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August 31 – September 6, 2019
In this week's issue:
- DOT and EPA “Put California on Notice” that Framework Agreement with Automakers Appears “Unlawful and Invalid” (September 6, 2019)
- In Draft Policy Assessment EPA Staff Calls into Question Adequacy of PM NAAQS (September 5, 2019)
- Department of Energy Finalizes Rule Rolling Back Light Bulb Efficiency Standards, Proposes Rollback for Additional Bulb Type (September 5, 2019)
- D.C. Circuit Decides EPA Violated Endangered Species Act in Promulgation of 2018 Renewable Fuel Standards Rule; All Other Challenges to Rule Rejected (September 6, 2019)
- EPA Reaches Proposed Settlement with Environmental Groups over Failures to Act on SO2 NAAQS SIP Submissions (September 4, 2019)
- Connecticut Governor Signs Executive Order to Strengthen Climate Action (September 3, 2019)
- EPA Publishes Three Risk and Technology Review Proposals, Requests Public Comment (September 3, 4 & 6, 2019)
- EPA Announces Proposed Risk and Technology Review Amendments for Ethylene Production (September 5, 2019)
- EPA Seeks Comment by September 24 on Proposed List of Peer Reviewers for Draft Document on Reducing PM2.5 at Low Concentrations (September 3, 2019)
This Week in Review
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Steven G. Bradbury and Matthew Z. Leopold, the General Counsels of the U.S. Department of Transportation and EPA, respectively, sent a letter to Mary D. Nichols, Chair of the California Air Resources Board (CARB), “to put California on notice” that the July 25, 2019 framework agreement between the state and four automobile manufacturers (Ford, Honda, Volkswagen and BMW) on light-duty vehicle greenhouse gas (GHG) emission standards “appears to be inconsistent with Federal law.” According to Bradbury and Leopold, “Congress has squarely vested the authority to set fuel economy standards for new motor vehicles, and nationwide standards for GHG vehicle emissions, with the Federal government, not with California or any other State.” The DOT and EPA counsels continue with the statement, “Section 209 of the Clean Air Act prohibits California and other States from adopting or attempting to enforce their own emissions standards,” apparently referring to paragraph (a) of Section 209 while ignoring Section 209(b) of the Clean Air Act, which provides an exception to the previous paragraph: “The [EPA] Administrator shall, after notice and opportunity for public comment, waive the application of this section to any State which has adopted standards…for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” (emphasis added) The Section 209(b) waiver provision applies only to California, which adopted its first motor vehicle emission standards in 1966 (the federal government’s first motor vehicle emission standards were adopted two years later, in 1968). Other states are authorized under Clean Air Act Section 177 to adopt and enforce motor vehicle standards that are identical to California’s. Bradbury and Leopold also write that the Energy Conservation and Preservation Act (EPCA) “expressly preempts States from setting fuel economy standards for motor vehicles or taking any other action ‘related to’ the regulation of fuel economy” and contend that “[g]iven the direct, scientific link between tailpipe GHG emissions and fuel economy, any effort by California to adopt or apply the standards and related commitments agreed to in the framework clearly implicates EPCA’s preemption provision.” As a result of their assertions, Bradbury and Leopold write, “CARB’s actions in furtherance of the framework appear to be unlawful and invalid. We recognize California’s disagreements with the Federal government’s policy proposals in this area, but those policy disagreements cannot justify CARB’s pursuit of a regulatory approach that would violate Federal law.” They close by urging Chair Nichols to “act immediately to disassociate CARB from the commitments made by the four automakers” and stating that “[t]hose commitments may result in legal consequences given the limits placed in Federal law on California’s authority.” In a related action, the Wall Street Journal (WSJ) reported today that the U.S. Department of Justice (DOJ) launched an antitrust investigation into the four automakers that voluntarily entered into the framework agreement with California. According to the WSJ, DOJ is “seeking to determine if Ford Motor Co., Honda Motor Co., BMW AG and Volkswagen AG violated federal competition law by agreeing with each other to follow tailpipe-emissions standards beyond those proposed by the Trump administration.” In a press statement, Rep, Doris Matsui (D-CA) said “The Trump Administration is yet again abusing the power of the federal government to push an agenda that damages our environment and public health. This investigation is a political witch hunt that proves California’s efforts to reach an air quality deal with automakers is working, and President Trump can’t stand it.” Matsui committed to work with her colleagues “to investigate the decision to weaponize the DOJ, block Trump’s dirty car rule from going into effect, and protect California’s right to regulate its own air quality.”
