May 18-24, 2019
In this week's issue:
- House Appropriations Committee Approves Bill with $10-million State/Local Grant Increase (May 22, 2019)
- NACAA Comments on Proposed Stationary Combustion Turbine RTR (May 21, 2019)
- Trump Administration Issues Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions (May 23, 2019)
- House Energy and Commerce Oversight Subcommittee Holds Hearing on Proposed Rescission of MATS “Appropriate and Necessary” Finding (May 21, 2019)
- EPA Publishes Its Proposed Denial of New York’s Section 126 Petition Seeking Emission Reductions from Upwind Sources (May 20, 2019)
- EPA Seeks Comment on State-Federal Coordination in Compliance Assurance (May 23, 2019)
- Groups Threaten to Sue Valero over Texas Refinery Emissions (May 22, 2019)
- Senate Committee Examines Relationship Between Agriculture and Climate Change (May 21, 2019)
- Senate Energy and Natural Resources Committee Examines Opportunities to Expand Renewable Power Generation and Energy Efficiency (May 21, 2019)
- Wheeler Directs EPA Air Office to Develop Cost-Benefit Analysis Proposal (May 22, 2019)
- House Select Committee on the Climate Crisis Holds Hearing on Climate Resiliency (May 23, 2019)
- Top Congressional Democrats Request EPA Fuel Economy Rulemaking Documents (May 23, 2019)
This Week in Review
The House Appropriations Committee marked up and approved the FY 2020 appropriations bill containing EPA funding, including an increase of $10 million in state and local air quality grants under Sections 103/105 of the Clean Air Act. This would raise the total from $228.2 million in FY 2019 to $238.2 million in FY 2020. The Administration’s FY 2020 budget proposal called for $151.96 million in state and local air grants. During full committee mark-up, the total for the Diesel Emissions Reduction Act (DERA) program was increased by $5 million over the amount the Subcommittee on Interior, Environment, and Related Agencies had approved during its mark-up on May 15, 2019, raising the level to $55 million (as compared to $87 million in FY 2019 and $10 million in the Administration’s FY 2020 request). As adopted by the full committee, the bill also calls for the following: $9.52 billion for EPA’s total budget (as compared to $8.85 billion in FY 2019 and $6.1 billion in the Administration’s FY 2020 request); $30 million for Targeted Airshed Grants (as compared to $52 million in FY 2019 and zero in the Administration’s FY 2020 request); and funding for fine particulate matter monitoring to remain under the authority of Section 103, rather than shifting to Section 105 (NACAA has asked Congress to retain this funding under Section 103 authority). Other provisions were not adopted during the mark-up, although several were introduced and voted down, including reductions to EPA’s enforcement budget and a requirement that EPA certify that regulations would not cause net job losses.
For further information: https://docs.house.gov/meetings/AP/AP00/20190522/109552/HMKP-116-AP00-20190522-SD003.pdf (House Draft Report Language for FY 2020 Appropriations Bill –EPA section begins on page 75 and EPA charts begin on page 196) and https://docs.house.gov/meetings/AP/AP00/20190522/109552/BILLS-116–AP–AP00-FY2020_Interior_Approps.pdf (draft bill text)
NACAA has submitted comments on the proposed “National Emission Standards for Hazardous Air Pollutants: Stationary Combustion Turbines Residual Risk and Technology Review” that was published in the Federal Register on April 12, 2019. EPA proposed to determine that the risks from the source category are acceptable and that there are no new cost-effective controls. The proposal would revise the requirements for periods of startup, shutdown and malfunction to be consistent with recent court decisions; require electronic reporting of performance test results and compliance reports; and remove the stay of the standards for new gas-fired stationary combustion turbines. NACAA’s comments expressed concern about the maximum individual risk identified in the proposal, largely due to emissions of ethylene oxide (EtO), and urged EPA to use the updated Integrated Risk Information System (IRIS) risk value for EtO in setting regulations that will address risks from this and other source categories. NACAA also commented on certain elements of EPA’s risk assessment methodology, including the use of census tract centroids in determining long-term exposures, consideration of facility-wide risks and strategies for evaluating acute exposures.
