![](https://www.4cleanair.org/wp-content/uploads/2021/01/nacaa-internal-banner-1024x210.jpeg)
July 15-21, 2023
In this week's issue:
- House Bill Calls for Cut to State and Local Air Grants (July 19, 2023)
- ECOS Provides Recommendations to EPA on FY 2025 Funding (July 14, 2023)
- EPA Denies 26 Petitions for Small Refinery Exemptions Under RFS Program (July 20, 2023)
- Ohio, Indiana and West Virginia File Motion to Stay EPA’s Final Good Neighbor Plan in Their Jurisdictions Pending Outcome of Litigation Challenging Plan; Other States Move to Intervene as Respondents (July 19-20, 2023)
- EPA Finalizes Rule Removing “Emergency” Affirmative Defenses from Title V Rules (July 18, 2023)
- D.C. Circuit Rejects Challenge to Compliance Schedule in RFS Program Extension Rule (July 18, 2023)
- EPA Publishes Final HFC Allowance Allocation Rule for 2024-28 (July 20, 2023)
- D.C. Circuit Denies Petition to Reconsider Its Dismissal of Challenge to EPA’s 2009 GHG Endangerment Finding (July 20, 2023)
- Senate Confirms David Uhlmann to Lead OECA (July 20, 2023)
This Week in Review
![](https://www.4cleanair.org/wp-content/uploads/Lincoln-Memorial-1-510x328.jpeg)
The House Appropriations Committee marked up and approved a bill that includes EPA’s FY 2024 funding, calling for cuts to state and local air grants. Specifically, it includes $231.39 million for state and local air grants under Sections 103 and 105 of the Clean Air Act, as compared to $249 million in FY 2023 and $400.2 million in the Administration’s proposed budget (while NACAA has testified that an assessment of the need for state and local agencies is estimated at $500 million). The bill would cut EPA’s overall budget significantly, appropriating $6.173 billion for the agency, which is $3.96 billion (39 percent) less than FY 2023 appropriations and $5.91 billion (49 percent) below the Administration’s budget request. The Committee report accompanying the bill included language on several air-related issues (see identified page in report for more detail):
- Ethylene oxide – EPA may not take regulatory action related to ethylene oxide until the Food and Drug Administration certifies the rule will not affect the availability of sterile medical products (p. 65)
- Local air districts – There are federal, state and local activities, including prescribed burns, that impact a local air district’s compliance with air quality standards. The committee is encouraging EPA to “identify and appropriately consider these various inputs when evaluating compliance.” (p. 66)
- Light-Duty Vehicle Fleet – The bill includes no funding for EPA to plan, build out or transition to electric or zero emission vehicles and the associated charging infrastructure. The Committee expressed concern about the purchase of electric vehicles by the federal government, while stalling domestic mineral mining projects that would supply minerals like lithium and copper to produce electric vehicles. (p. 56)
- The committee report also includes specific directives related to the methane rule (p. 67), the renewable fuel standard (p. 59 and p. 67) and the sale of E15 (urging EPA to finalize the waver as quickly as possible) (p. 67).
During the mark-up, the Committee adopted amendments that, among other things, prohibit funding for finalizing and implementing EPA’s proposed regulation of greenhouse gases from power plants, and block the Mercury and Air Toxics Standards (MATS). As reported in last week’s Washington Update, the bill calls for $105 million for Diesel Emissions Reduction Act (DERA) funding (compared to $100 million in FY 2023 and $150 million in the Administration’s budget) and $69.9 million for Targeted Airshed Grants (equal to FY 2023 and the Administration’s proposal). The bill also includes multiple specific provisions affecting EPA’s activities, including rescission of $7.8 billion from the Inflation Reduction Act’s (IRA’s) Greenhouse Gas Reduction Fund and $1.4 billion from IRA’s Environmental and Climate Justice funding. It also would create new prohibitions on the following:
- EPA approval of a waiver of preemption for California regulations that include a requirement that new small off-road engines be zero-emission;
- funding for EPA to implement or enforce the federal “Good Neighbor Plan” related to the 2015 ozone NAAQS;
- EPA’s incorporation of the “Social Cost of Carbon” into cost-benefit analyses;
- mandatory reporting of greenhouse gas emissions from manure management systems; and
- implementation of CAA permitting requirements for livestock emissions.
