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February 11-17, 2023
In this week's issue:
- EPA Reaffirms MATS “Appropriate and Necessary” Supplemental Finding (February 17, 2023)
- NACAA Offers Comments On EPA’s Proposed Oil & Gas Supplemental Rulemaking (February 13, 2023)
- NACAA Comments on EPA’s Proposed “Reconsideration of Fugitive Emissions” NSR Permitting Rule (February 14, 2023)
- EPA Publishes Final Disapprovals of Good Neighbor SIPs (February 13, 2023)
- EPA Proposes Startup, Shutdown and Malfunction SIP Calls (February 15, 2023)
- EPA Announces Upcoming Public Meetings of CASAC Ozone Panel as Reconsideration of Ozone NAAQS Continues (February 13, 2023)
- Executive Order Expands Federal Environmental Justice Ambitions (February 15, 2023)
- Senate Budget Committee Hosts Climate Hearing (February 15, 2023)
- EPA Unveils New Websites for IRA Grants (February 15, 2023)
This Week in Review
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EPA issued a final rule that reaffirms its 2016 supplemental finding that it remains “appropriate and necessary” to regulate emissions of hazardous air pollutants (HAPs) from coal- and oil-fired electric utility steam generating units (EGUs) under Section 112 of the Clean Air Act. The original appropriate and necessary finding, issued in 2000, formed the legal underpinning for the 2012 Mercury and Air Toxics Standards (MATS). EPA’s 2016 supplemental finding, which took costs into consideration following a decision of the U.S. Supreme Court, concluded that the finding remained correct. Subsequently, however, the agency determined in the May 22, 2020 MATS Residual and Technology Review (RTR) rule that it was not necessary and appropriate to regulate EGU HAP emissions. That 2020 finding was based on a cost-benefit analysis that considered only “direct” benefits from reducing mercury and other HAPs and not from decreasing particulate matter. In its newly issued final rule reaffirming that it does remain appropriate and necessary to regulate power plants under Section 112, EPA considered updated information on the public health burden associated with HAP emissions from coal- and oil-fired EGUs as well as the costs of reducing those emissions under MATS; it also concluded that the framework applied in the 2020 finding was “ill-suited to assessing and comparing the full range of advantages and disadvantages” of HAP emissions. EPA is also planning to release a proposed rule that reviews the RTR portion of the 2020 rule. In that proposal, the agency will determine whether more stringent protections from power-plant HAP emissions are feasible and warranted. On February 6, 2023, EPA sent a draft MATS RTR proposal to the Office of Management and Budget for interagency review.
For further information:
NACAA has submitted a comment letter to regulations.gov regarding the EPA’s December 2022 supplemental proposal “Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review” (EPA-HQ-OAR-2021-0317). EPA’s original November 2021 proposal had omitted regulatory text, impact analyses, and other provisions, and the supplemental included these as well as introducing numerous new provisions, including greater stakeholder involvement requirements, provisions concerning the submittal of state plans, and a new “Super Emitter Response Program” that would enable 3rd parties to trigger regulatory actions when specified criteria were met. NACAA’s comments were supportive of the greenhouse gas, criteria, and other pollutant emission reductions that could result from this program, but the comments also raised a number of technical and policy implementation concerns and recommendations. These include improving EPA’s consultation with state and local agencies, and assuring that new actions by our agencies are supported by adequate funding. The letter raises questions about ambiguities about the meaningful engagement and state planning provisions of the proposal, and highlights concerns with the proposed Super Emitters program. The letter identifies several areas that EPA should clarify and provide guidance for before finalizing the proposal.
For further information:
NACAA submitted comments on EPA’s proposed rule, “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Reconsideration of Fugitive Emissions Rule,” 87 Fed. Reg. 62,322 (Oct. 14, 2022). The proposal would repeal EPA’s 2008 Fugitive Emissions Rule (which has been subject to an administrative stay since 2009) and affirm that all existing major stationary sources are required to count fugitive emissions toward total emissions when determining whether a change is a “major modification” under the PSD and NNSR permitting programs. The proposed rule would also remove a regulatory provision dating from 1980 that exempts certain stationary sources from substantive major NSR requirements if the only reason a change is considered a “major modification” is due to the inclusion of fugitive emissions. In its comment letter, NACAA expressed strong support for the rescission of the Fugitive Emissions Rule and agreed with EPA that the proposed rule changes should be considered minimum NSR program elements. The association urged EPA to provide guidance and analysis to help identify specific State Implementation Plan provisions that EPA believes will need to be repealed. NACAA also suggested that this rulemaking presents an opportune time for EPA to evaluate its use of the term “fugitive emissions” and review and update related policies and guidance documents.
