March 16-22, 2019
In this week's issue:
- EPA Holds Public Hearing on MATS Proposal, State AGs and City Attorneys Request Additional Hearings (March 18, 2019)
- Bipartisan Group of Senators Calls for Leaving MATS in Place (March 18, 2019)
- EPA Defends Ozone and PM2.5 Significant Impact Levels Guidance in D.C. Circuit Brief (March 18, 2019)
- House Environment and Climate Change Subcommittee Chairman Releases Climate Action Framework (March 21, 2019)
- EPA Formally Announces Public Hearing on E15 Proposal (March 18, 2019)
- EPA Publishes Final Decision to Retain Existing SOx NAAQS Without Revision (March 18, 2019)
- EPA Publishes Final Risk and Technology Review Standards for Several Source Categories (March 15, 2019)
- U.S. Renewable Generation Grew to Record Levels in 2018 (March 19, 2019)
- Federal Court Halts Drilling Under Wyoming Oil and Gas Leases for Failure to Review Climate Impacts (March 19, 2019)
This Week in Review
EPA held a public hearing in Washington, DC on its February 7, 2019 proposed determination 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 the Mercury and Air Toxics Standards (MATS) (84 Fed. Reg. 2670). Nearly 150 people testified, representing environmental organizations, public interest groups, industry, state government officials and individuals. Most of the witnesses spoke in opposition to the EPA proposal and in defense of the MATS rule. This included Jillian Riley of the Massachusetts Attorney General’s office, representing a coalition of 23 states, who noted that EPA does not have the authority to rescind the appropriate and necessary determination unless the agency can demonstrate that the sources do not pose an unacceptable risk to human health or the environment, which it has not done. Senator Tom Carper (D-DE) also spoke in defense of the MATS rule and opposed EPA’s latest proposal. Among the few speaking in defense of EPA’s proposal was a representative of Murray Energy, who expressed support for the proposal to rescind the appropriate and necessary determination and, further, called for EPA to overturn the MATS rule itself, which EPA has not proposed. The National Mining Association witness also supported the EPA proposal but did not call for rescinding MATS, since it is already mostly implemented. However, the association advocated changes to future cost analyses for other rules. Meanwhile, a group of 19 state Attorneys General and city attorneys sent a letter to EPA Administrator Andrew Wheeler requesting that the agency hold at least two additional public hearings on the MATS proposal. The group argues in its letter that such a significant rulemaking warrants multiple hearings and suggests that EPA also convene a hearing in Chicago and at least one in the Northeast (e.g., Boston or New York City). The signers included the Attorneys General of Massachusetts, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia and Washington and city attorneys for Chicago and New York.
For further information: https://www.epa.gov/sites/production/files/2019-03/documents/mats-public-hearing_preliminary_speaker_list_-_18march2019.pdf, https://www.govinfo.gov/content/pkg/FR-2019-02-07/pdf/2019-00936.pdf and http://4cleanair.org/sites/default/files/Documents/MultistateLetterREAdditionalMATSHearings-03182019.pdf
A bipartisan group of six senators sent a letter to EPA Administrator Andrew Wheeler opposing any action that could roll back the Mercury and Air Toxics Standards (MATS) rule. Specifically, they urged the Administrator to withdraw EPA’s proposed finding (published in the Federal Register on February 7, 2019) that it is not “appropriate and necessary” to regulate emissions of mercury and other hazardous air pollutants from coal- and oil-fired power plants. The signers of the letter were Senators Lamar Alexander (R-TN), Joe Manchin (D-WV), Thom Tillis (R-NC), Susan Collins (R-ME), Tom Carper (D-DE) and Sherrod Brown (D-OH). The senators expressed support for MATS because “cleaner air means better health, a better economy, and better jobs for residents of our states” and the rule has already resulted in significant public health benefits. They noted that if EPA finds it is not “appropriate and necessary” to regulate, it could lead to MATS being rescinded or weakened and, thus, result in installed emission controls being turned off, “erasing” the benefits the rule has provided. Furthermore, the utility industry has already complied with the rule and has expressed support for leaving MATS in place. Maintaining the rule would provide much-needed regulatory certainty for the regulated community and consumers.
For further information: https://www.alexander.senate.gov/public/_cache/files/19d7d59f-8a58-468b-85d7-248bd26ecc7d/dear-administrator-wheeler-final-w-signatures.pdf
In a brief filed in the U.S. Court of Appeals for the District of Columbia Circuit EPA defended its April 2018 Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration (PSD) Program (SILs Guidance) against arguments made by the Sierra Club, which has urged the court to vacate the document. In the SILs Guidance, EPA recommends threshold emission levels below which a new or modified stationary source’s emissions can be presumed to not cause or contribute to a violation of the ozone or PM2.5 National Ambient Air Quality Standards (NAAQS) or PSD increments. Sierra Club, which has long maintained that SILs are not authorized by the Clean Air Act, petitioned for judicial review of the guidance and argued in its November 2018 opening brief that it creates an unlawful “exemption” from the PSD permitting program’s modeling requirements. In response, EPA argues in its brief that the SILs Guidance is not a “final agency action” subject to judicial review but, rather, makes only recommendations and supplies a supporting rationale. The guidance is not binding in any particular permit application review, has no legal effect and does not substitute for or reduce the legal discretion of individual permitting authorities in reviewing each PSD permit application and making permitting decisions subject to judicial review, the agency says. EPA also argues that the term “contribute” in the Clean Air Act does not have a plain and obvious meaning and that the agency reasonably interprets that language as allowing permitting authorities to conclude that modeled air quality impacts below the recommended SILs do not cause or contribute to a violation in a modeled area.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Sierra_Club_v_EPA-EPA_brief_3-18-19.pdf
Representative Paul Tonko (D-NY), Chairman of the House Energy and Commerce Subcommittee on the Environment and Climate Change, released a “framework” document outlining principles for a “comprehensive national climate action plan.” The document includes the following nine principles for climate action: 1) achieving net-zero greenhouse gas emissions no later than 2050; 2) expanding clean energy industries to create new jobs; 3) investing federal dollars in clean energy technology research; 4) addressing disproportionate climate and environmental impacts in environmental justice communities; 5) protecting low-income households from climate harms; 6) strengthening climate resilience in communities; 7) empowering state, local, tribal and territorial governments; 8) avoiding harm to entities that take early action to address climate change; and 9) providing policy certainty for stakeholders. According to Tonko, “any climate proposal we consider should be measured against [these] principles.”