For further information: http://4cleanair.org/sites/default/files/Documents/combustionturbines-05212019.pdf
The White House’s Office of Information and Regulatory Affairs released a biannual report titled “Spring 2019 Unified Agenda of Regulatory and Deregulatory Actions,” which tracks the short- and long-term regulatory actions planned by federal agencies to meet the regulatory goals of the Trump Administration. A number of items in the Spring Unified Agenda relate to clean air issues followed by NACAA members. According to the Agenda, EPA and the National Highway Traffic Safety Administration plan to finalize their rollback of Obama-era clean car standards in June 2019. Absent from the list is information about EPA’s proposed exemption of glider trucks from the Phase 2 Heavy Truck Rule. EPA is still planning to release the Affordable Clean Energy rule in June. The draft of that final rule was recently sent to the White House for review. Following recent memos related to permitting and New Source Review (NSR), the Spring Unified Agenda signals EPA’s intention to release in July proposed rules aimed at changing the “once in, always in” policy and the NSR “project emissions accounting” requirements. The Agenda has EPA releasing a proposed rule by the end of May 2019 on methane emissions from new and modified oil and gas sources. A final rule could come by December 2019. Also in May, EPA plans to issue a proposed rule to extend the compliance date for the Photochemical Assessment Monitoring Stations (PAMS), with a final rule anticipated in September. The “Strengthening Transparency in Regulatory Science” rule is set for completion by December 30, 2019. EPA has moved its effort to change cost-benefit analysis at the agency into its long-term agenda, with a timeline to be determined. A preliminary decision on particulate matter (PM) air quality standards is listed in the Spring Unified Agenda for release by March 2020, with the final decision on whether any changes to the existing PM standards are warranted by the end of 2020. Many of the other rulemakings on the list relate to legally required deadlines for residual risk and technology reviews for various hazardous air pollutants. Unlike the Fall 2018 Unified Agenda, the new report does not include any overall statistics on the number of rules repealed, revised or passed, or detail any specific cost savings to the federal government.
For further information: https://www.reginfo.gov/public/do/eAgendaMain
The House Energy and Commerce Subcommittee on Oversight and Investigations held a hearing on “Undermining Mercury Protections: EPA Endangers Human Health and the Environment,” which focused on EPA’s recent proposal to determine that it is not “appropriate and necessary” to regulate emissions of mercury and other hazardous air pollutants from coal- and oil-fired power plants under Section 112 (i.e., the Mercury and Air Toxics Standards). Witnesses testifying in defense of MATS and/or EPA’s calculations of costs and benefits that resulted in the original “appropriate and necessary” determination included former EPA Office of Air and Radiation Acting Assistant Administrator Janet McCabe, representatives from academia (Boston College, the University of Virginia and MIT) and an environmental group (Moms Clean Air Force). A witness from a law firm that has worked with industry groups, including the National Federation of Independent Business (Boyden Gray & Associates), testified in defense of EPA’s recent proposal to reverse the “appropriate and necessary” finding.
For further information: https://energycommerce.house.gov/committee-activity/hearings/hearing-on-undermining-mercury-protections-epa-endangers-human-health
EPA published in the Federal Register (84 Fed. Reg. 22,787) its May 6th proposal to deny a petition submitted March 12, 2018 by the State of New York under Section 126(b) of the Clean Air Act. The petition requested that EPA make a finding that emissions from hundreds of sources located in nine upwind states significantly contribute to nonattainment and interfere with maintenance of the 2008 and 2015 ozone National Ambient Air Quality Standards (NAAQS) in Chautauqua County and the New York Metropolitan Area, in violation of the CAA “good neighbor” provision (section 110(a)(2)(D)(i)(I)). If EPA were to make such a finding, continued operation of those sources would be permitted only if they comply with emission limits and compliance schedules designed to ensure emission reductions as soon as possible, and no later than three years from the date of the finding. The more than 350 sources at issue are located in the states of Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia. EPA proposes to conclude that New York has not met its burden to demonstrate that the named sources emit or would emit ozone-forming emissions in levels that violate the good neighbor provision. EPA will accept public comments on its proposed denial of the petition through July 15, 2019. It will also hold a public hearing on the proposal on June 11, 2019 in Washington, D.C.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-05-20/pdf/2019-09928.pdf and https://www.epa.gov/ground-level-ozone-pollution/new-york-section-126-petition
In a May 13 Federal Register notice, EPA announced that it is soliciting public comment on its policy titled “Enhancing Planning and Communication Between the EPA and States in Civil Enforcement and Compliance Assurance Work”. This policy would update the January 2018 Interim Guidance document issued by the Office of Enforcement and Compliance Assurance (OECA). The draft policy discusses three areas: 1) it sets goals for periodic joint work planning between EPA regions and states; 2) it articulates the respective roles of state and federal agencies; and 3) it sets out the process for resolving issues that may arise under the policy. In the Federal Register notice (84 Fed. Reg. 20,882) EPA said that the draft policy would serve as an agency planning document and would not impose any legally binding requirements on EPA or any outside parties. Comments are due to EPA by June 12, 2019.