For further information:
EPA published in the Federal Register (88 Fed. Reg. 9,336) a single final action fully disapproving 19 good neighbor State Implementation Plans (SIP) – also known as interstate transport SIPs – for the 2015 ozone National Ambient Air Quality Standards and partially approving and partially disapproving two others. Disapproval by EPA of these SIPs sets a two-year deadline for the agency to promulgate for each affected state a Federal Implementation Plan that addresses the relevant requirements unless EPA finds that a subsequent SIP submittal from a state meets all necessary requirements and approves that SIP. EPA states in its final action that the SIP disapprovals do not start the two-year “clock” for mandatory sanctions under the Clean Air Act. EPA also notes that it is deferring final action on its proposed disapproval of good neighbor SIPs from Tennessee and Wyoming. At the agency’s request, the court granted an extension of time (until December 2023) for such final action. This final rule was signed by Administrator Michael S. Regan on the January 31, 2023 court-ordered deadline for final action on the SIP disapprovals that were proposed in February, May and October 2022. The states for which the SIPs were disapproved are Alabama, Arkansas, California, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Oklahoma, Texas, Utah and West Virginia. The states for which SIPs were partially approved and partially disapproved are Minnesota and Wisconsin. The effective date of this action if March 15, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-02-13/pdf/2023-02407.pdf
and
EPA issued proposed actions relating to ten State Implementation Plans (SIPs) for provisions addressing emissions that occur during periods of startup, shutdown and malfunction (SSM). The actions are consistent with the SSM policy announced in EPA’s 2015 “SSM SIP Action,” which was withdrawn in 2020 but reinstated in a September 20, 2021 memorandum. Under that policy, SIP provisions cannot include exemptions or provide affirmative defenses for excess emissions during SSM events. EPA is now proposing to reinstate its findings of substantial inadequacy (SIP calls) that were withdrawn in 2020 for the states of Texas, North Carolina and Iowa. In addition, EPA is proposing to issue new findings of substantial inadequacy of SSM provisions and SIP calls to: Connecticut; Maine; Shelby County, TN; North Carolina; Bumcombe County, NC; Mecklenburg County, NC; Wisconsin; and Louisiana. If the SIP calls are finalized, the final action will set deadlines by which the affected state and local air agencies will have to submit revised SIPs; EPA is proposing a deadline of 18 months after the final findings are published. EPA says it is “committed to working with the affected air agencies to support the development and submission of their state plan revisions and to ensure continued progress toward cleaner air.” EPA’s proposed SIP calls will be subject to a 60-day public comment period upon publication in the Federal Register.
For further information:
EPA’s Science Advisory Board staff announced two public meetings of the Clean Air Scientific Advisory Committee’s (CASAC) Ozone Panel, which continues its work to provide advice to EPA on the agency’s ongoing reconsideration of the December 2020 final decision to retain the current ozone National Ambient Air Quality Standards (NAAQS) without revision. During the first meeting, to be held virtually on March 2, 2023, the CASAC Ozone Panel will be briefed by EPA staff on the Policy Assessment (PA) for the Reconsideration of the Ozone National Ambient Air Quality Standards, External Review Draft Version 2. During the second meeting, to be held in person in Durham, NC and virtually on March 29 and 30, 2023, the Panel will peer review the PA and, on March 29, hear oral statements from members of the public wishing to provide them; the deadline for registering to speak is March 22, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-02-13/pdf/2023-02983.pdf,
https://casac.epa.gov/ords/sab/f?p=113:19:10824448232752:::RP,19:P19_ID:986
and
https://casac.epa.gov/ords/sab/f?p=113:19:14069931597721:::RP,19:P19_ID:985
President Joe Biden has signed an executive order (EO) that expands on his administration’s earlier EO 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government). The new EO, “Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government”, requires federal agencies to produce annual plans to ensure that underserved communities can benefit from their policies. It also requires agencies to designate senior leaders who are accountable for advancing equity. Agencies are directed to produce public equity action plans every year to “assess and include actions to address the barriers underserved communities may face in accessing and benefitting from the agency’s policies, programs, and activities.” Each agency must establish teams to coordinate their equity initiatives. The EO also established a White House Steering Committee on Equity “to ensure that equity and environmental justice efforts are consistent and mutually reinforcing.”
For further information:
and
The U.S. Senate Committee on the Budget held a hearing titled “Climate-Related Economic Risks and Their Costs to the Federal Budget and the Global Economy,” the first hearing under the Chairmanship of longtime Senate climate hawk Sen. Sheldon Whitehouse (D-RI). Witnesses at the hearing cited financial implications of the changing climate and increasingly extreme weather conditions on the economy, including reducing real estate values, decreasing crop yields and disrupting supply chains, as well as sparking new health emergencies. The chair of the Commodity Futures Trading Commission’s Climate-Related Market Risk Subcommittee, Robert Litterman, noted that climate change is likely to reduce gross domestic product by 4 percent by the year 2100. Mark Carney, the former governor of the central banks of England and Canada, said that governments will need to invest trillions in adaptation and resilience strategies against extreme weather. Republican members of the Budget Committee were avoided denying climate change and the human causes, but called for the committee to focus on other budget issues such as deficit reduction and drafting annual spending blueprints. “I acknowledge that a changing climate is a historic and scientific fact,” said ranking member Sen. Chuck Grassley (R-IA), “as we look to address climate and energy issues, our nation must also address our fiscal health.” Sen. Mitt Romney (R-UT) pointed to the relatively small contribution modeled for the U.S. relative to future emissions from China, India, and the rest of the world. “If we want to do something serious about global emissions, we have to put a price on carbon,” Romney said.
For further information:
EPA has released websites for several grant-funded provisions of the 2022 Inflation Reduction Act (IRA). These include information for the Air Pollution Reduction Funding and the Climate Pollution Reduction Grants (CPRG) program. These programs will provide funding to states, territories, tribes, air pollution control agencies, and local governments to engage in emission reduction programs, improve monitoring, develop and implement plans for reducing greenhouse gas emissions and advance other programs that reduce air pollution. State Clean Air Act Grants will increase Section 103 funding for states by $25 million, which will be allocated under the formula used for Section 105 (and will not require matching.) In addition, the CPRG will offer $5 billion to support efforts by states, territories, municipalities, tribes, and groups thereof to develop greenhouse gas (GHG) reduction plans and implement strategies. This two-staged grant program provides funding of $250 million for noncompetitive planning grants, and $4.6 billion for competitive implementation grants. EPA’s website will host information including opt-in and application guidance starting March 1, 2023.
For further information:
https://www.epa.gov/inflation-reduction-act/climate-pollution-reduction-grants