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Appendix C Statutory Provisions (42 U.S.C. §§ 7571â7573 and 49 U.S.C. § 44714) The Administrators of the U.S. Environmental Protection Agency (EPA) and the Federal Aviation Administration (FAA) share authority and responsibil- ity regarding emissions from aircraft and the properties of aviation fuels. ENDANGERMENT FINDING Section 231 of the Clean Air Act (CAA) sets forth EPAâs authority to regu- late aircraft emissions of air pollution. Section 231(a)(2)(A) requires EPA to, âfrom time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which, in [the Administratorâs] judgment, causes or contributes to air pol- lution which may reasonably be anticipated to endanger public health or welfareâ (emphasis added). By instructing the Administrator to consider whether emissions of an air pollutant cause or contribute to air pollution, the law does not require the Administrator to find that emissions from any one sector or group of sources are the sole or even a major part of an air pollution problem. Section 231(a) does not contain a modifier such as âsig- nificantâ or âmajorâ on the term âcontributeâ and thus does not appear to set the magnitude of the contribution as a criterion for an affirmative endangerment finding.1 1â EPA. Advance Notice of Proposed Rulemaking on Lead Emissions from Piston-Engine Aircraft Using Leaded Aviation Gasoline; Proposed Rule. 75 Federal Register 22440â22468, April 28, 2010. See https://www.govinfo.gov/content/pkg/FR-2010-04-28/pdf/2010-9603.pdf. 149
150 OPTIONS FOR REDUCING LEAD EMISSIONS FROM PISTON-ENGINE AIRCRAFT In 1976, EPA listed lead under CAA section 108, making it what is called a âcriteria pollutant.â As part of the listing decision, EPA determined that lead was an air pollutant, which, in the Administratorâs judgment, has an adverse effect on public health or welfare. Once lead was listed, under section 109(b) EPA issued primary and secondary National Ambient Air Quality Standards (NAAQS) that the Administrator determined were requisite to protect public health with an adequate margin of safety and to protect public welfare from any known or anticipated adverse effects. EPA issued the first NAAQS for lead in 1978; the lead NAAQS level is now 0.15 μg/m3, measured over a 3-month averaging period.2 According to a 2010 advance notice of proposed rulemaking from EPA,3 EPA has broad authority in exercising its judgment regarding whether emissions from certain sources cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare. EPA has not yet made an âendangerment findingâ with regard to lead emissions from piston-engine general aviation aircraft operations. REGULATORY AUTHORITY FOR EMISSION STANDARDS Section 231 of the CAA sets forth EPAâs authority to regulate aircraft emis- sions of air pollution. As mentioned above, section 231(a)(2)(A) requires EPA to, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines that, in [the Administratorâs] judgment, cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare. In setting or revising standards, section 231(b) provides that EPA shall have them take effect after such period as EPA finds necessary (after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology, considering the cost of compliance within such period. Section 231(c) then states that EPAâs regulations regarding aircraft shall not apply if disapproved by the President, after notice and opportunity for public hearing, on the basis of a finding by Secretary of Transportation that such regulations would create a hazard to aircraft safety. Section 232 of the CAA directs the Secretary of Transportation to is- sue and implement regulations to insure compliance with EPAâs standards, while Section 233 preempts States and local governments from adopting 2â National Ambient Air Quality Standards for Lead. 73 Federal Register 66965, November 12, 2008. 3 EPA. Advance Notice of Proposed Rulemaking on Lead Emissions from Piston-Engine Aircraft Using Leaded Aviation Gasoline; Proposed Rule. 75 Federal Register 22440â22468, April 28, 2010. See https://www.govinfo.gov/content/pkg/FR-2010-04-28/pdf/2010-9603.pdf.
