June 24-30, 2023
In this week's issue:
- EPA Drops Civil Rights Investigations of Air Permits in Louisiana (June 27, 2023)
- D.C. Circuit Upholds EPA’s Aircraft GHG Rule (June 30, 2023)
- Eighteen States, DC, Two Cities Seek Leave to Intervene in Challenge of EPA Waivers of Preemption for California Vehicle Regulations (June 28, 2023)
- Ten State AGs and Local Air Agency Notify EPA of Intent to Sue for Failure to Update Residential Wood Heater NSPS (June 29, 2023)
- Bipartisan Bill to Reauthorize DERA Introduced in Senate (June 22, 2023)
- ACEEE Publishes Annual State Transportation Electrification Scorecard (June 28, 2023)
- EPA Launches Updates to EJSCREEN; Schedules Training Sessions (June 26, 2023)
- EPA Proposes Electronic Reporting Requirements for Reciprocating Internal Combustion Engines (June 26, 2023)
- EPA Extends Public Comment Period for HON and Related Air-Toxics Proposals (June 26, 2023)
- EPA Extends Public Comment Period for Proposed Taconite Iron Ore Processing Standards (June 28, 2023)
- EPA Announces $7 Billion Opportunity for “Solar for All” Program (June 28, 2023)
This Week in Review
In a notice to the U.S. Circuit Court of Appeals for the Western Louisiana District, EPA said that it has ceased investigations into whether air permits issued by Louisiana violated civil rights, and suggested that the state drop its lawsuit against EPA alleging federal overreach to pursue environmental justice. The June 27, 2023 notice filed with the court notes that EPA said it had told the state’s departments of Health and Environmental Quality that it had discontinued its civil rights investigations opened in April 2022. These investigations under Title VI of the Civil Rights Act came after the state issued fourteen air permits for the Formosa Plastics industrial complex planned in St. James Parish and approved actions by Denka Performance Elastomer LLC in St. John the Baptist Parish. In an October 12, 2022 letter to Louisiana, EPA stated that “based on facts discovered thus far during EPA’s investigation, EPA issues this Letter to present significant evidence suggesting that the Departments’ actions or inactions have resulted and continue to result in disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and the Industrial Corridor.” However, EPA said in its June 27, 2023 notice that it was administratively closing the investigations without reporting any findings. It referenced a June 27, 2023 letter that says “These Complaints allege civil rights violations by the Louisiana Department of Environmental Quality (LDEQ) involving its program for air pollution regulation. As explained below, based on information now available including multiple significant developments, OECRC is closing these Complaints administratively as of the date of this letter. As a result of its administrative closure, EPA will not initiate under Title VI or other civil rights laws any further action, enforcement or otherwise, in response to these Complaints.” The Title VI investigations into LDEQ and the Department of Health were the principal subjects of a lawsuit Louisiana filed against the EPA in on May 24, 2023 in the U.S. District Court for the Western District of Louisiana (Louisiana v. U.S. Environmental Protection Agency et al., USCA Case No. 2:23-cv-00692). In that suit, Louisiana argued that EPA had overstepped its authority and the state filed a motion for a preliminary injunction to prevent the adoption of the environmental justice policies. EPA’s June 27, 2023 court filing calls for the court to dismiss a July deadline for the injunction ruling. “Because these complaints have not been resolved and the investigations closed without any finding of a Title VI violation, the referenced July 11, 2023, deadline has no significance and any urgency underlying plaintiff’s demand for expedited relief has abated,” the EPA said in its court notice.
For further information:
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https://www.4cleanair.org/wp-content/uploads/Louisiana-v-EPA-complaint-usdc-western-louisiana.pdf
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The U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in State of California v. EPA, in which petitioners challenged EPA’s January 11, 2021, final rule, “Control of Air Pollution from Airplanes and Airplane Engines: GHG Emission Standards and Test Procedures”(86 Fed. Reg. 2136). In the rule, EPA adopted, on a federal basis, the aircraft greenhouse gas (GHG) emission standards adopted by the International Civil Aviation Organization (ICAO) in 2017. On January 15, 2021, the Attorneys General (AGs) of 13 states filed a petition in the D.C. Circuit challenging EPA’s final rule. In a press statement, the AGs explained their argument that the final rule – which “would result in no reductions in emissions as compared to business-as-usual” notwithstanding that the aviation industry is the largest unregulated source of GHG emissions in the U.S. – is “arbitrary, capricious, and contrary to law.” The AGs from California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Vermont, Washington and the District of Columbia further noted, “Given the long lead time necessary for manufacturers to develop new aircraft designs, the EPA’s final rule would effectively lock in meaningless standards for years – as the climate emergency grows increasingly dire. The Center for Biological Diversity, in a separate petition, also challenged the rule. On behalf of the three-judge panel that heard the case, Judge Neomi Rao wrote in the opinion, “The operative language of section 231 [of the Clean Air Act] is relatively simple. Section 231(a)(2)(A) states that, after making an endangerment finding for a given pollutant, the EPA ‘shall, from time to time, issue proposed emission standards’ for that pollutant. 42 U.S.C. § 7571(a)(2)(A). Section 231 does not specify the substantive content of the standards, nor does it specify any factors the agency must consider.” The court therefore held, “that the Aircraft Rule is within the EPA’s authority under section 231 of the Clean Air Act and that the agency reasonably explained its decision to harmonize domestic regulation with the ICAO standards. Accordingly, we deny the petitions for review.”
