions units. NPCA alleged several procedural and substantive deficiencies with the permit, including, among other items, the failure to properly assess the “adverse impact on Air Quality Related Values . . . at national parks” and the failure to properly establish emission control limits consistent with BACT for nitrogen oxide emissions and sulfur dioxide emissions. The PCHB concluded that several of the issues briefed for summary judgment, including the analysis of air quality impacts and application of BACT to the modified emission units, were “highly complex technical issues” that warranted “further testimony and evidence in the context of a hearing.” Id. However, the PCHB agreed that the Technical Support Document (TSD) for the permit satisfied public notice requirements for Ecology’s decision regarding the air quality impacts analysis in the Technical Support Document for the permit. Id. The PCHB also agreed that the NPCA did not have the standing to challenge Ecology’s notice on behalf of any federal agencies that provided comments on the permit application and TSD. Id.
Subsequently, on April 20, 2018, BP received a favorable ruling on a motion in limine to exclude testimony proffered by NPCA’s expert regarding gas-phase Merox controls for sulfur dioxide PCHB No. 17-055 (Apr. 20, 2018 Order on Mot. in Limine).
On May 3, 2018, the PCHB upheld a penalty assessed by the Spokane Regional Clean Air Agency (SRCAA) against an individual for failing to conduct an asbestos survey, as required by SRCAA Regulation I, article IX, section 9.03, before renovating a home. Rizkalla v. Spokane Regional Clean Air Agency, PCBH No. 17-107 (May 3, 2018, Order Granting Mot. for Summ. J.). When the SRCAA inspector sampled construction debris from the project, the results indicated that asbestos was not present. Id. The PCHB also upheld the reasonableness of the penalty, which was set at $2000. Id. On June 1, 2018, the PCHB denied a request for consideration. PCHB No. 17- 107 (June 1, 2018, Am. Order Den. PCHB).
Case Decisions, Law Suits
On December 15, 2017, a judge in Thurston County Superior Court issued a bench ruling striking down the parts of the Clean Air Rule that would have regulated GHG emissions associated with natural gas distributors and petroleum importers, or “indirect emitters.” See Association of Washington Business v. Department of Ecology, No. 16-2-03023-34, Verbatim Report of Proceedings at 102:10 (Dec. 15, 2017). At Ecology’s request, the court agreed to consider briefing on whether the severability clause at WAC 173-442-370 would allow the portions of the rule that apply to stationary sources to survive. The court ultimately determined that the entire rule should be vacated. Order Den. Dep’t of Ecology’s Req. to Sever (Mar. 14, 2018). On April 27, 2018, the court entered an order granting the petition for review and vacating the Clean Air Rule. Order Granting Pet. for Rev. (Apr. 27, 2018). In May 2018, Ecology and environmental groups that intervened to defend the rule filed notices of appeal to the state supreme court, seeking direct review of the superior court’s decision. Resp’t Notice of Appeal (May 11, 2018); Respondent-Intervenors Notice of Appeal (May 17, 2018). In June 2018, the parties to the Clean Air Rule litigation in the state-court system filed briefing in the parallel federal court proceeding in the Eastern District for the U.S. District Court of Washington in connection with a disagreement over whether the stay in the federal case should remain in place. Avista Corp. v. Bellon, No. 2:16-cv-00335-TOR (E.D. Wash.) (June 1, 2018, Mot. to Continue to Hold Case in Abeyance); id. (June 15, 2018 Defs.’ Resp. to Pls.’ Mot. to Hold Case in Abeyance). The business and industry challengers have argued that the stay should remain in place until the state court litigation has been fully resolved. Ecology has argued that continuing with the federal case would eliminate lingering uncertainty about the legal status of the regulation based on the federal claims that would exist even if Ecology were to prevail in its appeal of state law issues to the Washington Supreme Court. As of this writing, no decision had been issued in connection with the stay.
On February 16, 2018, a group of youth plaintiffs filed a follow-on lawsuit to the Foster v. Department of Ecology litigation, No. 14-2- 25295-1 (King County Super. Ct.) and 200 Wash. App. 1035, No. 75374-6-1 (Wash. App. Sept. 5, 2017). The Foster litigation was dismissed after a state appeals court found that the trial court had abused its discretion by reversing its initial finding that Ecology had lawfully denied a petition for rulemaking to regulate GHG emissions previously sought by the youth plaintiffs.
The new climate change complaint, captioned as Aji v. the State of Washington, was also filed in King County Superior Court. The complaint alleges that the failure by the state, by the governor, and by a range of state agencies to sufficiently mitigate GHG emissions and the authorization of projects that would increase GHG emissions violate the minor plaintiffs’ state substantive due process rights, including “life, liberty, and property, personal security, reasonable safety, and to a stable climate system that sustains human life and liberty”; the plaintiffs’ constitutionally “reserved” right to “to live in a healthful and pleasant environment”; the state constitution’s equal protection clause, because minor children are more likely to be adversely impacted by climate change; and the Public Trust Doctrine, which includes “the rights of present and future generations to access, use and enjoy those essential resources that are of public importance to the citizens of the state of Washington.” Compl., No. 18-2-04448-1 SEA (King County Super. Ct. filed Feb. 16, 2018). The defendants filed a motion to dismiss on June 4, 2018, arguing that the Uniform Declaratory Judgments Act and the state Administrative Procedure Act did not allow the court to hear the claims. Further, the defendants asserted that the state legislature was a necessary party and that any effort by the court to require the legislature or governor to take certain actions to address climate change would violate the separation of powers doctrine. Last, the defendants disputed the existence of the “fundamental rights” for which the plaintiffs sought recognition and that the alleged constitutional injuries were cognizable. Defs.’ 12(C) Mot. for J. on the Pleadings (filed June 4, 2018). As of this writing, briefing on the motion had not been completed.
Marine Vacuum Services, Inc., filed a petition for review in Thurston County Superior Court of the PCHB’s decisions upholding notices of violation and penalties issued by the Puget Sound Clean Air Agency in connection with Marine Vacuum’s alleged failure to obtain a required construction permit for a new source. Marine Vacuum Services, Inc. v. State of Washington Pollution Control Hearing Board, No. 18-2-01427-34 (Thurston County Super. Ct. filed Mar. 12, 2018) (appealing PCHB No. 16-130c). As of this writing, a briefing schedule for the appeal had not been set.
In June 2018, the Southwest Regional Clean Air Agency fined the TransAlta coal-fired power plant $331,000 for emissions in 2017 that exceeded mercury and nitrogen oxide standards. The fine is substantially higher than fines typically issued by the agency, according to an agency spokesperson. D. Pesanti, "Power Plant Issued $331,000 Fine," The Columbian (June 13, 2018).
©2018. Published in Air Quality Committee Newsletter, Vol. 21, No. 3, August 2018, by the American Bar Association Section of Environment, Energy, and Resources. Reproduced with permission. All rights reserved.