For further information: http://www.4cleanair.org/sites/default/files/Documents/LDV_EPA-NHTSA_Letter_to_CARB_on_Auto_Deal-090619.pdf
EPA released its Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter: External Review Draft. Ultimately, the final version of this document will provide policy-relevant information to inform EPA’s ongoing review of the particulate matter NAAQS, which the agency is working to complete by December 2020. In this draft, EPA staff states, “we reach the preliminary conclusion that a number of key epidemiologic studies report positive and statistically significant PM2.5 health effect associations for air quality distributions likely to be allowed by the current primary PM2.5 standards,” and, further, that “[w]hen taken together, we reach the preliminary conclusion that the available scientific evidence, air quality analyses, and the risk assessment, as summarized above, can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.” Later in the report, EPA staff states, “we reach the preliminary conclusion that the available scientific evidence, air quality analyses, and the risk assessment, as summarized above, can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.” The current PM2.5 NAAQS, established in 2012, include a primary annual standard of 12 micrograms per cubic meter (µ/m3) and a primary 24-hour standard of 35 µ/m3. EPA will seek comment on this draft Policy Assessment from the Clean Air Scientific Advisory Committee and the public.
For further information: https://www.epa.gov/naaqs/particulate-matter-pm-standards-policy-assessments-current-review-0
The Department of Energy Published two Federal Register announcements (1) finalizing a February 2019 proposal to eliminate energy efficiency standards for multiple classes of light bulbs and (2) proposing a rollback of efficiency standards that apply to pear-shaped bulbs. The final rule eliminates standards promulgated in January 2017 that would have applied to a number of different lighting types, including globe-shaped bulbs, reflector bulbs, 3-way bulbs and candle-shaped bulbs, starting in 2020. According to DOE, the 2017 standards were “not consistent with the best reading of the [Energy Policy and Conservation Act].” The newly proposed rule, if finalized, would eliminate pear-shaped bulb standards set to go into effect in 2020. The Department has scheduled an October 15 public meeting in Washington, DC to hear oral testimony on the proposal and will accept public comments through November 4, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-09-05/pdf/2019-18940.pdf and https://www.govinfo.gov/content/pkg/FR-2019-09-05/pdf/2019-18941.pdf
In a unanimous panel opinion, the U.S. Court of Appeals for the District of Columbia Circuit remanded without vacatur EPA’s December 2017 rule setting renewable fuel volume and percentage requirements for the Renewable Fuel Standard Program for 2018, ruling in favor of environmental group petitioners who argued that EPA did not comply with its obligations under the Endangered Species Act in promulgating the rule. The court rejected three other petitions for review of the rule, which had challenged EPA’s action from several angles. American Fuel & Petrochemical Manufacturers argued that EPA set applicable volume and percentage standards too high; the National Biodiesel Board argued they were too low. The Small Retailers Coalition argued that EPA violated the Regulatory Flexibility Act by failing to assess the rule’s potential effects on small fuel retailers. All these challenges lacked merit, the court held, except for the one filed by the Gulf Restoration Network and Sierra Club. The court agreed with the environmental group petitioners that EPA violated the Endangered Species Act by failing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service regarding whether the rule would adversely affect threatened or endangered species. The court remanded the rule to EPA to make an appropriate effects determination. The remand is without vacatur, meaning the rule will remain in effect while EPA completes this process.
For further information: http://www.4cleanair.org/sites/default/files/Documents/American-Fuel-Petrochemical-Manu-v-EPA-DC-Cir-Opinion-9-6-19.pdf
EPA published a notice in the Federal Register (84 Fed. Reg. 46519) requesting public comment on a proposed consent decree to resolve a lawsuit filed by the Center for Biological Diversity, Center for Environmental Health and Sierra Club over EPA’s failure to 1) approve or disapprove several submitted sulfur dioxide (SO2) State Implementation Plans (SIP) and 2) issue findings of failure to submit SO2 SIPs for several areas. Specifically, the petitioners sought to compel EPA action on SO2 SIP submittals for certain areas in Arizona, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Wisconsin and West Virginia. They further sought to compel EPA to make findings of failure to submit SO2 SIPs for areas in Illinois, Maryland, Michigan and New Jersey. Since the lawsuit was filed in June 2018, in the U.S. District Court for the Northern District of California, EPA has taken final action on a number of these submittals and failures to submit, thus mooting those claims. The proposed consent decree would require EPA to take actions regarding the remaining areas by specific deadlines set forth in the agreement, unless EPA or the relevant state(s) takes actions that automatically terminate EPA’s obligations for individual areas. EPA will accept public comments on the proposed consent decree through October 4, 2019. After considering any comments received, if the federal government decides to go forward with the agreement it will be filed for approval by the court.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-09-04/pdf/2019-19100.pdf and https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OGC-2019-0411-0005&contentType=pdf
Connecticut Governor Ned Lamont signed an executive order strengthening the state’s efforts to address climate change. The order largely expands the role of an executive committee chartered in 2015 to develop a state climate action plan. The committee, called the Governor’s Council on Climate Change, released a report in late 2018 outlining pathways to reduce Connecticut’s greenhouse gas emissions to 45 percent below 2001 levels by 2030. The new executive order expands the committee’s scope to help ensure that the report’s recommendations are implemented and includes a new directive to develop a statewide adaptation and resilience plan. “Climate change is an urgent, existential threat that must be tackled immediately, and under the leadership of this administration I am going to see to it that Connecticut remains a national leader on climate action,” said Governor Lamont at a press event to announce the order.
