September 16-22, 2023
In this week's issue:
- EPA Releases Guidance for $4.6 Billion Climate Pollution Reduction Implementation Competitive Grants; State and Local Applications Due April 1, 2024 (September 19, 2023)
- EPA Issues Proposed Amendments to “Major MACT to Area” Rule (September 21, 2022)
- EPA Announces Second Interim Final Rule to Stay Effectiveness in Six More States of Federal Good Neighbor Plan for 2015 Ozone NAAQS (September 22, 2023)
- Biden Administration Orders Federal Agencies to Consider Social Cost of GHGs in Budgeting and Purchasing Decisions (September 21, 2023)
- States Sue EPA to Compel Mandatory Review of Residential Wood Heater NSPS (September 21, 2023)
- EPA Inspector General Recommends Agency Action to Address Increasing Air Pollution at Ports (September 21, 2023)
- House Subcommittee Holds Hearing to Examine EPA’s Proposed PM2.5 NAAQS (September 19, 2023)
- Researchers Report Increasing Influence of Wildfire Smoke on Air Quality Trends Across Most of U.S. (September 20, 2023)
- Industry Group Sues EPA to Complete Air Toxics Review for Large Municipal Waste Combustors (September 18, 2023)
- Environmental Groups Sue EPA to Review Air Toxics Standards for Polyether Polyols Production (September 18, 2023)
- Industry Coalition Files Legal Challenge to EPA’s Removal of Title V “Emergency” Affirmative Defenses (September 19, 2023)
- EPA Issues Power Sector Program Progress Report for 2022 (September 19, 2023)
- Study: Well-Designed Remote Work Can Cut GHG Emissions By More Than Half (September 18, 2023)
- White House Announces American Climate Corps (September 20, 2023)
This Week in Review
EPA has released two Notices of Funding Opportunity (NOFOs) and guidance detailing $4.6 billion in implementation grant funding under the Climate Pollution Reduction Grants (CPRG) program. These competitive grants are aimed at funding efforts identified in Preliminary Climate Action Plans (PCAPs) being developed under Phase 1 of the CPRG, and in the Phase 2 grants, $4.3 billion general competition is open to states, municipalities, tribes, and territories, including air pollution control agencies; a second poll of $300 million is available only to tribes and territories. Territorial applicants include American Samoa, the Commonwealth of Northern Mariana Islands, Guam, and the U.S. Virgin Islands. The District of Columbia and Puerto Rico are considered states for the purposes of the applications. Eligible applicant agencies can submit one application as an individual applicant, but can also submit an additional application as the lead agency in a coalition of multiple agency applicants, and can also be listed as a non-lead applicant on an unlimited number of applications that other agencies lead. Eligible measures in an application must be included in the PCAP of a state or local Phase 1 recipient, and those PCAPs are due to EPA on March 1, 2024, a month before applications are due for Phase 2 implementation grants. EPA will not award Phase 2 implementation grants for the same measures in the same locations, and encourages coordination between applicants in overlapping jurisdictions. As part of its evaluation of applications, EPA will prioritize measures that achieve the greatest amount of greenhouse gas (GHG) emission reductions and deliver “transformative opportunities or impacts”; particularly weighting emissions reductions expected between 2025 and 2030. Community benefits and community engagement are also important selection criteria in the competition. The deadline for state and local agencies to apply to the general competition is April 1, 2024. The deadline for territories is May 1, 2024. EPA held an initial informational webinar about the general competition on September 21st and a second (repeat) webinar will be held October 3rd at 3:00 pm. In addition, two informational webinars about the Tribes and territories competition will be held on September 27th and October 5th.
