![](https://www.4cleanair.org/wp-content/uploads/2021/01/nacaa-internal-banner-1024x210.jpeg)
September 30 – October 6, 2023
In this week's issue:
- NACAA Submits Recommendations for EPA’s National Program Guidance for Office of Air and Radiation (October 5, 2023)
- EPA Extends Comment Period for Proposed Air Emissions Reporting Requirements Revisions (October 5, 2023)
- EPA’s July 2023 Interim Final Rule Staying Good Neighbor Plan in Six States Challenged in D.C. Circuit (September 29, 2023)
- Sierra Club Sues EPA for Failure to Issue Findings of Failure for 13 States That Did Not Submit Complete Revised Ozone SIPs (October 29, 2023)
- EPA Proposes Revised NSPS for Volatile Organic Liquid Storage Vessels (October 4, 2023)
- GAO Recommends EPA Develop Business Case for Replacing AQS and AirNow (September 29, 2023)
- EPA Finalizes Update to Ozone Measurement Method (October 5, 2023)
- Environmental Groups Petition EPA to Establish PSD Increments for NO2 and SO2 NAAQS (October 4, 2023)
- Congress Adopts Continuing Resolution to Fund Federal Government through November 17, 2023 (September 30, 2023)
This Week in Review
![](https://www.4cleanair.org/wp-content/uploads/Lincoln-Memorial-2-492x328.jpeg)
NACAA has provided the EPA Office of Air and Radiation (OAR) with early input for the agency’s development of the draft National Program Guidance (NPG) for FY 2025-26. EPA is currently conducting its early engagement process with state, local and tribal partners for the development of the NPGs, which are intended to communicate each EPA program’s operational priorities, strategies, key activities and performance measures. NACAA’s letter emphasized the importance of adequate federal funding for state and local air programs and reiterated NACAA’s funding recommendations from last year, including calling for $500 million in federal grants under Sections 103 and 105 of the Clean Air Act. NACAA also urged that the NPG reflect the importance of EPA working collaboratively with its co-regulators in state and local agencies, recognizing the importance of working with state and local air agencies to adjust scarce resources to meet changing priorities and focusing on nationally significant sources that the federal government is in a better position to address. EPA will complete the early engagement process this month and plans to draft the NPGs and make them available for a public review and comment period in April 2024. Final issuance of the NPGs will follow public review.
For further information:
https://www.4cleanair.org/wp-content/uploads/FY-25-26-NPG-Early-Input-NACAA.pdf
and
https://www.epa.gov/planandbudget/national-program-guidances
EPA is extending, by 30 days, the public comment period for its proposed revisions to the Air Emissions Reporting Requirements (AERR) rule. Comments on the proposed rule are now due on November 17, 2023. Concurrently, EPA is extending the public comment period on an Information Collection Request associated with the AERR proposal to the same date. In the notice announcing the extension, which has been signed and submitted for publication in the Federal Register, EPA stated that it “has received numerous requests to extend the comment period given the complexity and length of the proposed rulemaking.” The proposed rule, which was published on August 9, 2023, would amend the AERR to require the reporting of hazardous air pollutant emissions from stationary sources, greatly expanding the universe of facilities required to report. It would require facilities to report HAP emissions directly to EPA, with the option for state and local agencies to report on behalf of facilities within their jurisdictions if the agencies apply for and receive approval to do so. Among many other proposed changes to the current rule, it would also phase in earlier point source reporting deadlines for state and local agencies.
For further information: https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr
Four separate entities and a coalition of groups filed a total of five petitions in the U.S. Court of Appeals for the District of Columbia Circuit seeking review of EPA’s July 31, 2023, Interim Final Rule (IFR). In the IFR – which took effect on August 4, 2023, and on which EPA accepted public comment until August 30, 2023 – the agency stays the effectiveness, in six states, of its June 5, 2023, final Good Neighbor Plan for the 2015 8-hour ozone National Ambient Air Quality Standard. EPA undertook the IFR in response to judicial stays of its disapproval of the states’ Good Neighbor State Implementation Plans. The six states to which the July 31 IFR applies are Arkansas, Kentucky, Louisiana, Mississippi, Missouri and Texas. The five industry petitions are now consolidated under National Mining Association v. EPA.