APPENDIX C 151 or enforcing any aircraft emission standards that are not identical to EPAâs standards. In a relatively recent opinion that included a review of this statutory scheme, the U.S. Court of Appeals for the District of Columbia Circuit ruled that âthis delegation of authority is both explicit and extraordinarily broad.â The opinion also noted that âCongress has delegated expansive authority to EPA to enact appropriate regulations applicable to the emis- sions of air pollutants from aircraft engines.â4 Regulatory Authority for Fuel Standards Part A of Title II of the CAA contains sections 216 and 211. Section 216 defines âmotor vehicle,â ânonroad engine,â and ânonroad vehicle.â Sec- tion 211(c) allows EPA to regulate any fuel or fuel additive used in motor vehicles and nonroad vehicles or engines if, in the judgment of the Admin- istrator, any fuel or fuel additive or any emission product of the fuel or fuel product either: (1) causes or contributes to air pollution or water pollution that reasonably may be anticipated to endanger public health or welfare, or (2) will impair to a significant degree the performance of any emission control device or system that is in general use, or that the Administrator finds has been developed to a point where in a reasonable time it will be in general use were such a regulation to be promulgated. This section of the CAA was used to eliminate lead from fuel used in motor vehicles. EPAâs authority to regulate aircraft emissions resides in Part B of Title II of the CAA; the provisions of section 211 and the definitions of section 216 do not apply. Aircraft are not ânonroad vehicles,â and aircraft engines are not ânonroad engines.â EPAâs authority to regulate fuels under section 211 does not extend to fuels used exclusively in aircraft, such as leaded aviation gasoline. Instead, fuels used in aircraft engines are to be regulated by FAA under section 232 of the CAA and 49 U.S.C. § 44714. Under section 232, the Secretary of Transportation is to consult with the Administrator of EPA re- garding implementation of EPA standards and is to modify type certificates as appropriate and necessary. Linking back to these CAA provisions, 49 U.S.C. § 44714 requires that: âthe Administrator of the Federal Aviation Administration shall prescribe (1) standards for the composition or chemi- cal or physical properties of an aircraft fuel or fuel additive to control or eliminate aircraft emissions the Administrator of the Environmental Pro- tection Agency decides under section 231 of the Clean Air Act (42 U.S.C. 7571) endanger the public health or welfare; and (2) regulations providing for carrying out and enforcing those standards.â 4â NACAA v. EPA, 489 F.3d 1221, 1229-30 (DC Cir. 2007).
152 OPTIONS FOR REDUCING LEAD EMISSIONS FROM PISTON-ENGINE AIRCRAFT Beyond this, a 2018 addition to 49 U.S.C. § 44714 gives the Adminis- trator of FAA authority to allow the use of a unleaded aviation gasoline in aircraft as a replacement for leaded aviation gasoline if FAA: (1) qualifies the unleaded gasoline as a replacement for approved leaded gasoline, (2) identifies the aircraft and aircraft engines eligible to use the unleaded gaso- line, and (3) adopts a process other than the traditional type certification process to allow eligible aircraft and aircraft engines to operate using the qualified replacement unleaded gasoline in a manner that ensures safety. However, as stated in the statutory language, these new provisions are not intended to replace existing regulatory mechanisms by which an unleaded aviation gasoline can approved for use in an engine or aircraft. The important overlapping authority and responsibility regarding lead emissions rests in two requirements. The first is the requirement for con- sultation between EPA and the U.S. Department of Transportation/FAA regarding aircraft emission standards in CAA section 231(b). If EPA makes an endangerment finding and eventually proposes some form of measure(s) to reduce lead emissions, before any final rule action, these potential measure(s) would need to be coordinated with FAA regarding the time the regulation takes effect after a period needed to permit the development and application of the requisite technology, considering the cost of compliance within such period. Furthermore, technical consultation would be needed under section 231(a)(2)(B)(i)â(ii), specifically that the regulation would not significantly increase noise and adversely affect safety. Second, 49 U.S.C. § 44714 stipulates that FAA prescribe standards for the composition or chemical or physical properties of an aircraft fuel or fuel additive in response to a final EPA endangerment finding under section 231 of the CAA and that FAA prescribe regulations for carrying out and enforcing those standards.