For further information:
https://www.govinfo.gov/content/pkg/FR-2021-01-11/pdf/2020-28882.pdf
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A coalition of 18 states, the District of Columbia and two cities filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit for leave to intervene in Western States Trucking Association v. EPA in support of respondent EPA. Petitioners in this case – which also include, among others, a coalition of 19 states, the Owner-Operator Independent Drivers Association and several groups of trade associations (see related article in the June 3-9, 2023 Washington Update) – are challenging EPA’s April 6, 2023, final action (88 Fed. Reg. 20,688) granting waivers to California to enforce four of the state’s mobile source regulations: 1) the Advanced Clean Trucks Regulation, 2) the Zero-Emission Airport Shuttle Regulation, 3) the Zero-Emission Powertrain Certification Regulation and 4) the 2018 Heavy-Duty Emissions Warranty Amendments. The movant-intervenors are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, the District of Columbia, the City of Los Angeles and the City of New York.
For further information:
The Attorneys General of 10 states and one local clean air agency provided EPA with 60 days’ notice of their intent to sue over EPA’s failure to fulfill its statutory obligations regarding the review of the New Source Performance Standards (NSPS) for Residential Wood Heaters (RWHs). Under Clean Air Act (CAA) section 111(b) EPA is required to review and, as appropriate, revise NSPS at least every eight years. EPA published a final rule on the outcome of its last review of the NSPS for RWHs on March 16, 2015. That action was completed under court order and marked the only time the RWH NSPS for particulate matter were reviewed since they were first adopted in 1988. In March 2021, the Northeast States for Coordinated Air Use Management (NESCAUM) and the Alaska Department of Environmental Conservation (ADEC) collaborated on an assessment of more than 250 certified RWHs to evaluate EPA’s compliance program for the 2015 NSPS. NESCAUM and ADEC found deficiencies in every one of the certification test reports and, further, that EPA’s certification program did not ensure that new RWHs subject to the 2015 NSPS are cleaner than devices sold under the 1988 NSPS. These findings were corroborated by EPA’s Office of Inspector General in a February 2023 report, titled “The EPA’s Residential Wood Heater Program Does Not Provide Reasonable Assurance that Heaters Are Properly Tested and Certified Before Reaching Consumers.” At this time, according to the states, “EPA has not even started the required notice-and-comment rulemaking proceeding to review the scope or stringency of those standards and make the necessary revisions to ensure they result in actual emissions reductions.” Therefore, they “request that EPA promptly propose and finalize revised performance standards for wood heaters under 40 C.F.R. Part 60, Subpart AAA, QQQQ. The States also request that EPA promptly revise the testing and certification process for those wood heaters.” The states further notify EPA that their letter “constitutes notice from the States, pursuant to section 304 of the Clean Air Act and Title 40, Part 54 of the Code of Federal Regulations, of their intent to commence a civil action to enforce the Act due to EPA’s failure to undertake these non-discretionary duties.”
For further information: https://www.4cleanair.org/wp-content/uploads/RWHs_NSPS-State_Local_NOI_to_Sue_EPA-062923.pdf
Senate Environment and Public Works (EPW) Committee Chair Tom Carper (D-DE) and Ranking Member Shelley Moore Capito (R-WV) introduced the Diesel Emissions Reduction Act (DERA) of 2023. S. 2195 would reauthorize the DERA program, first established under the Energy Policy Act of 2005, through Fiscal Year (FY) 2029 at $100 million per year (the same as the current authorization level). DERA was last reauthorized under the Consolidated Appropriations Act of 2021 for up to $100 million annually through FY 2024. Senators Corey Booker (D-NJ) and John Barrasso (R-WY) joined Senators Carper and Moore in introducing the bill.