For further information:
https://www.4cleanair.org/wp-content/uploads/Litigation-EPA_GNP_July_2023_IFR-NMA-092923.pdf
and
https://www.4cleanair.org/wp-content/uploads/Litigation-EPA_GNP_July_2023_IFR-AECI-092923.pdf
and
https://www.4cleanair.org/wp-content/uploads/Litigation-EPA_GNP_July_2023_IFR-AFPA-092923.pdf
and
and
https://www.4cleanair.org/wp-content/uploads/Litigation-EPA_GNP_July_2023_IFR-MOG-092923.pdf
Sierra Club filed a complaint in the U.S. District Court for the District of Columbia challenging the agency’s failure to perform its nondiscretionary duty to issue findings of failure by 13 states to submit complete revised nonattainment area State Implementation Plans (SIPs) for the 2015 ozone National Ambient Air Quality Standard (NAAQS). Twenty-one areas in the 13 states were designated Marginal nonattainment under the ozone NAAQS and then did not meet their specified deadline to attain the standard. These areas were subsequently redesignated by EPA as Moderate nonattainment and required to submit revised nonattainment SIPs by January 1, 2023. EPA was to have determined by July 1, 2023, whether or not the affected states had submitted complete SIPs. EPA failed to make these determinations and, as of September 29, 2023, 11 of the states – Arizona, California, Delaware, Illinois, Maryland, Michigan, Nevada, New Jersey, Pennsylvania, Texas and Wisconsin – had failed to submit SIPs and two states – Connecticut and Utah – had submitted some, but not all, of the required SIP elements. Therefore, Sierra Club has asked the court to declare that EPA has violated the Clean Air Act by failing to perform its mandatory, nondiscretionary duty under the Clean Air Act to determine and publish a finding that the 13 states failed to submit necessary nonattainment SIP revisions by the stipulated deadline and order EPA to perform its duty by “an expeditious date certain.”
For further information:
https://www.4cleanair.org/wp-content/uploads/Litigation-Ozone_SIPs-Sierra_Club-DDC-092923.pdf
EPA published in the Federal Register (88 Fed. Reg. 68,535) proposed revisions to the New Source Performance Standards (NSPS) for volatile organic liquid (VOL) storage vessels that begin construction, reconstruction or modification after October 4, 2023. This source category includes petroleum liquid storage vessels. The revisions include a new subpart Kc of the NSPS under which vapor pressure applicability thresholds for affected vessels would be reduced and volatile organic compound standards would be reviewed to reflect the best system of emissions reductions. EPA also proposes additional monitoring and operating requirements intended to ensure continued compliance with the standards. Other proposed revisions include emission controls for degassing; clarification of requirements for startup, shutdown and malfunction; electronic reporting requirements; and amendments to subpart Kb of the NSPS, applicable to VOL storage vessels that began construction, reconstruction or modification after July 23, 1984, but on or after October 4, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-10-04/pdf/2023-21976.pdf
and
In a report evaluating EPA’s legacy IT systems for managing ambient air quality data – the Air Quality System (AQS) and AirNow – the U.S. Government Accountability Office (GAO) recommended that EPA document an operational analysis of the legacy systems’ performance and develop a business case for a new IT system to replace them. GAO’s evaluation examined 1) how EPA uses its IT systems for managing air quality data, 2) challenges these systems present for EPA and other data providers and users, and 3) the extent to which EPA has addressed these challenges. In the process of conducting its investigation, it reviewed documents, interviewed EPA officials and collected input from stakeholder organizations that provide or use data from AQS and AirNow, including NACAA and its member agencies. GAO found that AQS and AirNow can be difficult to maintain, access and use, posing challenges to federal, state, local and tribal monitoring agencies. Further, it determined that the use of multiple systems to manage air quality data results in inefficient use of resources for EPA and monitoring agencies. EPA is considering replacing AQS and AirNow with a new, single system to address these challenges, but the agency has not clearly identified the two legacy systems as candidates for replacement through its IT management and oversight processes, GAO found. Nor has the agency documented an operational analysis of the legacy systems’ performance