2010 Feb. 22: Part 1 of 4: To the EPA: Text of PETITION FOR WATER QUALITY CRITERIA FOR BLACK CARBON ON SEA ICE AND GLACIERS UNDER SECTION 304 OF THE CLEAN WATER ACT, 33 U.S.C. § 1314

2010 Feb. 22: To the EPA: Text of PETITION FOR WATER QUALITY CRITERIA FOR BLACK CARBON ON SEA ICE AND GLACIERS UNDER SECTION 304 OF THE CLEAN WATER ACT, 33 U.S.C. § 1314

 

B

EFORE THE ENVIRONMENTAL PROTECTION AGENCY

February 22, 2010

TABLE OF CONTENTS

I. ……………………………………………………………………….1 EXECUTIVE SUMMARY

II.

………………………………………………………………………………………….2 PETITIONER

III.

…………………………………………………………………………….2 RIGHT TO PETITION

IV.

…………………………….3 SCIENTIFIC BACKGROUND ON BLACK CARBON

A.

………………………………………………………………………….3 Black Carbon is Likely the Second Leading Cause of Global Warming After Carbon Dioxide

B.

……………………………………………4 Black Carbon Deposition Accelerates the Melt of Sea Ice and Glaciers by Reducing the Reflectivity of Snow and Ice

C.

……………………………………………………………………..6 Sources of Black Carbon

D.

…………………………………7 Strategies for Reducing Black Carbon Emissions

E.

…………………………………………………………………….9 Reducing Black Carbon Emissions is Critical to Avoiding Complete Loss of Summer Arctic Sea Ice

V.

…………………………………………………………………………………………..9 THE ATMOSPHERIC DEPOSITION OF BLACK CARBON ON SEA ICE AND GLACIERS IS SUBJECT TO REGULATION UNDER THE CLEAN WATER ACT

A.

…………………………………………………………………9 Sea Ice and Glaciers are Waters of the United States Afforded Protection Under the Clean Water Act

1. …………………………………………………………………………………………9 Sea ice

2. ……………………………………………………………………………………..13 Glaciers

B.

………………………………..17 Atmospheric Depositions of Black Carbon onto Waters of the United States are Subject to Clean Water Act Authority

VI.

………………………………………………………………17 REQUESTED RULEMAKING

A.

…………………………………………………….18 EPA Must Develop and Publish Water Quality Criteria for Black Carbon Deposition on Sea Ice and Glaciers

B.

……………………………………20 EPA Must Develop and Publish Information on the Factors Necessary to Maintain the Integrity of Sea Ice and Glaciers

VII.

……………………………………………………………………………………20 SEVERABILITY

VIII.

………………………………………………………………………………………21 CONCLUSION

LITERATURE CITED

……………………………………………………………………………………..22

PETITION FOR WATER QUALITY CRITERIA FOR BLACK CARBON ON SEA ICE AND GLACIERS UNDER SECTION 404 OF THE CLEAN AIR ACT, 33 U.S.C. § 1314

I.
EXECUTIVE SUMMARY

Arctic sea ice and glaciers are rapidly diminishing. At current trajectories, scientists predict that the Arctic Ocean could be ice-free in summer by 2030. Many of the glaciers still remaining in the continental United States are also projected to disappear within this timeframe. These catastrophic changes are not only the result of increased atmospheric concentrations of greenhouse gas emissions, but also from black carbon, an airborne particle generated from the incomplete combustion of fossil fuels, biofuels, and biomass. Black carbon has both a direct warming effect, by absorbing solar radiation in the atmosphere and converting it to heat radiation, and an indirect effect, by reducing the reflectivity (albedo) of snow and ice when deposited on these surfaces. Because it turns snow and ice darker, black carbon deposition accelerates the melt of sea ice and glaciers.

Because of black carbon’s short atmospheric lifespan, reductions in black carbon emissions yield immediate benefits. Restoring snow and ice albedos to preindustrial levels would help stem the loss of sea ice and glaciers and buy critically needed time to achieve the deep reductions in carbon dioxide and other greenhouse gases that are ultimately necessary to preserve these important resources. However, the window of opportunity to act, like the sea ice, is shrinking rapidly.

The Center for Biological Diversity formally requests that the United States Environmental Protection Agency (EPA) initiate a rulemaking pursuant to the Clean Water Act, 33 U.S.C. § 1314(a), to address threats posed by black carbon. This Petition for rulemaking specifically requests that the EPA:

(1)
Develop national water quality criteria pursuant to section 304(a)(1) stating that black carbon concentrations on sea ice and glaciers should not deviate measurably from preindustrial levels.
(2)
Publish information on black carbon pursuant to section 304(a)(2) to guide states in identifying local sources of black carbon emissions and strategies for reducing those emissions.

