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July 27 – August 2, 2019
In this week's issue:
- EPA Signs Proposed New Source Review “Project Emissions Accounting” Rule (August 1, 2019)
- Senate EPW Committee Unanimously Approves Comprehensive Surface Transportation Legislation, Including First-Ever Climate Title (July 30, 2019)
- EPA Inspector General Finds Agency’s 2017 Testing of Glider Trucks Complied with Standard Practices (July 31, 2019)
- EPA Schedules August 15 Public Hearing for Proposed Once-In-Always-In Rescission (July 31, 2019
- EPA Publishes Proposed RFS Volume Requirements for 2020, Announces August 30 Comment Deadline (July 29, 2019)
- EPA Submits Fourth DERA Report to Congress (July 26, 2019)
- EPA Publishes RTR for Municipal Solid Waste Landfills (July 29, 2019)
- Senator Harris and Rep. Ocasio-Cortez Circulate Draft Climate Bill Targeting Environmental Justice Communities (July 29, 2019)
This Week in Review
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EPA Administrator Andrew Wheeler signed a proposed rule to “clarify” the requirements that apply to sources proposing to undertake a project under the New Source Review (NSR) permitting program and codify the regulatory interpretation it announced in EPA’s March 13, 2018 “Project Emissions Accounting” memorandum. The proposed rule would require that during “Step 1” of the two-step process used to determine whether a project is a “major modification” subject to NSR permitting requirements, emission decreases are to be considered along with emission increases. To summarize how the two-step process works: In Step 1, the source determines whether the proposed project, by itself, is projected to result in a significant emissions increase. If so, the process moves to Step 2, where the source evaluates whether the project will result in a significant net emissions increase, considering any other increases and decreases in actual emissions throughout the facility. An emissions increase of a regulated NSR pollutant is considered significant at Step 1 or 2 if the emissions increase would be equal to or greater than any of the pollutant-specific significant emissions rates listed under the definition of “significant” in the applicable NSR regulations. Prior to the March 2018 memorandum, EPA allowed sources to evaluate only projected emission increases at Step 1. The memorandum announced EPA’s new interpretation of the existing regulations as allowing the project emissions accounting approach. The proposed rule goes further, in that it would revise the regulatory language to directly state that both emissions increases and decreases “shall” be included as part of the Step 1 calculation. EPA is seeking comment on implementation aspects of project emissions accounting, including how sources should keep records of their emissions increases and decreases. In addition, EPA is seeking comment on whether states must modify their State Implementation Plans (SIPs) to accommodate the rule’s clarifications if it becomes final. It states: “EPA is currently aware of a few states and locals where the applicable SIP-approved regulations expressly preclude project emissions accounting. With respect to this situation, we request comment on whether the EPA should determine that the revisions … that we are proposing here constitute minimum program elements that must be included in order for state and local agency programs implementing part C or part D to be approvable under the SIP.” The proposed rule will be subject to a 60-day public comment period upon publication in the Federal Register.
For further information: https://www.epa.gov/nsr/project-emissions-accounting-1
The Senate Environment and Public Works (EPW) Committee, by a unanimous vote of 21 to 0, approved S. 2302, America’s Transportation Infrastructure Act. The bill authorizes a total of $287 billion dollars over five years, which represents an increase of more than 27 percent over the current Fixing America’s Surface Transportation Act (FAST Act) signed into law on December 4, 2015. The bipartisan legislation invests $10 billion in policies and projects to reduce emissions and improve resilience, and marks the first time ever that a highway bill contains a climate title. Subtitle D (Climate Change) provides for competitive grant programs 1) for charging and fueling infrastructure, 2) to reduce idling and emissions at port facilities, 3) for expanded investment in transportation improvements designed to reduce onroad mobile sources of carbon and to incentivize planning and investments to reduce carbon emissions, 4) to advance solutions to congestion in the most congested areas of the country and 5) to help states improve the resilience of transportation infrastructure. In addition, the Climate Change subtitle adds new strategies for inclusion in the national freight strategic plan to promote resilience, national economic growth and competitiveness and to reduce local air pollution. Further, it supports carbon utilization and direct air capture research as well as federal, state and non-governmental collaboration to construct and develop carbon capture, utilization and sequestration facilities and CO2 pipelines. Finally, Subtitle D extends authorization of the Diesel Emissions Reduction Act (DERA) program through FY 2024 and amends the current law to make clear that EPA, in awarding funds for DERA projects, must recognize that different areas of the country have different diesel concerns. EPW Committee Chairman John Barrasso (R-WY) has indicated that Senate Majority Leader Mitch McConnell (R-KY) is “receptive” to reserving time in the fall for consideration of this bill on the Senate floor.