For further information: https://www.federalregister.gov/documents/2019/05/13/2019-09764/enforcement-and-compliance-enhancing-epa-state-planning-and-communication
Three Texas environmental groups – Port Arthur Community Action Network, Environment Texas and the Lone Star Chapter of the Sierra Club – sent a Clean Air Act citizen-suit notice letter to Valero Energy Corporation over thousands of alleged Clean Air Act violations at its Port Arthur refinery. The groups allege that Valero violated emission standards or limitations in its Prevention of Significant Deterioration and New Source Review permits and in federal CAA regulations, all of which are incorporated into Valero’s Title V permits. In 82 pages of charts attached to the letter, the groups identify specific emission limit exceedances that are documented in Valero’s reports to the State of Texas Environmental Electronic Reporting System (STEERS) and its Title V deviation reports and compliance certifications. These include alleged violations of emission limits for carbon monoxide, hydrogen sulfide, nitrogen oxides, opacity, particulate matter, sulfur dioxide and volatile organic compounds. The groups request that Valero meet with them within 45 days to discuss resolution of their claims. Alternatively, they could file a Clean Air Act citizen suit in U.S. district court.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Valero_Notice_Letter_5-22-19.pdf
The Senate Committee on Agriculture, Nutrition and Forestry held a full committee hearing entitled, “Climate Change and the Agriculture Sector.” The hearing featured four witnesses and opened with remarks from committee Chairman Pat Roberts (R-KS). He struck a positive tone and praised the U.S. agriculture sector for its voluntary efforts to address environmental problems like climate change and produce food more efficiently. “I believe agriculture, and American farmers and ranchers who live by the concept of continuous improvement and voluntary-based conservation, can be a model for other industries and other countries on how to address problems like changes in the climate in a practical, and localized, and individual way,” he said. Senator Debbie Stabenow (D-MI), the committee’s ranking member, expressed a similar sentiment in her opening remarks. “While our agricultural industry is uniquely affected by climate change, our farmers and food businesses are also uniquely positioned to address the root causes. With the right support, our producers can cut down on their emissions and profit from the adoption of practices to store more carbon in soil and trees.” Each of the hearing witnesses echoed the themes of innovation and stewardship presented by the committee leaders. Debbie Lyons-Blythe, a cattle rancher speaking on behalf of the National Cattlemen’s Beef Association, described activities cattle ranchers are undertaking to enhance the environment or avoid environmental harms. Frank Mitloehner, Professor in the University of California Davis’s Department of Animal Science, argued that while animal agriculture is responsible for greenhouse gas (GHG) emissions, U.S. agriculture-related GHG emissions are much lower than those from other countries. Further, he stated that U.S. efforts to mitigate GHG emissions would be better focused on reducing food waste than on reducing meat consumption. Matthew Rezac, whose family runs a corn and soybean farm in Nebraska, used his testimony to urge the federal government and private sector to work with farmers to find climate solutions. Tom Vilsack, President and CEO of the U.S. Dairy Export Council, testified about the dairy industry’s efforts to reduce its environmental footprint.
For further information: https://www.agriculture.senate.gov/hearings/climate-change-and-the-agriculture-sector
The Senate Committee on Energy and Natural Resources held a full committee hearing to explore ways to advance U.S. renewable energy and energy efficiency efforts. Senator Lisa Murkowski (R-AK), the committee chairwoman, opened the hearing with prepared remarks celebrating recent increases in U.S. renewable energy generation and efficiency-driven reductions in U.S. energy use. She went on to present illustrative examples of efficiency and renewable energy projects in Alaska. Senator Joe Manchin (D-WV), the committee’s ranking member, offered an opening statement expressing support for polices and programs that encourage renewable energy and energy efficiency, but argued that they should be crafted to help communities that are struggling to respond to changes in the energy sector. The witness panel, which featured five people, included two representatives from the Department of Energy (DOE). Daniel Simmons, Assistant Secretary of Energy for the Office of Energy Efficiency and Renewable Energy, focused his remarks on federal funding for research and innovation. He listed many examples, including DOE funding to encourage new solar technology, more energy efficient manufacturing, advanced vehicle technologies, and advanced energy storage. Dr. Martin Keller, Director of the National Renewable Energy Laboratory, shared recent data on U.S. renewable generation growth as well as research and development needs. Two of the remaining three witnesses spoke in more detail about successful applications of both renewable and efficiency technologies. Dan Conant, president of Solar Holler, presented testimony on his experiences as the founder of a West Virginia-based solar panel company and urged congress to enact a solar tax credit structured to benefit more lower income people. Bruno C. Grunau, chief programs officer at the Cold Climate Housing Research Center, testified about the energy-related challenges of building homes in cold climates and the importance of energy efficiency. Dr. Jason Hartke, President of the Alliance to Save Energy, was the remaining hearing witness. His prepared remarks touted energy savings achieved through decades of efficiency policies but argued that energy efficiency measures offer even larger potential future benefits a vehicle for job creation and as way to address climate change. Hartke presented the committee with a handful of policy recommendations, including more frequent and vigorous oversight of DOE’s energy efficiency programs. He noted that DOE has missed statutory deadlines for 16 energy conservation standards and has proposed to roll back light bulb efficiency standards. He concluded his testimony by urging support for a package of bills that would encourage energy efficiency in the building, manufacturing and industrial sectors.
