Options for Reducing Lead Emissions from Piston-Engine Aircraft (2021)

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PREPUBLICATION COPY – Uncorrected Proofs 120 Appendix C Statutory Provisions (42 U.S.C. §§ 7571-7573 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 responsibility regarding emissions from aircraft and the properties of aviation fuels. ENDANGERMENT FINDING Section 231 of the Clean Air Act (CAA) sets forth EPA’s authority to regulate aircraft emissions of air pollution. 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 which, in [the Administrator’s] judgment, causes or contributes to air pollution which may reasonably be anticipated to endanger public health or welfare” (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 the major part of an air pollution problem. Section 231(a) does not contain a modifier such as “significant” or “major” on the term “contribute” and thus does not appear to set the magnitude of the contribution as a criterion for an affirmative endangerment finding.1 In 1976, EPA listed lead under CAA section 108, making it what is called a “criteria pollutant.” As part of the listing decision, EPA determined that lead was an air pollutant, which, in the Administrator’s 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 (75 Federal Register 22440-22468), 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 “endangerment finding” with regard to lead emissions from piston-engine general aviation aircraft operations. REGULATORY AUTHORITY FOR EMISSION STANDARDS Section 231 of the CAA sets forth EPA’s authority to regulate aircraft emissions 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 1 75 Federal Register 22440-22468. April 28, 2010. Advance Notice of Proposed Rulemaking on Lead Emissions From Piston-Engine Aircraft Using Leaded Aviation Gasoline; Proposed Rule. See https://www.govinfo.gov/content/pkg/FR-2010-04-28/pdf/2010-9603.pdf. 2 National Ambient Air Quality Standards for Lead 73 FR 66965, November 12, 2008.

PREPUBLICATION COPY – Uncorrected Proofs 121 aircraft engines which, in [the Administrator’s] 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 EPA’s 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 issue and implement regulations to insure compliance with EPA’s standards, while Section 233 pre-empts States and local governments from adopting or enforcing any aircraft emission standards that are not identical to EPA’s standards. In a relatively recent opinion which included a review of this statutory scheme, the U.S. Court of Appeals for the District of Columbia Circuit ruled that “this delegation of authority is both explicit and extraordinarily broad.” The opinion also noted that “Congress has delegated expansive authority to EPA to enact appropriate regulations applicable to the emissions of air pollutants from aircraft engines.”3 Regulatory Authority for Fuel Standards Part A of Title II of the CAA contains sections 216 and 211. Section 216 defines “motor vehicle,” “nonroad engine,” and “nonroad vehicle.” Section 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 Administrator, any fuel or fuel additive or any emission product of the fuel or fuel product either: (A) causes or contributes to air pollution or water pollution that reasonably may be anticipated to endanger public health or welfare, or (B) will impair to a significant degree the performance of any emission control device or system which is in general use, or which 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. EPA’s 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 “nonroad vehicles,” and aircraft engines are not “nonroad engines.” EPA’s 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 regarding 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: “the Administrator of the Federal Aviation Administration shall prescribe (1) standards for the composition or chemical or physical properties of an aircraft fuel or fuel additive to control or eliminate aircraft emissions the Administrator of the Environmental Protection Agency decides under section 231 of the Clean Air Act (42 U.S.C. 7571) endanger the 3 NACAA v. EPA, 489 F.3d 1221, 1229-30 (DC Cir. 2007).

PREPUBLICATION COPY – Uncorrected Proofs 122 public health or welfare; and (2) regulations providing for carrying out and enforcing those standards.” Beyond this, a 2018 addition to 49 U.S.C. § 44714 gives the Administrator 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 gasoline, 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 consultation between EPA and the U.S. Department of Transportation (DOT)/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)-(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.