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August 17-23, 2019
In this week's issue:
- Court Dismisses Once-In-Always-In Rescission Suit (August 20, 2019)
- DC Circuit Court Upholds 2015 Ozone Standard (August 23, 2019)
- Regional Haze SIP Guidance Issued by EPA (August 20, 2019)
- EPA Proposes RTR for Integrated Iron and Steel Manufacturing (August 16, 2019)
- EPA Proposes Multiple Risk and Technology Review Standards (August 16-19, 2019)
- EPA Issues Timing Changes and Model Plan for Municipal Solid Waste Program (August 22, 2019)
- EPA Releases 2019 Update to Wildfire Smoke Guidance (August 22, 2019)
- Study Links Air Pollution to Emphysema (August 13, 2019)
- New Region 1 Regional Administrator Named (August 22, 2019)
This Week in Review
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The U.S. Court of Appeals for the District of Columbia Circuit has dismissed a suit challenging EPA’s January 25, 2018 memorandum rescinding the 1995 “Once-In-Always-In” (OIAI) policy (California Communities Against Toxics v. EPA, No. 18-1085). The court ruled that the 2018 memo is not final agency action and therefore the petitions opposing it lack subject matter jurisdiction under the Clean Air Act. The court did not rule on the merits of rescission itself, stating: “We express no opinion as to whether the Wehrum Memo is prudentially ripe, an interpretive rule or a legislative rule, or on the merits of its interpretation of § 112.” The OIAI policy provided that once a source of hazardous air pollution (HAP) is considered a major source under Section 112, then it remains major even if its emissions drop below major-source levels. The January 25, 2018 memo, written by then-EPA Assistant Administrator William Wehrum, would allow major sources to reclassify as area sources at any time by limiting their potential to emit (PTE) HAPs to below major-source thresholds. The petitioners contended that the January 2018 memorandum was a final agency action and was ripe for consideration and that it was a legislative rule and should have been preceded by notice and comment. EPA contended that the court lacked jurisdiction because the memo was not final agency action. On July 25, 2019, EPA issued a proposal that would put the provisions of the OIAI rescission into regulation.
For further information: http://4cleanair.org/sites/default/files/Documents/OIAIMemoCourtRuling.pdf
U.S. Court of Appeals for the D.C. Circuit yesterday upheld much of the EPA’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone in the case of Murray Energy Corp. v. EPA, Case No. 15-1385. The 2015 standard is 70 parts per billion (ppb). The Clean Air Act requires EPA to issue NAAQS for certain criteria air pollutants, like ozone, and review those NAAQS every five years. Prior to issuance of the 2015 standard, EPA last revised the ozone NAAQS in 2008, setting the primary and secondary ozone standards at 75ppb. In in 2015, EPA issued a revised NAAQS for ozone, lowering the primary and secondary standards to 70 ppb. Numerous parties challenged the 2015 ozone NAAQS in the DC Circuit Court and in 2017, the EPA asked for an indefinite continuation of oral argument in the case while it reviewed the standard, but in 2018 provided a defense of the standard before the court (see, July 6, 2018 Washington Update). In this week’s ruling the three-judge panel rejected claims by the plaintiffs that background levels make the primary 2015 standard impossible to achieve, but ordered EPA to review the secondary public welfare standard, with an eye toward possibly lowering that secondary standard further. The court also struck down a “grandfathering” provision that allowed companies that had submitted applications for pre-construction air permits before the 2015 rule was issued to only have to meet the 2008 standard.
For further information: http://4cleanair.org/sites/default/files/Documents/DCCircuit-Ozone-08232019.pdf
EPA has finalized guidance for clean air agencies developing State Implementation Plans (SIPs) for the Regional Haze Program. The deadline for SIPs for the current implementation period is July 31, 2021. The non-binding document is one of a series of implementation tools and guidance documents that EPA says is intended to help states’ efforts to reduce regional haze in National Parks, wildlife refuges, and wilderness areas. It includes background information on the regional haze program and the authorities that underpin it, guidance on each SIP development step, and appendices with additional information. Building on the September 2018 Regional Haze Roadmap, the guidance replaces draft guidance issued in 2016.
For further information: https://www.epa.gov/sites/production/files/2019-08/documents/8-20-2019_-_regional_haze_guidance_final_guidance.pdf
EPA has proposed a Risk and Technology Review standard for Integrated Iron and Steel manufacturing facilities (84 Fed. Reg. 42,704). According to EPA, the residual risk remaining after the implementation of the Maximum Achievable Control Technology (MACT) standard in 2003 is acceptable and the MACT provides an ample margin of safety to protect public health. EPA is also proposing that there are no new developments in controls that warrant updating the standard. However, pursuant to a request for reconsideration of a possible mercury standard, EPA is proposing an emission limit for mercury that originates in scrap metal used by these facilities as input for making steel. Additionally, EPA is proposing revisions to the requirements for startup, shutdown and malfunction to be consistent with recent court decisions and is calling for electronic reporting of compliance reports and performance tests. The comment deadline is September 30, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-08-16/pdf/2019-17349.pdf and https://www.epa.gov/stationary-sources-air-pollution/integrated-iron-and-steel-manufacturing-national-emission-standards
EPA has recently proposed three regulations containing Risk and Technology Review (RTR) standards covering emissions of hazardous air pollutants from a range of source categories. RTR standards are intended to address the risks remaining eight years after the implementation of Maximum Achievable Control Technology (MACT) and to consider new controls or technologies that have been developed since MACT was established. The three proposals cover (1) Surface Coating of Automobiles and Light-Duty Trucks; Surface Coating of Miscellaneous Metal Parts and Products; Surface Coating of Plastic Parts and Products; (2) Lime Manufacturing; and (3) Cellulose Products Manufacturing. For all three proposals, EPA is determining that the risks remaining after MACT are acceptable and that there are no new developments in control technologies or practices that would warrant additional requirements. EPA is proposing minor amendments, however, including to clarify that the standards are applicable during periods of startup, shutdown and malfunction and require electronic reporting of data submissions. Within the first proposal (surface coatings source categories) EPA is also proposing technical corrections to the regulations for the following source categories: Surface Coating of Metal Furniture; Surface Coating of Large Appliances; and Printing, Coating, and Dyeing of Fabrics and Other Textiles. The RTR proposals are among a number that EPA has recently proposed to comply with court-ordered deadlines that require the agency to issue final standards by March or June of 2020 (depending on the source category). All three of the new proposals will be subject to a 45-day public comment period that will begin upon publication in the Federal Register.