As the nation’s premier mechanism for protecting water quality, the Clean Water Act is designed to address water pollution – including degradation from the deposition of black carbon. Protection of sea ice and glaciers is required under the Clean Water Act. Sea ice forms off the coast of Alaska and is part of the "territorial seas" explicitly protected under the Act. Clean Water Act jurisdiction also extends to glaciers because glaciers are water bodies whose waters flow into traditional navigable waters. Protection of sea ice and glaciers also furthers the fundamental purpose of the Clean Water Act, which is "to restore and maintain the chemical, physical, and biological integrity of the

1

Nation’s waters."1 Sea ice and glaciers are essential components of the chemical, physical and biological integrity of the Arctic and/or downstream waters and the ecosystems of which they are a part.

The Clean Water Act is the nation’s strongest law protecting our waters. Because black carbon is contributing to glacial retreat and loss of sea ice, EPA is required to address the impacts of black carbon on these vanishing resources. Therefore, it is incumbent upon EPA to develop and publish the criteria and information requested in this Petition.

II.
PETITIONER

The Center for Biological Diversity is a nonprofit environmental organization dedicated to the protection of imperiled species and their habitats through science, education, policy, and environmental law. The Center’s Climate Law Institute develops and implements legal campaigns to limit global warming pollution and prevent it from driving species extinct. The Center has over 225,000 members and online activists. The Center submits this Petition on its own behalf and on behalf of its members and staff with an interest in protecting the environment.

The contact for this Petition is:

Matt Vespa

Senior Attorney, Climate Law Institute

Center for Biological Diversity

351 California Street, Suite 600

San Francisco, California 94104

(415) 436-9682 x 309

mvespa@biologicaldiversity.org

III.
RIGHT TO PETITION

The right of an interested party to petition a federal agency is a freedom guaranteed by the first amendment: "Congress shall make no law … abridging the … right of people … to petition the Government for redress of grievances."2 Under the Administrative Procedures Act (APA), all citizens have the right to petition for the "issuance, amendment, or repeal" of an agency rule.3 A "rule" is the "whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy."4 In the present case, Petitioner seeks issuance of a new rule containing water quality criteria for black carbon. The issuance of

1

Federal Water Pollution Control Act ("Clean Water Act") § 101(a); 33 U.S.C. § 1251(a) (2006).

2 U.S. Const., amend I; see also United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967) (right to petition for redress of grievances is among most precious of liberties without which the government could erode rights).

3 5 U.S.C. § 553(e) (2006).

4 5 U.S.C. § 551(4) (2006).
2
 

new criteria under Section 304 is a non-discretionary duty under the Clean Water Act. EPA is required to respond to this petition: "Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding."5

This Petition is enforceable under the citizen suit provision of the Clean Water Act.6 The federal district courts of the United States have jurisdiction over a claim that the Administrator of the EPA has failed to perform a non-discretionary duty.7 The APA also provides for judicial review of a final agency action and permits courts to compel agency action unlawfully withheld or unreasonably delayed.8 The scope of review by the courts is determined by Section 706 of the APA.9

5 5 U.S.C. § 555(e) (2006).

6 33 U.S.C. § 1365 (2006).

7 33 U.S.C. § 1365(a)(2) (2006).

8 5 U.S.C. §§ 704, 706 (2006).

9 5 U.S.C. § 706 (2006).

10 Piers Forster et al., Changes in Atmospheric Constituents and Radiative Forcing, in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, CONTRIBUTION OF WORKING GROUP 1 TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 136 (S. Solomon et al. eds., 2007).

11 Tami Bond & Haolin Sun, Can Reducing Black Carbon Emissions Counteract Global Warming?, 39 ENVTL. SCI. & TECH. 5921, 5921 (2005).

12 Forster et al., supra note 10, at 163.

13 Id. at 207. "Radiative forcing is a measure of how the energy balance of the Earth-atmosphere system is influenced when factors that affect climate are altered. Radiative forcing is usually quantified as the ‘rate of energy change per unit area of the globe as measures at the top of the atmosphere’ and is expressed in units of Watts per square meter. When radiative forcing is positive, the energy of the Earth-atmosphere system will ultimately increase, leading to a warming of the system." Id. at 136.