For further information:
https://www.congress.gov/bill/118th-congress/senate-bill/2195?s=1&r=1
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The American Council for an Energy-Efficient Environment (ACEEE) published the “2023 State Transportation Electrification Scorecard” in which it “evaluates states’ EV [electric vehicle] policies and identifies which states are taking steps to reduce barriers to EV adoption and areas where progress is needed” and concludes that “[e]very state should step up to enable equitable, electrified transportation for all.” In the Scorecard, ACEEE ranks 33 states on a 100-point scale on their performance in five policy areas (based on a review of policies that had taken effect as of February 15, 2023): 1) EV and EV charging infrastructure planning and goal setting (15 points), 2) incentives for EV deployment (36 points), 3) transportation system efficiency (17 points), 4) electricity grid optimization (9 points) and 5) transportation electrification outcomes (23 points). ACEEE also makes a series of policy recommendations, including some geared toward those states that are further along and others geared toward those that are earlier in the process of developing “a robust environment for transportation electrification.”
For further information:
EPA has announced updates to EJSCREEN, which is the agency’s environmental justice screening and mapping tool. EJSCREEN 2.2 includes improvements such as redesigned and enhanced reporting, updated demographic and environmental data and a new environmental indicator. The latter incorporates data from the Toxics Release Inventory (TRI) and quantifies the relative potential human health impacts from exposure to TRI-listed chemicals. According to EPA, the EJSCREEN update includes new map layers on health disparities including cancer and persons with disabilities; critical service gaps on accessibility to housing, health insurance and transportation; and EPA regulated facilities that are currently or have been out of compliance with environmental laws and regulations. EPA has scheduled multiple training sessions and office hours on July 5, July 26 and August 16, 2023, during which the public can learn more about the tool and provide feedback.
For further information:
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EPA has proposed electronic reporting requirements under the National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines and the New Source Performance Standards for Internal Combustion Engines and Stationary Spark Ignition Internal Combustion Engines (88 Fed. Reg. 41,361). EPA intends for the proposed provisions to simplify reporting and enhance data availability to the agency and the public. The proposal also includes several clarifications and corrections of inadvertent and minor errors in the Code of Federal Regulations and solicits information related to provisions specifying that emergency engines can operate for up to 50 hours per year to mitigate local transmission and/or distribution limitations. EPA will accept public comment on the proposal until August 25, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-06-26/pdf/2023-13445.pdf
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EPA has announced the extension of the public comment period for the proposed revisions to the National Emission Standards for Hazardous Air Pollutants (NESHAPs) and New Source Performance Standards (NSPS) for the Synthetic Organic Chemical Manufacturing Industry and the Group I & II Polymers and Resins industry (88 Fed. Reg. 41,369). The proposal, which includes regulations for the Hazardous Organic NESHAP (HON), was originally published on April 25, 2023 and set a comment deadline of June 26, 2023. This notice extends the comment deadline until July 7, 2023. Among the provisions of the proposal are requirements for sources to conduct fenceline monitoring for certain hazardous air pollutants and take action if results are above a certain level. The proposal also includes new requirements to improve the efficiency of flares; stronger standards for process vents, heat exchange systems, equipment leaks and storage tanks; new emission limits for dioxins and furans; and removal of startup, shutdown and malfunction exemptions.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-06-26/pdf/2023-13484.pdf
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https://www.govinfo.gov/content/pkg/FR-2023-04-25/pdf/2023-07188.pdf (original proposal)
EPA has extended the public comment period for the proposed amendments to the National Emission Standards for Hazardous Air Pollutants for the Taconite Iron Ore Processing source category, which were published on May 15, 2023 (88 Fed. Reg. 41,872). The original deadline of June 29, 2023 has been extended until July 7, 2023. The proposal includes modifications to existing emission standards as well as new emission limits for mercury and applies to facilities engaged in separating and concentrating iron ore from taconite, a low-grade iron ore, to produce taconite pellets.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-06-28/pdf/2023-13693.pdf
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https://www.govinfo.gov/content/pkg/FR-2023-05-15/pdf/2023-10068.pdf (original proposal)
EPA announced a $7 billion funding opportunity for grants to state and local agencies, among others, as part of the Greenhouse Gas Reduction Fund’s “Solar for All” program funded by the Inflation Reduction Act of 2022. The release of the Notice of Funding Opportunity opens the $7 billion grant competition through September 26th, 2023. The Solar for All program will result in awards to up to 60 states, territories, Tribal governments, municipalities, and nonprofits to expand the number of low-income and disadvantaged communities primed for residential solar investment. All interested applicants are required to submit a Notice of Intent (NOI) to apply to this competition, with deadlines for states the District of Columbia and Puerto Rico on July 31, 2023; and for territories on August 14, 2023.
For further information:
https://www.grants.gov/web/grants/view-opportunity.html?oppId=348957