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August 28 – September 2, 2022
In this week's issue:
- EPA Makes Findings of Failure to Submit Regional Haze SIPs for the Second Planning Period (August 30, 2022)
- EPA Publishes Proposed Amendments to Risk Management Program Under CAA Section 112(r) (August 31, 2022)
- D.C. Circuit Transfers Case Challenging Ozone “Backsliding” Rules for Dallas and Houston to Fifth Circuit, Setting New Venue Precedent (August 26, 2022)
- CASAC Ozone Panel Restarts NAAQS Review (August 29, 2022)
- Researchers: CO₂ Impacts Are Drastically Undervalued (September 1, 2022)
- Study Predicts Locked-In Greenland Melting Will Result In Large Sea Level Rise (August 29, 2022)
- Science Advisory Board Seeks Panel Members for EJScreen Review (August 30, 2022)
This Week in Review
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EPA published in the Federal Register (87 Fed. Reg. 52,856) a final action finding that fifteen states failed to submit complete regional haze State Implementation Plans (SIPs) for the second planning period. Under the Regional Haze Rule (RHR), which addresses visibility impairment in Class I Federal areas, and revisions to the RHR promulgated in 2017, the SIPs for the second planning period were due on July 31, 2021. EPA’s findings trigger a two-year deadline for EPA to promulgate Federal Implementation Plans (FIPs) for these states, unless a state submits, and EPA approves, a complete SIP that meets the requirements of the RHR and Clean Air Act Sections 169A and 169B. If EPA does promulgate a FIP, it will take action to withdraw the FIP if a state later submits and EPA approves a SIP. The fifteen affected states are: Alabama, Illinois, Iowa, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, Pennsylvania, Rhode Island, Vermont, and Virginia.
For further information: https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18678.pdf and https://www.epa.gov/visibility/findings-failure-submit-regional-haze-state-implementation-plans-second-planning-period
EPA published in the Federal Register (87 Fed. Reg. 53,556) proposed revisions to the Risk Management Program (RMP) under Section 112(r) of the Clean Air Act that would include the reinstatement of certain measures included in a previous version of the rule. The RMP, which covers 140 regulated substances and applies to nearly 12,000 facilities nationwide, was amended in 2017 under the Obama administration with the addition of more stringent measures. Subsequently, the Trump administration changed the rule again in 2019, rescinding some of the 2017 measures. This latest proposal, called the “Safer Communities by Chemical Accident Prevention” rule, includes some of the provisions from the 2017 version and others. Among the provisions in the proposed rule are the following: evaluation of natural hazards and power loss in a facility’s RMP; consideration of the siting of new facilities to provide greater protection; safer technologies and alternatives analyses; root cause analyses and third-party audits for facilities with prior incidents; improved employee engagement, including anonymous reporting; enhanced community notification of chemical releases; and enhanced availability of chemical information. In addition to those measures, EPA is seeking comment on provisions for near-miss analysis and monitoring for fenceline communities. Comments on the proposed rule are due by October 31, 2022. EPA will also hold virtual public hearings on the proposal on September 26, 27 and 28, 2022. The final rule is expected in August 2023.
For further information: https://www.govinfo.gov/content/pkg/FR-2022-08-31/pdf/2022-18249.pdf and https://www.epa.gov/rmp/risk-management-program-safer-communities-chemical-accident-prevention-proposed-rule
The U.S. Court of Appeals for the District of Columbia Circuit declined to rule on the merits of a challenge to EPA rules lifting ozone anti-“backsliding” requirements for the Dallas and Houston areas, instead ruling that the petition for review must be transferred to the Fifth Circuit because EPA did not publish a determination that the actions were ones of “nationwide scope and effect.” Under the Clean Air Act’s venue provisions, the D.C. Circuit has exclusive jurisdiction over challenges to CAA rules that are nationally applicable, or if EPA makes a determination that the rules are based on a determination of nationwide scope and effect and publishes that determination. The environmental group petitioners – Sierra Club, Downwinders at Risk and Texas Environmental Justice Advocacy Services – argued that EPA’s termination of Dallas’s and Houston’s anti-backsliding requirements for ozone violates the CAA and EPA’s regulations. EPA argued that the proper and exclusive venue for the case is the U.S. Court of Appeals for the Fifth Circuit, which considers challenges to rules that are applicable in that region. The D.C. Circuit agreed. It found that the challenged rules are, on their face, “locally or regionally applicable” actions, rejecting the environmental groups’ argument that the rules are nationally applicable because they rest on Clean Air Act interpretations that have no geographic limitation. The court further found that, because EPA did not find and publish a finding that the rules are based on a determination of “nationwide scope and effect,” venue in the D.C. Circuit cannot lie under that alternative prong of the venue statute. The environmental groups argued that EPA’s failure to make and publish a determination of nationwide scope and effect was arbitrary and capricious, and that venue in the D.C. Circuit was therefore proper. In rejecting that argument, the court held, for the first time, that EPA’s decision not to make and publish a finding of nationwide scope and effect is not subject to judicial review. Rather, it found, Congress left that decision solely within EPA’s discretion, and the court may not second-guess the agency’s decision. The D.C. Circuit had never before decided whether EPA’s failure to make and publish a finding of nationwide scope and effect is subject to judicial review, but it had, on two previous occasions, assumed without deciding that review is available. In holding now that this decision is not judicially reviewable, it agreed with the Fifth Circuit, the only other federal appeals court to have decided that issue.