For further information:
https://www.grants.gov/web/grants/view-opportunity.html?oppId=350252
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https://www.grants.gov/web/grants/view-opportunity.html?oppId=350253
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https://www.epa.gov/inflation-reduction-act/cprg-implementation-grants
The EPA Administrator signed a proposed rule to amend the agency’s “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” Rule, otherwise known as the Major MACT to Area or “MM2A” Rule. The proposed amendments are intended to make the rule more protective of human health and the environment by preventing reclassified sources from “backsliding” with respect to their emissions of hazardous air pollutants (HAPs). The November 2020 MM2A Rule amended the National Emission Standards for Hazardous Air Pollutants (NESHAP) General Provisions and allowed a major source of HAPs to reclassify as an area source after taking steps to limit its HAP emissions to below major-source thresholds. It constituted the formal rescission by the Trump Administration of the agency’s 1995 “once in, always in” policy, under which HAP sources considered major sources under CAA Section 112 remained major sources even if their emissions dropped below major-source levels. When President Biden took office, EPA commenced a review of the rule in accordance with a directive in Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The newly proposed MM2A Review Rule would require sources that choose to reclassify from major sources to area sources to establish federally enforceable permit conditions with safeguards to prevent emission increases above the levels allowed by the major source NESHAP the source was subject to prior to reclassification. The permit conditions would be required to be federally enforceable. Reclassification would be effective only after a permit containing the federally enforceable conditions has been issued and EPA has been notified. The proposed requirements would apply to all sources that choose to reclassify, including any sources that have reclassified since January 25, 2018 (the date of a Trump Administration guidance memorandum rescinding the “once in, always in” policy). EPA states in the rule preamble that it expects the introduction of safeguards, combined with federal enforceability, “will help to ensure the NESHAP program continues to reduce emissions over time, and that sources subject to the NESHAP program are not able to increase their emissions beyond what the major source NESHAP would have allowed as a result of reclassification and/or evade permit limits that would otherwise prevent them from doing so.” Comments on the proposed rule will be due 45 days after it is published in the Federal Register.
For further information:
EPA announced a second interim final rule (IFR) to stay the effectiveness of the final federal Good Neighbor Plan for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS), this time in response to judicial stays of EPA’s disapprovals of Good Neighbor State Implementation Plans (SIPS) for six additional states: Alabama, Minnesota, Nevada, Oklahoma, Utah, and West Virginia. On July 31, 2023, EPA took similar action for emission sources in Arkansas, Kentucky, Louisiana, Mississippi, Missouri and Texas, where there are also judicial stays of EPA’s Good Neighbor SIP disapprovals. Sources in all 12 of these states are not required to comply with the Good Neighbor Plan at this time. Accordingly, as of September 21, 2023, the Good Neighbor Plan’s “Group 3” ozone-season NOX control program for electric generating units is being implemented in Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin. This week’s IFR will be effective upon its publication in the Federal Register. EPA will also take comment on this IFR for 30 days following publication. The stay of the Good Neighbor Plan for the 12 states covered by the two IFRs will remain in effect until litigation over EPA’s disapprovals of the states’ Good Neighbor SIPs is resolved. The Good Neighbor Plan (a Federal Implementation Plan to address the interstate transport requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act) was signed by EPA on March 15, 2023, and published in the Federal Register on June 5, 2023, with an effective date of August 4, 2023.
For further information:
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The White House issued a directive ordering federal agencies, for the first time, to consider the Social Cost of Greenhouse Gases (SC-GHG) in the development and implementation of their budgets and in federal procurement processes. The directive greatly expands the use of the SC-GHG metric, which is designed to calculate the economic harm caused by greenhouse gas emissions. It is currently set at $51 per ton; EPA is considering comments on a November 2022 proposed rule that would increase it to $190 per ton. Currently, federal agencies use the SC-GHG when estimating the benefits and costs of proposed regulations. Under the new directive, agencies will utilize the metric in vehicle, goods and equipment purchasing decisions across the government. The directive was widely praised by Democrats and environmental groups as a historic and potentially transformative step toward combatting climate change, while saving taxpayer money and spurring investment in clean technologies. Critics charged that it will kill energy jobs, delay critical infrastructure projects and drive up costs for employers and consumers. The White House stated, “As the world’s single largest purchaser—spending over $630 billion per year on goods and services—the federal government has the ability to move markets, invest in new ideas, and act as a model contracting partner. By integrating the SC-GHG into procurement, as appropriate and consistent with applicable law, the federal government can reduce emissions while saving taxpayer dollars, both in the short term through reduced energy consumption, and in the long term by helping to reduce the most catastrophic effects of the climate crisis.”