For further information: https://www.energy.senate.gov/public/index.cfm/hearings-and-business-meetings?ID=F6E96EF9-BCCB-443B-A8C4-A0E93E2C830F
In a memorandum dated May 13, 2019 but made public this week, EPA Administrator Andrew Wheeler has directed the agency’s Office of Air and Radiation (OAR) to issue a regulatory proposal before the end of the year to reform how cost-benefit analyses for regulatory actions are performed. The memorandum indicates that the proposal is to be developed consistent with four principles: (1) ensuring the agency balances benefits and costs in regulatory decision-making; (2) increasing consistency in the interpretation of statutory terminology; (3) providing transparency in the weight assigned to various factors in regulatory decisions; and (4) promoting adherence to best practices in conducting the technical analysis used to inform decisions. The offices of Chemical Safety and Pollution Prevention, Land and Emergency Management and Water are also directed to undertake similar efforts after OAR. The media-specific rulemaking directive breaks from a June 2018 advance notice of proposed rulemaking (ANPRM) announcing and agency-wide rulemaking to change EPA’s cost-benefit procedures. The memorandum notes that that the agency decided to pursue media-specific rule changes in response to public comments to the ANPRM. NACAA submitted comments on August 8, 2018.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Memorandum_05_13_2019_Increasing_Consistency_and_Transparency_in_Considering_Benefits_and_Costs.pdf and http://www.4cleanair.org/sites/default/files/Documents/NACAACBANPRMComments-Final.pdf
The House Select Committee on the Climate Crisis held a hearing entitled, “Creating a Climate Resilient America.” Committee Chairwoman Kathy Castor (D-FL) opened with a statement detailing some of the climate change impacts that threaten communities: coastal flooding, heat waves, and higher frequencies of natural disasters. “These are daunting problems, but the good news is we have solutions. We can protect our communities from the climate crisis, while we cut the carbon pollution that is causing the climate to change in the first place,” she said. Castor went on to list energy efficiency, wetlands restoration, and resilient agricultural practices as dual mitigation and resilience strategies. The hearing featured testimony from Rachel Cleetus, policy director at the Union of Concerned Scientists’ Climate and Energy Program; Noah Diffenbaugh, the Kara J Foundation Professor and Kimmelman Family Senior Fellow at Stanford University; the Honorable Keith Hodges, Virginia state delegate for the 98th District of Virginia; and Matthew Russell, a farmer and the executive director of Iowa Interfaith Power and Light.
For further information: https://climatecrisis.house.gov/committee-activity/hearings/creating-climate-resilient-america
The top Democrats on the Senate Committee on Environment and Public Works and the House Committee on Energy and Commerce have written EPA to demand internal background materials related to the development of EPA’s proposed Safe Affordable Fuel-Efficient Vehicles (SAFE) rule. The letter, signed by Senator Tom Carper (D-DE) and Representative Frank Pallone Jr. (D-NJ), quotes three statements from EPA Administrator Andrew Wheeler to suggest that he has “made numerous public statements … that directly conflict with the information and analyses prepared by EPA’s career experts.” The examples cited include claims by Wheeler that the SAFE rule will save lives, will result in emissions outcomes similar to the fuel economy standards being replaced by the SAFE rule, and that the rule change was not undertaken at the behest of the oil industry. Instead, the letter points to evidence that EPA’s professional staff concluded that the SAFE rule would increase fatalities, notes the rule’s environmental impacts statement projects an 8 billion ton increase in greenhouse gas emissions, and states that the oil industry “stands to reap the most benefit from the proposed rollback because Americans will be forced to spend hundreds of millions of dollars more for gasoline in less efficient cars.”
For further information: https://energycommerce.house.gov/newsroom/press-releases/pallone-carper-demand-documents-other-information-related-to-wheeler-s