For further information: https://www.4cleanair.org/wp-content/uploads/Sierra-Club-v.-EPA-D.C.-Cir.-Opinion-8-26-22.pdf
The 18-member panel charged with advising EPA’s Clean Air Science Advisory Committee (CASAC) restarted their review of EPA’s 2015 Ozone standards, after a 3 ½ month pause. The May 2022 pause in the work of the CASAC Ozone Review Panel had come after concerns from members of the panel with the pacing and conclusions of EPA’s Integrated Science Assessment (ISA) that had recommended no change to the 70 ppb limit set by EPA in 2015, on the grounds that “a fuller discussion of the science” was needed to assess that finding (see related story in the May 14-20, 2022 edition of the Washington Update). The CASAC panel has scheduled three meetings in September 2022 and is expected to offer recommendations to EPA Administrator Michael Regan in early 2023 on whether any change to the current 70 ppb exposure limit is warranted.
For further information: https://casac.epa.gov/ords/sab/f?p=113:19:12009722973712:::RP,19:P19_ID:976 and https://www.4cleanair.org/wp-content/uploads/CASAC-Ozone-Panel-Chair-Memo-05-13-22.pdf
A multi-year study of the social cost of carbon has found that the costs incurred to the U.S. for each ton of CO₂ emitted into the atmosphere is far higher than the current federal estimate of $51 per ton. A study conducted for the non-profit, non-partisan research entity Resources for the Future (RFF) has placed the actual per-ton impact to the U.S. at $185 per ton. The social cost of carbon measures the monetized value of the damages to society caused by an incremental metric tonne of CO₂ emissions and can be used by governments and other decision-makers for benefit-cost analysis in rulemaking and other actions. The paper, “Comprehensive Evidence Implies a Higher Social Cost of CO2”, appears in the journal Nature Climate Change. RFF says that its mission is to improve environmental, energy, and natural resource decisions through impartial economic research and policy engagement. The RFF-convened study uses “improved probabilistic socioeconomic projections, climate models, damage functions, and discounting methods that collectively reflect theoretically consistent valuation of risk” to explore an updated value. The Biden Administration’s $51 value is provisional, as it continues to update its social cost metrics for greenhouse gases, which were reduced in the previous administration and have also been criticized by the National Academies of Science, Engineering and Medicine as outdated.
For further information: https://www.nature.com/articles/s41586-022-05224-9
Global temperature increases that are already forecast to occur thanks to historical greenhouse gas (GHG) emissions will cause a massive ice sheet in Greenland to raise global sea levels by nearly a foot by 2100, in a melting event driven by human-caused climate change, according to a study published on Monday. The study, “Greenland ice sheet climate disequilibrium and committed sea-level rise”, was published in the journal Nature Climate Change. It predicts that “regardless of twenty-first-century climate pathways”, existing emissions mean at least 3.3% of Greenland’s ice sheet will melt by 2100, the equivalent of 110 trillion tons of ice, leading to a minimum of 10 inches of sea level rise from current levels. The study noted that this is more than twice what was predicted in previous modeling efforts, but that these were based on “imprecise atmospheric and oceanic couplings. Here, we present a complementary approach resolving ice sheet disequilibrium with climate constrained by satellite-derived bare-ice extent, tidewater sector ice flow discharge and surface mass balance data.” Their study focused on the average melting trajectory for 2010-2019, but noted that 2012 was an outlier with extraordinary melting occurring in Greenland. “The high-melt year of 2012 applied in perpetuity yields an ice loss commitment of [seven times as much sea level rise], serving as an ominous prognosis for Greenland’s trajectory through a twenty-first century of warming.”
For further information: https://www.nature.com/articles/s41558-022-01441-2
EPA’s Science Advisory Board (SAB) has issued a call for nominations for experts to form a panel to review the updated EJScreen methodology. EJScreen is EPA’s environmental justice (EJ) mapping and screening tool. The SAB EJScreen Review Panel will consider the EJScreen methodology and updated calculations for the EJ indexes released publicly in 2022and will provide recommendations and expert input. NACAA encourages state and local agency experts to nominate themselves or their qualified colleagues. Nominations should be submitted by September 20, 2022 via the EPA website.
For further information: https://sab.epa.gov/ords/sab/f?p=114:11:7696726777134::::P11_FRNID:773