For further information: https://portal.ct.gov/Office-of-the-Governor/News/Press-Releases/2019/09-2019/Governor-Lamont-Signs-Executive-Order-Strengthening-Connecticuts-Efforts-to-Mitigate-Climate-Change
EPA published three proposed Risk and Technology Review standards in the Federal Register, on which the agency is soliciting public comment. The Site Remediation proposal was published on September 3, 2019 (84 Fed. Reg. 46138) with a comment deadline of October 18, 2019; the Miscellaneous Coating Manufacturing proposal was published on September 4, 2019 (84 Fed. Reg. 46610) with a comment deadline of October 21, 2019; and the Plywood and Composite Wood Products proposal was published on September 6, 2019 (84 Fed. Reg. 47074) with a comment deadline of October 21, 2019. For all three source categories, EPA is proposing that the risks due to emissions of hazardous air pollutants are acceptable and that no revisions to the standards are required to provide an ample margin of safety to protect public health. EPA is also proposing minor amendments that revise the requirements for startup, shutdown and malfunction to be consistent with recent court decisions and require electronic reporting of performance test results, among other things. For the Miscellaneous Coating and Plywood and Composite Wood Products source categories, EPA is proposing that there are no new developments in practices, processes or control technologies that would further reduce emissions of hazardous air pollutants. With respect to the Site Remediation source category, however, EPA is proposing to amend the requirements for leak detection and repair, based on the technology review.
For further information: Site Remediation – https://www.govinfo.gov/content/pkg/FR-2019-09-03/pdf/2019-17223.pdf and https://www.epa.gov/stationary-sources-air-pollution/site-remediation-national-emission-standards-hazardous-air; Miscellaneous Coating Manufacturing — https://www.govinfo.gov/content/pkg/FR-2019-09-04/pdf/2019-18344.pdf and https://www.epa.gov/stationary-sources-air-pollution/miscellaneous-coating-manufacturing-national-emission-standards; Plywood and Composite Wood Products — https://www.govinfo.gov/content/pkg/FR-2019-09-06/pdf/2019-18827.pdf and https://www.epa.gov/stationary-sources-air-pollution/plywood-and-composite-wood-products-manufacture-national-emission
EPA proposed Risk and Technology Review standards for the Ethylene Production source category that would determine that the risks from the source category are acceptable and that the current standard provides an ample margin of safety to protect public health and the environment. However, with respect to the technology review portion of the rule, EPA is proposing to call for amendments in practices, processes or control technologies for heat exchange systems and storage vessels that would further reduce emissions. The agency is also proposing amendments for flares, pressure relief device releases and the decoking of ethylene cracking furnaces. EPA clarifies in the proposal that the standards apply during periods of startup, shutdown and malfunction and calls for electronic reporting of notification of compliance status and performance test results and reports. There will be a 45-day comment period beginning with publication of the proposal in the Federal Register.
For further information: https://www.epa.gov/stationary-sources-air-pollution/proposed-amendments-air-toxics-standards-ethylene-production
EPA published in the Federal Register (84 Fed. Reg. 46006) a notice providing a proposed list of peer reviewers for an independent, contractor-managed, external peer review of the agency’s draft document, titled Potential Approaches for Characterizing the Estimated Benefits of Reducing PM2.5 at Low Concentrations. Comments on the proposed candidates must be submitted to EPA by September 24, 2019. The agency also announced a one-day meeting of the peer review panel, to be held on October 21, 2019 in Research Triangle Park, NC.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-09-03/pdf/2019-18945.pdf