For further information: https://www.epw.senate.gov/public/_cache/files/2/f/2f412342-ca2b-440f-8053-a3c25c303db3/F0CE190B720489058518305C1D359AC4.america-s-transporation-infrastructure-act-edw19827-.pdf, https://www.epw.senate.gov/public/_cache/files/6/2/625bacd0-b17c-4416-8620-e5ff055b2988/371A1DFB7DCFCE38D52F6E05114599C3.atia-one-pager.pdf, https://www.epw.senate.gov/public/_cache/files/7/7/77bf1657-3a88-472a-b699-59f6dda10802/CF9943C46267BC5DDB1700E857BA2460.bipartisan-section-by-section-plain-language-majority-and-minority-edits-base-bill-final-.pdf and https://www.congress.gov/bill/116th-congress/senate-bill/2302?q=%7B%22search%22%3A%5B%22s+2302%22%5D%7D&s=2&r=1
EPA’s Office of Inspector General (OIG) issued a report in which it finds that testing conducted by the agency’s Office of Transportation and Air Quality (OTAQ) in 2017 – which led to the conclusion that glider trucks emit four to 40 times more NOx and 50 to 450 times more PM than new model year 2014 and 2015 trucks – complied with standard practices.. EPA OTAQ’s test results were in stark contrast to those published in a study conducted at Tennessee Tech, which concluded that emissions from glider trucks are about the same as – and, in some cases, lower than – emissions from original equipment manufacturer certified new engines. EPA OTAQ conducted its testing to compare results with those of the Tennessee Tech study; support the development of a proposed rule to exempt gliders from the provisions of the October 2016 final Phase 2 heavy-duty rulemaking, which, for the first time, required gliders to comply with heavy-duty truck emission standards; and provide emissions data to update EPA’s MOVES model. OIG received two congressional requests raising concerns about EPA OTAQ’s glider testing, including the agency’s collaboration with Volvo, which supplied trucks for the testing, and potential ethics violations by a former EPA OTAQ employee in connection with the Phase 2 rule. In the report issued this week, OIG identifies the following results of its audit: 1) EPA followed standard practices in selecting and testing glider vehicles, 2) EPA’s acquisition of glider vehicles was consistent with the Clean Air Act but inconsistent with delegation of authority limitations, 3) EPA’s employees obtained approval and followed standard practices to conduct glider vehicle testing and submit their test report to the rulemaking docket, 4) OIG found no evidence that EPA staff deleted materials potentially responsive to FOIA requests within the scope of its audit that related to glider vehicle testing and 5) OIG did not identify ethics violations by the former EPA OTAQ employee. With respect to OIG’s finding that EPA did not fully adhere to its delegation of authority regarding acceptance of donated property under Section 104 of the Clean Air Act, OIG notes that EPA’s acquisition of the gliders was consistent with the terms of Section 104, “which uses broad framing to articulate the donation acceptance authority.” Therefore, OIG recommends, “If the text of the delegation no longer reflects agency policy, the delegation and relevant guidance should be revised to allow practical implementation and to address pertinent ethics considerations.”