14 V. Ramanathan & G. Carmichael, Global and Regional Climate Changes Due to Black Carbon, 1 NATURE GEOSCIENCE 221, 222 (2008).
IV.
SCIENTIFIC BACKGROUND ON BLACK CARBON
A.
Black Carbon is Likely the Second Leading Cause of Global Warming After Carbon Dioxide

Increases in atmospheric concentrations of greenhouse gases are typically associated with global warming. However, aerosols are also an important and often overlooked contributor to climate change. Aerosols are small particles present in the atmosphere that affect climate change through either the reflection or absorption of solar radiation.10 Light colored, reflective particles, such as sulfates, generally have a cooling effect on the climate.11 In contrast, dark colored, light-absorbing particles, such as black carbon, have a direct warming effect on the climate by absorbing solar radiation in the atmosphere and converting it to heat radiation.12 The International Panel on Climate Change (IPCC) estimates that the direct radiative forcing of black carbon is 0.34 Wm-2 [± 0.25].13 A more recent estimate of the radiative forcing of black carbon is 0.9 Wm-2, which is "as much as 55% of the forcing" due to carbon dioxide.14 The strong warming effect of black carbon exceeds that due to methane, "suggesting that black carbon may be

3

15 Mark Jacobson, Strong Radiative Heating Due to the Mixing State of Black Carbon in Atmospheric Aerosols, 409 NATURE 695, 695 (2001); Ramanathan & Carmichael, supra note 14, at 221. Because it is an aerosol and not a greenhouse gas, there is no standardized formula for developing global warming potentials (GWP) for black carbon. However, attempts to estimate the GWP of black carbon over a period of 100 years range from a GWP 90 – 2240 times that of carbon dioxide. See Mark Jacobson, Correction to ‘Control of Fossil Fuel Particulate Black Carbon and Organic Matter, Possibly the Most Effective Method of Slowing Global Warming,’ 110 J. GEOPHYSICAL. RES. D14105 (2005) (GWP BC – 90 – 190); Bond & Sun, supra note 11, at 5921 (GWP BC – 680); EPA Black Carbon and Global Warming: Hearing Before the H. Comm. on Oversight and Gov’t. Reform, 110th Cong. 12-29 (2007) [hereinafter Hearing] (statement of Mark Z. Jacobson, Professor, Stanford University) (GWP BC – 2240).

16 See, e.g., James Hansen & Larissa Nazarenko, Soot Climate Forcing via Snow and Ice Albedos, 101 PROC. NATL ACAD. SCI. U.S. 423, 427 (2004), available at http://www.pnas.org/content/101/2/423.full.

17 Ramanathan & Carmichael, supra note 14, at 222; Hearing, supra note 15, at 16 (statement of Mark Z. Jacobson).

18 Ramanathan & Carmichael, supra note 14, at 224.

19 Hearing, supra note 15, at 72 (statement of Charles Zender, Associate Professor, University of California at Irvine).

20 P.K. Quinn et al., Short-lived Pollutants in the Arctic: Their Climate Impact and Possible Mitigation Strategies, 8 ATMOSPHERIC CHEMISTRY & PHYSICS 1723, 1731 (2008).

21 Hearing, supra note 15, at 73 (statement of Charles Zender, Associate Professor, University of California at Irvine); see also M. Flanner et al., Present-Day Climate Forcing and Response from Black Carbon in Snow, 112 J. GEOPHYSICAL. RES. D11202 at 15 (2007) ("BC snowpack can provoke disproportionately large springtime climate response because the forcing tends to coincide with the onset of snowmelt, thus triggering more rapid snow ablation and snow-albedo feedback.").

22 Hearing, supra note 15, at 73 (statement of Charles Zender, Associate Professor, University of California at Irvine).

the second most important component of global warming after CO2 in terms of direct forcing."15

B.
Black Carbon Deposition Accelerates the Melt of Sea Ice and Glaciers by Reducing the Reflectivity of Snow and Ice

In addition to its direct warming effect, black carbon has an indirect warming effect by reducing the reflectivity of snow and ice.16 When black carbon falls on snow and sea ice surfaces, either on its own or within ice crystals or snow flakes, it darkens those surfaces, thereby contributing to the melting of snow and ice and the warming of air above both.17 The direct and indirect warming effects of black carbon make it one of the most important contributors to the retreat of Arctic sea ice.18 Snow and ice contaminated with black carbon heat the Arctic surface very efficiently due to strong Arctic temperature inversions and the insulating properties of snow.19 In the spring, deposition of black carbon onto snow and ice yields a positive forcing that increases surface temperature by approximately 0.5°C.20 During springtime in the Arctic, black carbon’s direct warming effect on snow can be three times as strong as carbon dioxide.21 Because of its combined heating of the Arctic atmosphere and of the surface, black carbon is believed to warm the Arctic more than any other agent except carbon dioxide.22

Black carbon has an even greater impact on seasonal snow and ice because it causes earlier exposure of underlying low-albedo surfaces (e.g., rock, soil, vegetation and

4

23 Joseph McConnel et al., 20th-Century Industrial Black Carbon Emissions Altered Arctic Climate Forcing, 317 SCIENCE 1381, 1383 (2007).

