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August 12-18, 2023
In this week's issue:
- OECA releases 2024-2027 National Enforcement Priorities; Adding Climate Change and PFAS, Dropping Mobile Source Tampering (August 17, 2023)
- EPA Publishes Coke Ovens Proposal, Sets Comment Deadline (August 16, 2023)
- EPA Seeks Feedback On AirKnowledge Training Plans (August 14, 2023)
- U.S. DOT Publishes Proposed New Fuel Efficiency Standards for Passenger Cars, Light Trucks and Heavy-Duty Pickup Trucks (August 17, 2023)
- Trade Associations Challenge EPA’s Use of IRIS Risk Value in Denka Enforcement Suit (August 14, 2023)
- Kids Win Climate Case In Montana (August 14, 2023)
This Week in Review
![](https://www.4cleanair.org/wp-content/uploads/US-Capitol-1-437x328.jpeg)
In a seven-page memorandum from Assistant Administrator David Uhlmann, EPA’s Office of Enforcement and Compliance Assurance (OECA) has released its national enforcement and compliance initiatives (NECIs) for Fiscal Years (FY) 2024 to 2027. The NECIs represent priorities that EPA uses to focus its resources on issues of significant noncompliance and that have national scope. In this round of NECIs, EPA added three new program areas: Climate Change, Per- and Polyflouryl Alkyls (PFAS), and Coal Ash Contamination. EPA will continue to advance two NECI areas, focused on Drinking Water Standards and Chemical Accidents. EPA combined and modified NECIs focused on air pollution, NAAQS compliance, industrial facility emissions into a single NECI focused on preventing air toxics emissions. EPA also dropped its NECI that focused on preventing emissions from mobile sources and aftermarket tampering. EPA said that its revised NECI list for 2024-2027 aligns their actions with two overarching Strategic Plan goals: Tackle the Climate Crisis, and Take Decisive Action to Advance Environmental Justice. The new Climate Change NECI will address three emission source types: “methane emissions from oil and gas facilities; methane emissions from landfills; and the use, importation, and production of hydrofluorocarbons (HFCs)”. This aligns with NACAA’s recommendation to OECA in our March 13, 2023 comments on the proposed NECIs, which state that “if EPA proceeds, existing regulations regarding HFC, methane and mobile source CO2 emissions already present opportunities for action.” The Air Toxics NECI will focus on all HAPs, particularly in overburdened communities, and particularly calls out “benzene, ethylene oxide, and formaldehyde” as priorities. EPA said that it was returning the mobile source emissions initiative to the core program because it had met the goals of this program area by FY 2023. “OECA and the Regions will continue to investigate and pursue enforcement against upstream manufacturers and distributors of defeat devices to leverage the greatest benefits for human health and the environment, as well as continue to provide training and coordinate with states and maintain outreach and compliance assistance to industry groups,” the memorandum says. NACAA had called for the retention of this initiative in our comments, documenting our concerns that this remains an area of widespread and significant violations, and flagging that the EPA’s Office of Inspector General had issued a Jan. 25, 2023, report titled “The EPA Is Not on Track to Reach Its National Compliance Initiative Goals to Stop Aftermarket Defeat Devices and Tampered Vehicles.” The new NECIs take effect October 1, 2023. For further information:
https://www.epa.gov/system/files/documents/2023-08/fy2024-27necis.pdf
and
https://www.4cleanair.org/wp-content/uploads/NACAA-OECA-FY24_27-NECI-Comments-_-03132023.pdf
EPA has published in the Federal Register proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Coke Ovens: Pushing, Quenching, and Battery Stacks, and Coke Oven Batteries, based on the agency’s Risk and Technology Review of the original requirements in the 2005 NESHAP (88 Fed. Reg. 55858). The agency has set the public comment deadline on the proposal for October 2, 2023. The proposal calls for: fenceline monitoring for benzene (including a root-cause analysis and corrective action if above an action level); lower limits for coke oven door, lid and offtake emissions; new standards for 15 previously unregulated hazardous air pollutants (HAPs) from pushing, battery stacks and Heat and Nonrecovery facilities main stacks from steam generators; standards for two previously unregulated HAPs (particulate matter metals and mercury) from certain types of emissions points; removal of exemptions for startup, shutdown and malfunction; and requirements for electronic reporting. EPA expects most facilities to be able to comply with the proposed requirements without additional controls.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-08-16/pdf/2023-16620.pdf
and
EPA’s Office of Air Quality, Planning, and Standards (OAQPS) has requested feedback on its plans for FY 2024-2026 for AirKnowledge, the agency’s electronic platform for delivering training. EPA is working with multijurisdictional organizations (MJOs), NACAA, and other training partners to develop a set of air quality training curricula that frame the scope of AirKnowledge content development efforts. The curricula include a broad cross-cutting Air Pollution Basics curriculum and seven curricula that relate to air agency functional areas: Air Quality Planning, Permitting, Air Quality Modeling, Ambient Air Monitoring, Emissions Inventories, Air Toxics Rule Development and Implementation, and Source Emissions Testing and Source Emissions Monitoring. EPA has asked for feedback about the timing and scope of the proposed topics and the prioritization of topics from state and local agencies. EPA has asked that feedback on two documents, an AirKnowledge Update Plan and a spreadsheet with curricula details, be sent directly to airknowledge@epa.gov by Friday, September 8, 2023. The plan is intended to be finalized in the Fall.