For further information:
https://docs.house.gov/meetings/AP/AP00/20230719/116262/HMKP-118-AP00-20230719-SD002.pdf (Report language, EPA begins on p. 55)
and
https://docs.house.gov/meetings/AP/AP06/20230713/116239/BILLS-1181–AP–Interior.pdf (Bill language related to EPA begins on p. 67)
and
https://www.4cleanair.org/wp-content/uploads/interior-epa-gop-en-bloc.pdf (amendments)
and
ECOS has provided input to EPA on the agency’s development of the FY 2025 budget, responding to questions EPA had posed to the organization. In a letter to EPA Deputy Administrator Janet McCabe and Chief Financial Officer Faisal Amin, ECOS noted that the single biggest program adjustment that would accelerate progress on federal and state shared priorities would be increased state grant funding. ECOS referred back to testimony from May 2023, in which the association recommended that EPA increase FY 2024 state and local air grants by $11.4 million above FY 2023 levels, for a total of $260 million. In its letter to EPA, ECOS emphasized the importance of the role of the states as co-regulators with “an important and unique relationship” with EPA and the need to work together as partners with respect to funding and regulation. ECOS identified PFAS issues and water programs as particular concerns. In response to a question about non-financial assistance EPA could provide the states, ECOS identified several issues, including staff recruitment to address turnover and vacancies (and noted that these are exacerbated by EPA recruitment from state workforces), and the need for cumulative impact analysis tools. Finally, EPA asked if investments from the Infrastructure Investment and Jobs Act and the Inflation Reduction Act have an impact on any needs in EPA’s budget. ECOS recommended that EPA consider prioritizing investment in state staffing that could support infrastructure investments and state assistance for community activities.
For further information:
https://www.4cleanair.org/wp-content/uploads/ECOS-FY25-Budget-Responses-to-EPA-final.pdf
EPA published a notice in the Federal Register (88 Fed. Reg. 46,795) of its final action denying 26 petitions for small refinery exemptions (SREs) under the Renewable Fuels Standard (RFS) program. The RFS program requires oil refiners to either blend volumes of renewable fuels in to the fuel supply or purchase tradable compliance credits but provides for a process under which small refiners may petition EPA for an extension of the exemption from these requirements for disproportionate economic hardship. This week’s action applies to 15 refineries that petitioned EPA for the 2016 through 2018 and 2021 through 2023 compliance years
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-07-20/pdf/2023-15401.pdf
The States of Ohio, Indiana and West Virginia filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit seeking to stay EPA’s June 5, 2023, final Good Neighbor Plan for the 2015 8-hour ozone standard (a Federal Implementation Plan, applicable to 23 states, to address the interstate transport requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act) in their jurisdictions pending the outcome of the states’ July 17, 2023, petition in the D.C. Circuit for review of the Good Neighbor Plan. In their motion, the states argue that they are likely to prevail in their challenge of the Plan based on the merits of their case; that they will “suffer irreparable harm absent a stay”; and that the remaining factors favor a stay. Also related to the litigation surrounding the Good Neighbor Plan, nine states – New York, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania and Wisconsin – the District of Columbia, the City of New York and Harris County, TX filed a joint motion for leave to intervene in support of respondent EPA and the Good Neighbor Plan.
For further information:
and
EPA announced that the agency’s Administrator signed (on July 12) a final rule to remove affirmative defense provisions for “emergencies” from the state and federal Title V operating permit program regulations. These provisions, located at 40 C.F.R. §§ 70.6(g) and 71.6(g), allow sources that exceed permitted emission limits to assert an affirmative defense in civil enforcement litigation when they can demonstrate that excess emissions occurred as the result of qualifying “emergency” circumstances. EPA interprets Title V affirmative defense provisions as being inconsistent with the Clean Air Act (CAA), following the reasoning of the U.S. Court of Appeals for the District of Columbia’s 2014 NRDC v. EPA decision. In NRDC, the court held that the CAA’s enforcement structure precludes affirmative defense provisions that would operate to limit a court’s authority or discretion to determine the appropriate remedy in an enforcement action. Emergency affirmative defense provisions have never been required elements of state operating permit programs or individual Title V permits, but some state, local and tribal permitting authorities have adopted them. With the finalization of this rule, those permitting authorities will be required to submit program revisions to EPA to remove the provisions from their EPA-approved part 70 programs. EPA states that it is not, at this time, disapproving or making any finding of deficiency or inadequacy with respect to any particular state program, while noting that this type of determination “may be appropriate at a later time.” The agency believes that “most or many states” should be able to complete the necessary program revisions within 12 months. However, EPA will allow states to submit a request to the appropriate EPA Regional office requesting an extension to this 12-month deadline and demonstrating why such an extension is necessary. EPA will consider each program revision submission and extension request on a case-by-case basis. Title V affirmative defenses contained in individual operating permits must also be removed. EPA expects that these permit changes will occur in the ordinary course of business as permits are periodically renewed, revised, or reopened for other reasons.