For further information:
The Attorneys General of 10 states and one local clean air agency filed a complaint in the U.S. District Court for the District of Columbia to compel EPA to fulfill its nondiscretionary statutory duty to review the New Source Performance Standards (NSPS) for new Residential Wood Heaters (RWHs). Under Clean Air Act 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 RWH NSPS 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 this case, the plaintiffs – New York, Alaska, Illinois, Maryland, Massachusetts, Minnesota, New Jersey, Oregon, Vermont, Washington and the Puget Sound Clean Air Agency – seek an injunction requiring EPA to promptly propose and take final agency action on the NSPS by dates certain. The plaintiffs argue that EPA’s failure to timely review the NSPS “has harmed and continues to harm the States by delaying the adoption and implementation of more protective NSPS for residential wood heaters, including for indoor heaters and outdoor wood boilers under 40 C.F.R. Part 60, Subparts AAA, QQQQ, that will result in cleaner and healthier air in the States, benefitting the health and welfare of their citizens. Further, EPA’s failure to update the NSPS for residential wood heaters frustrates the States’ ability to implement the Clean Air Act and makes it more difficult for states to attain, or maintain, compliance with the NAAQS for fine particulate matter. Difficulty with maintaining compliance with the NAAQS will both negatively harm the health of our residents and force the States to allocate additional resources to control PM2.5. Additionally, many States have spent state money to subsidize wood stove change out programs. If newer wood heaters do not meet cleaner standards in real world emissions, then programs to change out old wood heaters may provide little health benefits at significant public cost.”
For further information:
EPA’s Office of Inspector General (OIG) issued a report on the evaluation it conducted to determine what steps the agency is taking to address the increased air pollution occurring from oceangoing vessels (OGVs) at U.S. maritime ports. OIG undertook the evaluation because one of EPA’s goals, as stated in its 2022-2026 strategic plan, is to “ensure clean and healthy air for all communities,” with the related objective of improving air quality and reducing localized pollution and health impacts. Based on its evaluation, OIG concludes that EPA “needs to collect additional data to successfully track air emissions near ports.” At this time, the agency’s efforts to address increased air emissions at ports is limited to a voluntary Ports Initiative that encourages ports to decrease emissions and increase efficiency. OIG also reports that EPA does not fully track changes in air emissions from OGVs at ports and, further, that “[a]ir quality monitoring is nonexistent at most U.S. ports.” As a result, community groups in near-port communities often seek to fill data gaps with low-cost air monitors; however, EPA guidance on how to use such monitors and the data they generate is limited. In addition, although EPA has made technical instructions for completing emission inventories available to those ports that choose to conduct an inventory, the extent to which such ports conduct and publicly release their emission inventories varies and the lack of emissions data renders EPA unable to adequately assess changes in air emission baselines or performance metrics to measure progress in reducing adverse health impacts from air emissions at ports. Therefore, in EPA Needs to Address Increasing Air Pollution at Ports, OIG recommends, “The EPA should track changes in air emissions in near-port communities and develop guidance for using community group air-monitoring data.” More specifically, OIG recommends that EPA 1) assess the monitoring networks around ports and near-port communities and, for areas where gaps are identified, develop a plan to improve the networks and 2) establish quantifiable performance measures for its Ports Initiative. EPA agreed with Recommendation 1 and “resolved it with corrective actions pending.” EPA also agreed with the intent of Recommendation 2 but EPA and OIG “disagree with the efficacy of the metrics EPA provided. Therefore, Recommendation 2 is unresolved”
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The House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Minerals convened a hearing titled, “Protecting American Manufacturing: Examining EPA’s Proposed PM2.5 Rule.” In his opening remarks, Subcommittee Chair Bill Johnson (R-OH) said the new standards would “crush” manufacturing and that EPA should “go back to the drawing board” because “vast regions of the nation will be so close to nonattainment, that they will be unable to permit new and expanded manufacturing and other industrial activities.” Chair Johnson displayed a color-coded map that, he said, “shows the problem: virtually every economically active area of the nation would be negatively impacted by these proposed standards.” Committee Chair Cathy McMorris Rodgers (R-WA), in her opening statement, also commented on the “crushing” impact the standards would have on American jobs and the economy, and said “President Biden’s radical rush-to-green agenda is raising costs across the board. People are suffering, every time they go to fill up their tank with gas, feed their families, and keep the lights on. Now, the EPA is attempting to take this extreme agenda one step further by proposing unattainable standards on fine particulate matter.” Remarking that, “the proposed standards could actually make it more difficult to protect people from harmful air pollutants, a fundamental responsibility of EPA,” Chair Rodgers said