December 10-16, 2022
In this week's issue:
- EPA Rescinds 2017 Policy on Use of Preconstruction Emission Projections in NSR Enforcement (December 9, 2022)
- Congress Adopts Week-Long Continuing Resolution to Fund Government and Avoid Shutdown (December 15, 2022)
- EPA Proposes Bans on HFCs as Refrigerants (December 9, 2022)
- EPA Issues 2022 Automotive Trends Report (December 12, 2022)
- Environmental Groups Sue EPA Over Failure to Update Ethylene Oxide Toxics Rule for Commercial Sterilizers (December 14, 2022)
- EPA Announces January 10 Public Hearing on Proposed RFS “Set” Rule (December 13, 2022)
- White House Releases Guidebook on Inflation Reduction Act (December 15, 2022)
This Week in Review
EPA Administrator Michael Regan rescinded in its entirety a December 7, 2017 memorandum from former Administrator Scott Pruitt concerning the use of preconstruction emission projections in the agency’s enforcement of New Source Review (NSR) permitting regulations. In the Pruitt memorandum (titled “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability”), EPA announced that it would no longer initiate NSR enforcement actions that “second-guess” emissions projections made by owners or operators undertaking modifications at major sources, so long as the company complied with procedural requirements. It was also known as the “DTE Memorandum,” because it aimed to address “uncertainties” raised in litigation over the permitting of a DTE Energy Co. facility in Michigan. Administrator Regan’s memorandum announcing the rescission of the Pruitt memorandum is brief (two short paragraphs), and does not include the agency’s reasoning for the decision. It notes that the memorandum is not a rule or final agency action and does not preclude any future action or guidance.
For further information: https://www.epa.gov/system/files/documents/2022-12/OAR-23-000-0399.pdf
Congress has adopted a second Continuing Resolution (CR) to extend federal funding at FY 2022 levels (for most programs) until December 23, 2022. The House adopted the CR on a vote of 224 to 201 on December 14, 2022, while the Senate passed it on a vote of 71-19 on December 15, 2022. The first CR, adopted on September 30, 2022, extended federal funding until December 16, 2022. The measures were necessary to avoid government shutdowns in the absence of appropriations legislation to fund the federal government for the entire fiscal year (the federal fiscal year expired on September 30, 2022). According to reports, Congressional leaders have arrived at compromises that may allow them to adopt omnibus legislation that would fund federal programs through the end of FY 2023. The week-long CR is designed to allow Congress time to prepare and pass this legislation. The House of Representatives adopted appropriations bills for portions of the federal budget in July 2022, including EPA, calling for $322.2 million for state and local air grants under Sections 103 and 105 of the Clean Air Act, as well as $100 million in Targeted Airshed Grants. The Senate did not take similar action, but the Senate Appropriations Committee released funding recommendations in July 2022, calling for $265 million in Section 103 and 105 air grants, $61.9 million for Targeted Airshed Grants and $10 million in additional Section 103 grants for wildfire smoke preparedness grants.
For further information:
https://www.congress.gov/bill/117th-congress/house-bill/1437
Taking action under authorities granted by the 2020 American Innovation and Manufacturing (AIM) Act, EPA announced that it will propose to restrict the use of some types of hydrofluorocarbons (HFCs) in refrigerators, air conditioners and other products. The AIM Act gives EPA authority to restrict or ban eighteen HFCs – greenhouse gases with a global warming potential (GWP) that can be thousands of times more climate-damaging than CO2 – from being used in certain products. This regulation (EPA-HQ-OAR-2021-0643) will set a cap on the GWP of gases used in product categories like industrial, retail and residential refrigerators, residential and motor vehicle air conditioners, cold storage warehouses, heat pumps, dehumidifiers, vending machines, ice rinks, foam products such as polystyrene and polyurethane, and aerosol products. EPA is proposing a compliance date for manufacture and import of January 1, 2025, and a ban on sale, distribution and export by January 1, 2026. Motor vehicle air conditioners would have to comply starting with model year 2025. The proposal also offers labeling, reporting and recordkeeping requirements for compliance purposes. EPA is also seeking advance information on potential restrictions for heat pump water heaters and to certain retrofitted equipment in the refrigeration, air conditioning, and other heat pump uses as well as feedback on a third-party auditing program. EPA says that the rule would achieve reductions between 134 and 903 million metric tons of CO2 equivalent by 2050, and yield between $13.1 billion and $56.2 billion in benefits to consumers and between $5 billion and $8 billion in costs to industry. The rule will be open for public comment for 45 days once published in the Federal Register.