For further information: https://www.epa.gov/stationary-sources-air-pollution/proposed-rule-coatings-package-3-national-emission-standards, https://www.epa.gov/stationary-sources-air-pollution/lime-manufacturing-plants-national-emission-standards-hazardous-air and https://www.epa.gov/stationary-sources-air-pollution/cellulose-products-manufacturing-national-emission-standards
EPA has taken two actions related to timing and implementation of the 2016 Emission Guidelines for existing Municipal Solid Waste Landfills. In the first action, EPA issued a final rule to change plan submission deadlines for the 2016 Emission Guidelines. The final rule aligns state plan timing requirements with the updated Clean Air Act section 111(d) implementing regulations that were finalized with the Affordable Clean Energy rule. State plans are preferred over federal plans, so EPA and states will have additional time – until 2021 — to work toward getting state plans in place. This is in line with EPA’s belief that states should take the lead on implementing 111(d) emission guidelines for sources in their states. However, EPA acknowledges that there is now a conflict between EPA’s current implementing regulations and a pre-existing court order for EPA to put a federal plan in place by November 6, 2019. EPA is considering whether to seek appropriate relief from the court (e.g. ask the Court to revise the deadline). In the meantime, EPA is continuing work to meet the court-ordered deadline. In the second action, a notice ran in the Federal Register through which EPA is proposing a federal plan for public comment. The federal plan, if finalized, would apply in states and Indian country where state or tribal plans are not in effect. Upon approval of a state plan, the federal plan would no longer apply to MSW landfills in that state. Comments on the proposed plan must be received on or before October 7, 2019.
For further information: https://www.epa.gov/stationary-sources-air-pollution/municipal-solid-waste-landfills-new-source-performance-standards and https://www.federalregister.gov/documents/2019/08/22/2019-17822/federal-plan-requirements-for-municipal-solid-waste-landfills-that-commenced-construction-on-or
EPA has released a 2019 update of guidance for public health officials titled Wildfire Smoke: A Guide for Public Health Officials. Originally developed by the California Air Resources Board (CARB) and the California Department of Public Health (CDPH), the guide is designed to help local public health officials prepare for smoke events, to take measures to protect the public when smoke is present, and communicate with the public about wildfire smoke and health. It has been updated especially with respect to preparedness, exposure reduction strategies, and ash clean-up.
For further information: http://www.airnow.gov/wildfire-guide
A new study published in the Journal of the American Medical Association has linked ambient air pollution with emphysema, a disease that had previously been mostly associated with smoking. The study, led by the University of Washington, Columbia University, and the University at Buffalo, examined air pollution and over 15,000 records of health outcomes from more than 7,000 people between 2000 and 2018 in six metropolitan regions across the U.S.: Chicago IL, Winston-Salem NC, Baltimore MD, Los Angeles CA, St. Paul MN, and New York NY. It concluded that long-term exposure to ambient air pollutants was significantly associated with increasing emphysema assessed quantitatively using computed tomographic (CT) imaging and lung function. “We were surprised to see how strong air pollution’s impact was on the progression of emphysema on lung scans, in the same league as the effects of cigarette smoking, which is by far the best-known cause of emphysema,” said Dr. Joel Kaufman from the University of Washington, the study’s senior co-author. The study found that the combined health effect of multiple air pollutants – ozone, PM2.5, nitrogen oxides, and black carbon – was greater than the individual effects of each pollutant.
For further information: https://jamanetwork.com/journals/jama/article-abstract/2747669 and https://www.sciencedaily.com/releases/2019/08/190813180833.htm
Dennis Deziel has been named the new regional administrator for EPA Region 1, headquartered in Boston, MA. Deziel, who resides in Maryland, has been the director of federal affairs at Dow Chemical since 2014, and previously served as a federal official at the Department of Energy, the Department of Homeland Security, the Council on Environmental Quality, and began his federal career with the EPA’s pesticides and chemicals program. He will step into the role currently filled by Deborah Szaro, who has been the Acting Regional Administrator since Alexandra Dunn departed the position to lead EPA’s Office of Chemical Safety and Pollution Prevention in 2018. EPA’s Regional Office for Region 1 serves the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut and 10 Tribal Nations.
For further information: https://www.epa.gov/newsreleases/epa-appoints-dennis-deziel-region-1-administrator