that despite the progress that’s been made under the Clean Air Act, “the Biden Administration is taking steps to introduce these, new, completely ‘divorced from reality’ standards. This will force investors and jobs out of the U.S. and benefit countries like China, the largest polluter in the world with the worst environmental standards. It could make air quality even worse for many Americans, as the new limits would prevent the needed management to prevent wildfires, which cause a lot of the PM emissions.” Witnesses for the Majority were Bryce Bird, Director of the Division of Air Quality of the Utah Department of Environmental Quality and Past President of the Association of Air Pollution Control Agencies; Glenn Hamer, President and CEO of the Texas Association of Business; and Tim Hunt, Senior Director for Air Quality Programs for the American Forest & Paper Association and American Wood Council. The witness for the Minority was Almeta E. Cooper, National Manager for Health Equity for Moms Clean Air Force. In a related matter, on September 20, 2023, 23 Republican Senators sent a letter to EPA Administrator Michael S. Regan urging that he “rescind [the] proposed reconsideration of the PM2.5 NAAQS and review the NAAQS under the Clean Air Act’s regular five-year review schedule. At that time, EPA must set standards that follow the science and operate within the bounds of what is technologically and economically feasible.” The Senators write that EPA’s proposal fails to consider several important factors that will make implementation of a lower annual standard extremely difficult, or in some cases impossible, to no measurable benefits to public health, the environment, or the economy. The EPA should not finalize a discretionary reconsideration of a PM2.5 NAAQS that is unattainable and will likely lack an accompanying, detailed implementation plan.”
For further information:
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https://www.4cleanair.org/wp-content/uploads/PM_NAAQS-Senate_Rs_Letter-092023.pdf
Using air pollution data from ground and air sensors researchers from Stanford and Harvard have documented that average annual levels of fine particulate matter (PM2.5) dropped in as many as 41 of the contiguous United States between 2000 and 2016, but since that time these air quality trends have either slowed or been fully reversed in 35 states due to wildfire smoke, “eroding about 25% of previous multi-decadal progress in reducing PM2.5 concentrations on average in those states, equivalent to 4 years of air quality progress, and more than 50% in many western states.” In “The contribution of wildfire to PM2.5 trends in the USA,” the researchers conclude that “[w]ildfire-driven increases in ambient PM2.5 concentrations are unregulated under current air pollution law and, in the absence of further interventions, we show that the contribution of wildfire to regional and national air quality trends is likely to grow as the climate continues to warm.”
For further information:
https://www.nature.com/articles/s41586-023-06522-6
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https://news.stanford.edu/press-releases/2023/09/20/wildfire-smokes-toxic-influence/
The Waste-to-Energy Association, an industry trade organization, has sued EPA to compel the agency to complete the residual risk review for large municipal waste combustors (MWCs), which the litigants claim is decades late. The suit also states that EPA has negotiated a deadline for revisions to the National Emission Standards for Hazardous Air Pollutants for the large MWC source category that would require issuance of the standards without completing the residual risk analysis. EPA issued the first NESHAP for large MWCs in 1995 and revised standards in 2006. However, the agency remanded the standards in 2007 to address issues in another lawsuit and has not issued revised standards in response to the remand. As a result of a subsequent suit, EPA entered into a consent decree to issue standards by November 2024. However, the plaintiffs claim the consent decree does not address EPA’s responsibility to perform a residual risk analysis. They are asking the court to order EPA to complete the residual risk analysis and incorporate the results in the final standards.
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A group of environmental organizations has sued EPA to compel the agency to review the air toxics standards for the Polyether Polyols Production source category. The litigants stated that EPA has failed to review and revise the standards within eight years of establishing the National Emission Standards for Hazardous Air Pollutants for the source category, as required by the Clean Air Act (CAA). The suit, filed in the U.S. District Court for the District of Columbia, notes that the facilities in the source category are major sources of pollutants, including ethylene oxide, and that the communities most exposed to emissions from the sources are disproportionately communities of color and low income. EPA first issued standards for the source category in 1999 and issued a revised standard in March 2014, which is more than eight years ago. In 2014, environmental groups petitioned for reconsideration, which EPA granted, but the agency has taken no further action on the reconsideration since then. This inaction has delayed litigation on the 2014 rule, according to the litigants. Furthermore, since that time, EPA has updated its risk assessment for ethylene oxide, finding that it is significantly more hazardous than previously estimated. The litigants asked that EPA be ordered to review and revise, as necessary, the NESHAP for the source category by an “expeditious deadline” established by the court.