For further information:
https://www.epa.gov/climate-hfcs-reduction/technology-transitions
EPA issued its annual Automotive Trends Report, in which the agency provides information about new light-duty vehicle fuel economy, greenhouse gas (GHG) emissions, technology data and the performance of auto manufacturers in meeting federal GHG emission standards. Highlights of this year’s report include that for model year (MY) 2021, vehicle fuel economy remained at a record high of 25.4 miles per gallon (mpg) while new vehicle in-use CO2 emissions decreased to a record low of 347 grams per mile (g/mi). EPA notes, however, that although CO2 emissions are at an all-time low for all vehicle types, some of the fleetwide benefits have been offset by the market shift away from cars and toward sport utility vehicles and pickup trucks. Since 2004, average U.S. fuel economy has increased by 32 percent (6.1 mpg) and CO2 emissions have dropped by 25 percent (114 g/mi), with CO2 emissions declining in 14 in the past 17 years. EPA also reports that all 14 large auto manufacturers complied with the federal light-duty GHG emission standards through at least MY 2020. The agency says technology advancements are helping industry achieve CO2 reductions. In MY 2021, hybrid vehicles were 9 percent of all production – a new high; electric vehicles, plug-in hybrid electrics and fuel cell vehicles, combined, rose to 4 percent of nationwide production.
For further information:
https://www.epa.gov/automotive-trends/download-automotive-trends-report#Summary
A group of environmental organizations has sued EPA, arguing that the agency has failed to review and revise the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Ethylene Oxide Commercial Sterilization and Fumigation Operations in accordance with the requirements of the Clean Air Act (CAA). While the CAA requires EPA to review and revise the standards, if necessary, at least every eight years, the NESHAP for the source category, which was originally issued in 1994, has not been revised since 2006. The suit, led by the California Communities Against Toxics and filed in the U.S. District Court for the District of Columbia Circuit, requests that the court compel EPA to review and revise the standard as expeditiously as possible. The plaintiffs note in the filing that EPA, despite completing an evaluation of the inhalation carcinogenicity of EtO in 2016 and determining that it was “60 times more toxic than previously understood,” has not updated the standard in accordance with the CAA. EPA previously announced that it was in the process of developing a rule to revise the commercial sterilizer NESHAP and had expected to propose it during the late spring or early summer of 2022. However, the rulemaking has been delayed and EPA recently announced in a memorandum to the EPA Office of Inspector General that it expects to propose the rule in February 2024 and issue it in final form by February 2024.
For further information:
https://www.4cleanair.org/wp-content/uploads/enviro-EtO-suit-12-14-22.pdf and https://www.4cleanair.org/wp-content/uploads/EtO-sterilizer-memo-10-14-22.pdf
EPA published in the Federal Register (87 Fed. Reg. 76,194) an announcement of a virtual public hearing to take testimony on the agency’s proposed rule, “Renewable Fuel Standard (RFS) Program: Standards for 2023-2025 and Other Changes” (the proposed RFS “Set” Rule). The hearing will take place beginning at 9 AM Eastern Time on January 10, 2023, with the possibility of a continuation to January 11, if necessary. In this rulemaking package, EPA proposes required volumes for 2023-2025 (and seeks comment on several alternatives), new regulations governing the generation of eRINs (renewable electricity RINs) and other regulatory modifications (e.g., related to biogas) intended to strengthen the program and includes a comprehensive Regulatory Impact Analysis. Those wishing to testify at the January 10 hearing, or attend to listen to testimony, should register with EPA by January 3, 2023. EPA announced the proposed RFS “Set” Rule on December 1, 2022 (see related article in the November 26-December 2, 2022, Washington Update); the proposal has not yet been published in the Federal Register.
For further information:
https://www.govinfo.gov/content/pkg/FR-2022-12-13/pdf/2022-26943.pdf and https://www.epa.gov/renewable-fuel-standard-program/proposed-renewable-fuel-standards-2023-2024-and-2025
The Biden Administration released an Inflation Reduction Act (IRA) guidebook that describes in detail the law’s clean energy and climate-related tax incentives and funding programs. Titled Building a Clean Energy Economy: A Guidebook to the Inflation Reduction Act’s Investments in Clean Energy and Climate Action, the resource provides an overview of the clean energy, climate mitigation and resilience, agriculture and conservation-related tax incentives and investment programs in the IRA, including who is eligible to apply for funding and for what activities. It is organized into chapters that focus on individual IRA programs, each of which includes a brief program description and a summary of the program’s eligible uses, potential beneficiaries and other information. In a letter at the beginning of the guidebook, John Podesta, Senior Advisor to the President for Clean Energy Innovation and Implementation, states that the federal government will coordinate closely with state, local and Tribal governments to maximize IRA benefits and leverage complementary investments in the Bipartisan Infrastructure Law. He writes: “State, local and Tribal governments are in the best position to understand the unique needs of their communities, match those needs with available funding streams, and build a strong, sustainable development strategy.”
For further information: https://www.whitehouse.gov/wp-content/uploads/2022/12/Inflation-Reduction-Act-Guidebook.pdf