24 Hearing, supra note 15, at 72 (statement of Charles Zender, Associate Professor, University of California at Irvine).

25 Hearing, supra note 15, at 71 (statement of Charles Zender, Associate Professor, University of California at Irvine).

26 Baiqing Xu et al., Black Soot and the Survival of Tibetan Glaciers, 106 PROC. NATL ACAD. SCI. U.S. 22114 (2009), available at http://www.pnas.org/content/106/52/22114.full.

27 Hansen & Nazarenko, supra note 16, at 427.

28 Id.

29

Id. at 424.

30

Id.

31

Id. at 423.

32

Id. at 424. 33 Id. at 427.

ocean).23 Over the course of the Arctic spring, black carbon-contaminated snow absorbs enough extra sunlight to melt earlier – weeks earlier in some places – than clean snow.24 As snow and ice surfaces continue to warm, melt, darken and lose contrast with black carbon, the net warming effect of black carbon on the Arctic will decrease.25 Thus, reducing black carbon now will have more of an impact than delaying reductions.

Black carbon’s impact on the melting of snow and sea ice applies with equal force to the decrease in albedo of glaciers in montane regions and consequent accelerated melt-off. Black carbon depositions on Tibetan glaciers have been found to be a significant contributing factor to observed rapid glacier retreat.26 By increasing surface melt on ice masses, black carbon triggers positive feedbacks because the resulting melt water spurs multiple radiative and dynamic feedback processes that accelerate ice disintegration.27 Moreover, in the case of glaciers, by increasing water flow through crevasses and moulins, black carbon speeds freeze-thaw ice break-up and lubrication of the ice sheet base.28

Pristine Antarctic regions have been found to contain black carbon concentrations of 0.1-0.3 ppbw (parts per billion by weight), two orders of magnitude less than the Arctic.29 Notably, black carbon amounts of 3 ppbw were found 1 km downwind of the South Pole station, where the station’s power plant and aircraft operations were a suspected source.30 Snow samples in the 1980s, including sites in Alaska and on sea ice in the central Arctic, yielded typical black carbon amounts of 10-50 ppbw.31 While black carbon emissions may have fallen in the 1990s due to the economic collapse of the former Soviet Union, reduced black carbon emissions are not necessarily permanent in the face of possible economic recovery, increased shipping in the opening Northwest and Northeast Passages, regional hydrocarbon resource development, and increased use of diesel-powered vehicles.32 Measurements in the Alps revealed black carbon concentrations as large as 100 ppbw, enough to reduce the visible albedo by approximately 10% and double absorption of sunlight.33 However, because of the positive feedbacks resulting from black carbon deposition, much smaller concentrations of black carbon perturb snowmelt. In today’s warmer climate, very small concentrations

5

34 Hearing, supra note 15, at 74 (statement of Charles Zender, Associate Professor, University of California at Irvine).

35 Id. at 33 (statement of Tami Bond, Assistant Professor, University of Illinois at Urbana-Champaign).

36 MARK BAHNER ET AL., RTI INTERNATIONAL, USE OF BLACK CARBON AND ORGANIC CARBON INVENTORIES FOR PROJECTIONS AND MITIGATION ANALYSIS 1, http://www.epa.gov/ttn/chief/conference/

ei16/session3/k.weitz.pdf (last visited Feb. 2, 2010). Large coal-fired plants do not emit a significant amount of black carbon because the very high temperatures and efficient mixing of air and fuel readily oxidize any fine carbon particles leaving the combustion zone. It is primarily mineral matter that escapes – which is either captured in a particulate control device or passes through into the atmosphere. D.G. Streets et al., On the Future of Carbonaceous Aerosol Emissions, 109 J. GEOPHYSICAL RES. D4212 at 2 (2004).

37 Hearing, supra note 15, at 15 (statement of Mark Z. Jacobson, Professor, Stanford University).

38 Bahner et al., supra note 36, at 1.

39 Id. at 2.

40 Dorothy Koch et al., Global Impact of Aerosols from Particular Source Regions and Sectors, 112 J. GEOPHYSICAL RESEARCH D02205 at 18 (2007).

of black carbon impurities (~ 10 ppb) are triggering astonishingly large ice-albedo warming.34

 

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