For further information:
and
https://www.4cleanair.org/wp-content/uploads/FY24-26-DRAFT-AK-Content-Development-Plan.pdf
and
https://www.4cleanair.org/wp-content/uploads/Summary-Spreadsheet.Aug-2023.xlsx
The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) published in the Federal Register (88 Fed. Reg. 56,128) proposed new Corporate Average Fuel Economy (CAFE) standards for MY 2027 through 2032 passenger cars and light trucks and MY 2030 through 2035 heavy-duty pickup trucks. Under the fuel efficiency proposal 1) the standards for passenger cars increase at a rate of 2 percent per year; 2) the standards for light trucks increase at a rate of 4 percent per year; and 3) the standards for heavy-duty pickup trucks increase at a rate of 10 percent per year. At this time, NHTSA projects that its proposed standards would require an industry-wide fleet average for passenger cars and light trucks of about 58 miles per gallon in MY 2032 and an industry-wide fleet average for heavy-duty pickup trucks of about 2.6 gallons per 100 miles in MY 2038. The proposed rule also includes a range of alternatives on which NHTSA seeks comment. With respect to benefits, NHTSA projects that the proposed standards would reduce average fuel costs over the lifetime of a passenger car or light truck by $1,043 and of a heavy-duty pickup truck by $439 and, overall, will save consumers over $50 billion on fuel over the lifetime of affected vehicles and conserve more than 88 billion gallons of gasoline through 2050. NHTSA states that the proposed standards “are directly responsive to the agency’s statutory mandate to improve energy conservation and reduce the nation’s energy dependence on foreign sources.” In addition, NHTSA estimates the proposed standards will prevent over 900 million tons of carbon dioxide emissions, which equates to taking over 233 million vehicles off the road from 2022 through 2050. Overall, the combined benefits of the proposal are expected to exceed costs by more than $18 billion. In the proposal, NHTSA also puts forth proposed “augural” standards for MY 2032 passenger cars and light-trucks that would continue to increase at 2 percent per year and 4 percent per year, respectively, compared to the previous year’s standards. The “augural” standards are NHTSA’s current estimate of what it would propose for MY 2032 and beyond if it had authority to set fuel economy standards for more than five MYs at a time. The augural standards do not, and will not, have any effect and will not be binding unless and until NHTSA adopts them in a subsequent rulemaking. NHTSA includes augural standards for MY 2032 in the proposal, consistent with past practice, “to give its best estimate of what those standards would be to provide as much predictability as possible to manufacturers and to be consistent with the time frame of the proposed Environmental Protection Agency (EPA) standards for greenhouse gas (GHG) emissions from motor vehicles” proposed in April 2023. Comments on the proposed rule are due by October 16, 2023. NHTSA plans to hold one virtual public hearing on the proposal during the public comment period; the date and web address of the virtual hearing and details of how to register will be provided in a supplemental Federal Register notice.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-08-17/pdf/2023-16515.pdf
and
https://www.nhtsa.gov/laws-regulations/corporate-average-fuel-economy#75896
In a proposed amicus brief filed in the U.S. District Court for the Eastern District of Louisiana, a group of industry trade associations argue that EPA is unlawfully using an Integrated Risk Enforcement System (IRIS) value as the basis for an enforcement action against Denka Performance Elastomer, LLC (“Denka”). EPA’s lawsuit alleges that chloroprene emissions from Denka’s neoprene manufacturing operations in LaPlace, LA present an “imminent and substantial endangerment” to public welfare under Section 303 of the Clean Air Act because they have at times exceeded the chloroprene IRIS value of 0.2 micrograms per cubic meter outside the facility fenceline. EPA, the trade associations charge, is effectively treating the IRIS value as a regulatory standard, even though IRIS values are not part of any law, regulation or permit term applicable to the facility. IRIS assessments, they note, are not prepared pursuant to any statute or authorization by Congress; rather, they are designed to establish a “starting point” for EPA staff across a variety of regulatory programs. Further, because they are not regulations, the groups argue, IRIS values have not been subjected to procedural requirements of the Administrative Procedure Act or Clean Air Act and have been shielded from judicial review. “The IRIS value is the most conservative estimate of exposure hazards and does not represent risk to individuals in the real world,” the groups assert. Because IRIS values do not have the force of law and are not entitled to conclusive weight in a rulemaking, industry has not been on notice that exceeding an IRIS value, while in compliance with its permits and all applicable legal standards, can result in an enforcement action, they contend.
For further information:
In a case before the state’s 1st Judicial District Court in Montana, a Judge ruled that the 16 young plaintiffs have a “fundamental constitutional right to a clean and healthful environment, which includes climate”, striking down provisions of two laws that bar state agencies from considering the climate effects of fossil fuel projects. The case, Held v. Montana (Montana 1st District Court Case No. CDV-2020-307), contended that these provisions violate the Montana Constitution, including Article 9 which reads “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” The ruling affects provisions of the State Energy Policy Act and the Montana Environmental Policy Act which bar agencies from considering climate change in certain activities. However, the Judge noted in the ruling that the court did not have authority to order the state to create a remedial plan to address climate change. The case, first filed on March 13, 2020, sets a precedent that is likely to affect other cases brought by young plaintiffs, including in Hawaii (Navahine F., a Minor, v. Hawaii DOT, Hawaii 1st Circuit Case No. 1CCV-22-0000631), which will be tried in September 2023, as well as in Federal court, notably Juliana v. United States (USCA Case No. 6:15-cv-01517-TC), first filed in 2015, which received a ruling in June 2023 that it could proceed with a trial. In addition to Montana, Pennsylvania, New York, Hawaii, Massachusetts and Illinois have similar environmental rights provisions in their state constitutions. For further information:
https://www.4cleanair.org/wp-content/uploads/20230814_docket-CDV-2020-307_order.pdf
and
https://www.4cleanair.org/wp-content/uploads/JulianaYouthAmendedComplaintAgainstUS.pdf
and
https://www.4cleanair.org/wp-content/uploads/Navahine-F-v-HDOT.pdf