For further information:
https://www.4cleanair.org/wp-content/uploads/PolyetherPolyolsEnviroSuit.pdf
An informal coalition of trade groups and businesses filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit challenging EPA’s final rule removing the “emergency” affirmative defense provisions from the Clean Air Act’s Title V operating permit program regulations. The Petitioner is the “SSM Litigation Group,” self-described as “an ad hoc, informal organization of trade associations and business organizations, formed to conduct advocacy and litigation concerning regulation under the Clean Air Act of emissions from stationary sources, with particular emphasis on emissions during startup, shutdown, and malfunction events.” Published on July 21, 2023, the challenged rule removed provisions from the state and federal operating permit rules that allowed sources that exceed permitted emissions limits to assert an affirmative defense in civil enforcement litigation when they could demonstrate that excess emissions occurred as the result of qualifying “emergency” circumstances. EPA now interprets these provisions as inconsistent with the Clean Air Act following a 2014 D.C. Circuit decision which held that the CAA’s 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. The SSM Litigation Group is the only petitioner to have filed a challenge to the July 21st rule. It has not yet filed a statement setting forth the legal issues it plans to argue before the court.
For further information:
https://www.4cleanair.org/wp-content/uploads/SSM-Litigation-Group-v.-EPA-23-1267-PFR.pdf
EPA released the 2022 “Power Sector Program Progress Report” providing updates on regulatory programs the agency implements to reduce emissions from the power sector. The Progress Report addresses program implementation, emissions monitoring, compliance market activity and emissions trends related to the Acid Rain Program, Cross-State Air Pollution Rule (CSAPR), CSAPR Update, Revised CSAPR Update and Mercury and Air Toxics Standards. In this year’s update, EPA reports, among other things, that annual emissions have declined as follows: sulfur dioxide – 10 percent below 2021, 93 percent below 1995; nitrogen oxide – 4 percent below 2021, 87 percent below 1995 (NOx emissions during the 2022 ozone season were down 10 percent from 2021 and 87 percent from 1997); carbon dioxide – 1 percent below 2021, 22 percent below 1995. The agency further reports that there was 100 percent compliance for power plants in the market-based Acid Rain Program and CSAPR allowance trading programs.
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A new peer-reviewed study in the journal Proceedings of the National Academies of Science (PNAS) finds that thanks to less commuting and office energy use, fully remote workers could produce 58 percent lower GHG emissions than workers who work in offices full-time. In the study, titled “Climate mitigation potentials of teleworking are sensitive to changes in lifestyle and workplace rather than ICT usage”, researchers analyzed various work scenarios, people’s behaviors, and sources of emissions, and found that schedules where people work remotely for two to four days a week could also cut emissions by 11 to 29 percent. Emissions resulting from information technology uses were comparable in all scenarios, however, benefits from remote work varied widely based on the modes of commuting and the types of energy use both in and outside the office, undermining the benefits. “Our study also suggests that achieving the environmental benefits of remote work requires proper setup of people’s lifestyle, including their vehicle choice, travel behavior, and the configuration of home and work environment”, the authors concluded.
In an executive action, President Joe Biden announced the launch of the American Climate Corps, a workforce training and service initiative aimed at creating 20,000 jobs in clean energy deployment, natural resource restoration, management and adaptation, and advancing environmental justice. The announcement of the American Climate Corps called on the private sector and on local and state governments to support this paid training program through skills-based training partnerships. The White House announced that six federal agencies will sign a memorandum of understanding to formalize the effort, including the Departments of Labor, Interior, Agriculture and Energy, NOAA and AmeriCorps, although EPA was not listed among these agencies. The American Climate Corps would also work with existing state Climate Corps programs efforts led by California, Colorado, Maine, Michigan, and Washington, and said that five additional states were announcing state led efforts, including Arizona, Utah, Minnesota, North Carolina, and Maryland. The White House did not provide details about the funding for the program or how much workers would be paid, but said that more details about the program’s structure will be rolled out in the coming weeks.
For further information:
https://www.whitehouse.gov/climatecorps/
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