For further information: http://www.4cleanair.org/sites/default/files/Documents/Tonko_Climate_Action_Framework.pdf
EPA announced in the Federal Register (84 Fed. Reg. 9734) details of the public hearing on the agency’s recent proposal to grant a 1-pound-per-square-inch Reid Vapor Pressure waiver to E15 (gasoline containing 15 percent ethanol) during the summer months (i.e., the high ozone season). The hearing will take place on March 29, 2019 in Ypsilanti, Michigan. If you wish to testify at the hearing, send an email to RFS-Hearing@epa.gov. The proposal, which has not yet been published in the Federal Register, would allow the sale of E15 from June 1 through September 15, heretofore prohibited under the Clean Air Act, based on a new agency interpretation of sections 211(h)(4) and 211(f). As a result, E15 would be available for sale year round. The proposal also includes provisions to modify certain elements of the Renewable Fuel Standard to improve how renewable identification number markets function and prevent market manipulation.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-03-18/pdf/2019-05034.pdf and https://www.epa.gov/renewable-fuelstandard-program/notice-proposed-rulemaking-modifications-fuel-regulationsprovide
EPA published in the Federal Register (84 Fed. Reg. 9866) its final decision to retain, without revision, the primary National Ambient Air Quality Standard (NAAQS) for sulfur oxides (SOx) set in 2010. The standard, therefore, will remain 75 parts per billion, as the 99th percentile of daily maximum 1-hour sulfur dioxide (SO2) concentrations, averaged over three years. When it was adopted in 2010, the 1-hour SOx standard was significantly more stringent than the prior 24-hour and annual standards, which were revoked. During its just-completed review of the SOx NAAQS, EPA’s Clean Air Scientific Advisory Committee concluded that the newly available scientific evidence and exposure/risk information supports retaining the current primary standard without revision. The Administrator concluded that the standard continues to protect public health with an adequate margin of safety, including the health of people with asthma following short-term exposure to SO2 in ambient air. This final action takes effect April 17, 2019.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-03-18/pdf/2019-03855.pdf
EPA published in the Federal Register (84 Fed. Reg. 9590) the final Risk and Technology Review standards for the Surface Coating of Large Appliances; Printing, Coating, and Dyeing of Fabrics and Other Textiles; and Surface Coating of Metal Furniture source categories. The final standards were announced on December 20, 2019. EPA has determined that existing MACT standards result in risks that are acceptable and provide an ample margin of safety to protect public health. Additionally, the technology review of the standards did not identify developments that would further reduce hazardous air pollution. The rule also includes provisions related to emissions during startup, shutdown and malfunction; electronic reporting for performance test results and compliance reports; the addition of EPA Method 18 and updates to several measurement methods; and the addition of requirements for periodic performance testing.
For further information: https://www.govinfo.gov/content/pkg/FR-2019-03-15/pdf/2019-03560.pdf and https://www.epa.gov/stationary-sources-air-pollution/surface-coatings-large-appliances-printing-coating-and-dyeing
Data released by the Energy Information Administration (EIA) of the U.S. Department of Energy shows that renewable energy generation reached record levels in 2018. Generation from renewable resources grew to 742 million megawatt hours (MWh) last year, comprising 17.6 percent of U.S. electricity generation. The total represents a near doubling of renewable generation since 2008 when hydro-based power made up the largest share of renewable generation. New solar and wind generation capacity has accounted for 90 percent of the growth, with wind capacity growing from 25 gigawatts (GW) in 2008 to 94 GW in 2018 and solar capacity increasing from less than 1 GW to 51 GW over the same period. EIA attributes the growth to a combination of federal tax policies, state renewable portfolio standards and declining technology costs.
For further information: https://www.eia.gov/todayinenergy/detail.php?id=38752
A judge for the U.S. District Court for the District of Columbia halted a Bureau of Land Management (BLM) oil and gas leasing program in Wyoming for failing to adequately consider the greenhouse gas emissions impacts. While the court did not determine whether BLM had the authority to issue the leases in question, it concluded that environmental impact analyses accompanying them did not meet the requirements of the National Environmental Policy Act. “BLM summarized the potential on-the-ground impacts of climate change in the state, the region, and across the country. It failed, however, to provide the information necessary for the public and agency decisionmakers to understand the degree to which the leasing decisions at issue would contribute to those impacts.” The order, issued by Judge Rudolph Contreras, halts new drilling on more than 300,000 acres of parcels leased in 2016 in Wyoming but leaves the leases intact while BLM conducts a revised climate analysis. The case, captioned WildEarth Guardians v. Zinke (No. 16-1724), includes challenges to more than an additional 150,000 acres of oil and gas leases in Colorado and Utah, but the decision does not affect those claims.
For further information: http://www.4cleanair.org/sites/default/files/Documents/Wildearth_v_Zinke_Memorandum_Opinion_19_March_2019.pdf