For further information: https://www.epa.gov/office-inspector-general/report-epas-2017-glider-vehicle-testing-complied-standard-practices
EPA announced in the Federal Register (84 Fed. Reg. 37193) that it will hold a public hearing on the proposed rule that would allow a major source of hazardous air pollutants (HAP) to reclassify itself as an area source after it has limited its HAP emissions to below major-source thresholds. The hearing will be held in Washington, DC on August 15, 2019. The proposal, which would rescind the long-standing Once-In-Always-In policy and which EPA is referring to as “Major MACT to Area” (MM2A), was published in the Federal Register on July 26, 2019. The deadline for public comment is September 24, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-07-31/pdf/2019-16321.pdf, https://www.govinfo.gov/content/pkg/FR-2019-07-26/pdf/2019-14252.pdf and https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112-clean
EPA published in the Federal Register (84 Fed. Reg. 36762) its proposed renewable fuel volume requirements under the Renewable Fuel Standard (RFS) program for total renewable fuel, advanced biofuel and cellulosic biofuel in 2020 and for biomass-based diesel in 2021. Under the proposal, the 2020 total renewable fuel volume would increase to 20.04 billion gallons (from the EPA-established 2019 volume requirement of 19.92 billion gallons), advanced biofuel would increase to 5.04 billion gallons (from 4.92 billion gallons) and cellulosic biofuel would increase to 0.54 billion gallons (from 0.42 billion gallons). Biomass-based diesel in 2021 would remain at 2.43 billion gallons. EPA indicates that it is relying on its statutory waiver authority to propose volume requirements for total renewable fuel, advanced biofuel and cellulosic biofuel that are below the statutory volume targets because projected cellulosic biofuel production volume is less than the applicable volume identified in the statute. In this action, EPA also proposes to address the remand to the agency, by the U.S. Court of Appeals for the District of Columbia Circuit, of the 2016 RFS volume requirement rule by retaining the original 2016 required volumes. In addition, the agency says it is proposing some regulatory changes to the RFS program “to facilitate the implementation of this program in going forward including new pathways, flexibilities for regulated parties, and clarification of existing regulations.” The deadline for comments on this proposal is August 30, 2019. EPA is required to finalize the renewable fuel volume requirements by November 30.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-07-29/pdf/2019-15423.pdf
EPA transmitted to Capitol Hill its fourth report on progress made under the Diesel Emissions Reduction Act (DERA) program. In DERA Fourth Report to Congress: Highlights of the Diesel Emissions Reduction Program, which covers FY 2008 through FY 2016, EPA reports that it awarded $629 million to retrofit or replace 67,300 engines, vehicles and pieces of equipment. This has resulted in a fuel savings of 454 million gallons. The agency estimates that total lifetime emission reductions under the DERA program are 472,700 tons of NOx, 15,490 tons of PM, 17,700 tons of hydrocarbons, 61,550 tons of carbon monoxide and 5,089,170 tons of CO2, with associated monetized health benefits of up to $19 billion.
For further information: https://www.epa.gov/sites/production/files/2019-07/documents/420r19005.pdf
EPA published in the Federal Register (84 Fed. Reg. 36670) proposed Risk and Technology Review (RTR) standards for the Municipal Solid Waste Landfills source category, which were announced on June 27, 2019. The agency is proposing to determine that the risks related to emissions from this source category are acceptable and that there have been no improvements in technologies, processes or practices that would result in further emission reductions. The proposal is intended to clarify that the standards apply during periods of startup, shutdown and malfunction; require that facilities submit electronic copies of compliance reports, including performance tests; clarify language for the 2016 New Source Performance Standards (NSPS) and emission guidelines (EG) regarding compliance with the National Emission Standards for Hazardous Air Pollutants (NESHAP) and further clarify that the NESHAP no longer refers to the 1996 NSPS for the bulk of the rule; and modernize the NESHAP by adopting provisions developed under the 2016 NSPS/EG. The deadline for public comment on the proposal is September 12, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-07-29/pdf/2019-14473.pdf and https://www.epa.gov/stationary-sources-air-pollution/municipal-solid-waste-landfills-national-emission-standards
Senator Kamala Harris (D-CA) and Rep. Alexandria Ocasio-Cortez announced a draft bill, called the Climate Equity Act, to implement portions of the Green New Deal resolution. The legislation targets environmental justice communities, referred to as “frontline communities,” which face a variety of socioeconomic challenges and are particularly vulnerable to environmental impacts. “Climate change is an existential threat – it’s critical we act now to achieve a cleaner, safer, and healthier future. But it is not enough to simply cut emissions and end our reliance on fossil fuels. We must ensure that communities already contending with unsafe drinking water, toxic air, and lack of economic opportunity are not left behind,” said Senator Harris in a press release. Among other things, the bill would require Congress to develop and apply an “equity score” for all climate-related legislation, require additional review to ensure that administrative rules and federal grant programs assess impacts on frontline communities and establish the Office of Climate and Environmental Justice within EPA to ensure that issues affecting frontline communities are considered in rulemakings.
For further information: https://www.harris.senate.gov/imo/media/doc/DISCUSSION%20DRAFT%20-%20Climate%20Equity%20Act.pdf and https://www.harris.senate.gov/news/press-releases/harris-ocasio-cortez-announce-landmark-legislation-to-ensure-green-new-deal-lifts-up-every-community