For further information:
https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions
The U.S. Court of Appeals for the District of Columbia Circuit denied petitions for review by a group of refineries to EPA’s February 2022 rule extending the compliance reporting deadlines associated with the 2020-2022 renewable fuel standards (the “RFS Extension Rule”). The Renewable Fuel Standards Program requires EPA to establish the annual quantity of renewable fuels that must be sold in the United States. EPA promulgated the 2022 RFS Extension Rule after it missed its deadlines to set the renewable fuel standards for 2020-2022. The rule extended the corresponding compliance deadlines to ensure that obligated parties would not have to file compliance reports for 2020-2022 until after the agency published the standards for those years. The amended compliance schedule also compressed the intervals between the 2020, 2021 and 2022 compliance deadlines. Refineries challenged the new schedule, arguing that the rule violates the Clean Air Act because in that it provides obligated parties less than 13 months’ compliance lead time, and compliance deadlines shorter than 12 months. The D.C. Circuit denied their petitions, holding that when EPA fails to issue timely renewable fuel standards, the CAA does not require the agency to provide obligated parties a minimum of 13 months’ compliance lead time nor, does it require compliance intervals of at least 12 months. It also rejected the petitioners’ claim that EPA acted arbitrarily and capriciously, holding that EPA reasonably exercised its authority to establish the compliance timeline under the circumstances.
For further information:
https://www.4cleanair.org/wp-content/uploads/WynnewoodRefiningvEPA-DCCirOpinion7-18-23.pdf
EPA published in the Federal Register (88 Fed. Reg. 46,836) a final rule establishing a methodology for the allocation of hydrofluorocarbon (HFC) production and consumption allowances for years 2024 to 2028. The rule constitutes EPA’s “next step” in implementing the American Innovation and Manufacturing (AIM) Act of 2020, which directs the agency to phase down production and consumption of HFCs by 85% by 2026 through an allowance allocation and trading program. EPA’s HFC Allocation Framework Rule published in October 2021 established the production and consumption baseline levels from which reductions are made using a formula set by the AIM Act, along with an initial methodology for allocating allowances in calendar years 2022 and 2023. The new rule establishes a similar allocation methodology for years 2024 through 2028. It also incorporates former new market entrants under a pervious set-aside pool into the general rule, amends the HFC consumption baseline to reflect corrected data submitted to EPA, and makes other adjustments to the HFC phasedown implementation, compliance, and enforcement provisions, including revised recordkeeping and reporting requirements. EPA will undertake two additional regulatory actions on HFCs later this year: a final rule placing restrictions on the use of HFCs in certain sectors to facilitate transitions to alternative chemicals, and a proposed rule establishing requirements for the management of HFCs and HFC substitutes in equipment such as air conditioners.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-07-20/pdf/2023-14312.pdf
and
https://www.epa.gov/climate-hfcs-reduction/regulatory-actions-allowance-allocation-and-reporting
The U.S. Court of Appeals for the District of Columbia Circuit denied a rehearing petition filed last week by groups seeking reconsideration of the court’s May 25th judgment dismissing their challenge to EPA’s refusal to reconsider its 2009 finding that greenhouse gas (GHG) emissions from motor vehicles contribute to climate change and endanger public health and welfare (the “Endangerment Finding”). The petitioners, the Concerned Household Electricity Consumers Council and the FAIR Energy Foundation, represent “consumers of electricity”; they filed their rehearing petition on July 10 (see related article in July 8-14, 2023 Washington Update). The court had dismissed the groups’ petition for review without reaching its merits, on grounds that they lacked standing to challenge the Endangerment Finding. The groups’ rehearing petition focused largely on an argument that the court applies what they described as “shockingly inconsistent” standing requirements for consumer groups as compared to environmental organizations. The court dismissed the rehearing petition without first asking EPA to file a response to it. It did not include its reasoning in the orders of dismissal.
For further information:
and
In a 53-46 vote, the U.S. Senate voted to David Uhlmann to serve as Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA). Sens. Bill Cassidy (R-LA), Lisa Murkowski (R-AK) and Susan Collins (R-ME) voted yes, while Sen. Joe Manchin (D-WV) voted no. Uhlmann was most recently director of the Environmental Law and Policy Program at the University of Michigan School of Law before joining EPA in 2021 as an advisor to Administrator Michael Regan, and has been serving as principal deputy administrator at OECA, since that time. Uhlmann previously served for 17 years as a federal prosecutor, including seven years as chief of the Environmental Crimes Section at the U.S. Department of Justice. His nomination passed out of the Senate Committee on Environment and Public Works on April 26, 2023, and President Joe Biden first nominated Uhlmann to serve in the role on June 22, 2021. EPA’s Office of Air and Radiation continues to operate without a Senate-confirmed Assistant Administrator, more than two years after Joseph Goffman was nominated to serve in the role.
For further information:
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1181/vote_118_1_00193.htm