or a business case for developing a new system. GAO made three recommendations to EPA: 1) the Office of Mission Support should identify factors for evaluating whether EPA’s IT systems may be ready for replacement or retirement; 2) the Office of Air and Radiation (OAR) should consider documenting an operational analysis for AQS and AirNow; and 3) OAR should develop and document a business case for a new IT system for air quality data based on considerations for how such a system could address the challenges currently posed by AQS and AirNow; the business case should consider an analysis of alternatives, if appropriate. EPA’s disagreed with the first recommendation, stating that the criteria and decisions to replace or retire IT systems are delegated to the EPA program offices. GAO says it continues to believe the recommendation is best directed to the Office of Mission Support. EPA agreed with GAO’s second and third recommendations. It stated that it has recently completed a “requirements analysis” for developing a new combined air quality system that will replace AQS and AirNow, and it plans to outline the business case for possible technology options “as funds become available.” The agency requested additional information from GAO on its recommendations for a business case and an operational analysis; specifically, more information on industry standard processes and formats for developing these documents.
For further information:
EPA issued a final rule that updates a standard parameter, called the “absorption cross-section value,” used to measure atmospheric ozone in ultraviolet (UV)-based ozone analyzers and Standard Reference Photometers. The new value, which is a consensus-based recommendation of an international working group, is 1.2% lower than the current value in 40 C.F.R. part 50, appendix D (established in 1961), and reduces the uncertainty in the value to 0.31%. It is currently being implemented worldwide, with a target date of January 1, 2024 for full implementation. EPA says this update may increase measured ozone concentrations by up to 1.2%, but considering the other potential impacts to variability in ozone monitoring data – including monitor measurement precision, calibration and verification; data handling and design value computation procedures; and precision and bias criteria – the agency “does not expect a predictable effect on reported data.” The final rule was signed by EPA Administrator Michael Regan on October 5 and will take effect 30 days after publication in the Federal Register.
For further information:
https://www.epa.gov/amtic/final-rulemaking-40-cfr-part-50-appendix-d
Three environmental groups submitted a petition to EPA requesting that the agency undertake a rulemaking to establish Prevention of Significant Deterioration (PSD) increments for the 1-hour National Ambient Air Quality Standards (NAAQS) for nitrogen dioxide (NO2) and sulfur dioxide (SO2). In the petition submitted to EPA Administrator Michael S. Regan and Office of Air and Radiation Principal Deputy Administrator Joseph Goffman, the Center for Biological Diversity, Public Employees for Environmental Responsibility and Sierra Club write, “Sections 163 and 166 of the Clean Air Act. . . authorize EPA to set increments and ceilings, or maximum allowable increases over baseline concentrations of, and maximum allowable concentrations of criteria pollutants. In general, increments are set by the EPA to prevent permitting new or modified sources that would cause significant deterioration of an area’s ambient air.” The CAA requires EPA to review the NAAQS every five years and, if necessary, make revisions. The agency last revised the 1-hour NO2 and SO2 NAAQS in 2010. The petitioners further write, “In promulgating a 1-hour standard for SO2 and NO2, the EPA should have also promulgated a 1-hour increment for both NAAQS. . . . However, the EPA has a track record of failing to set PSD increments for these pollutants.” They therefore request that EPA issue a final rule setting 1-hour average increments for NO2 and SO2 using the same methodology used to set the existing increments – 2.5 percent of the NAAQS for Class I areas, 25 percent of the NAAQS for Class II areas and 50 percent of the NAAQS for Class III areas.
For further information:
With only hours to spare, Congress adopted and the President signed H.R. 5860, a Continuing Resolution (CR) to extend funding for federal government programs at FY 2023 levels until November 17, 2023. The measure was necessary to avoid a government shutdown in the absence of appropriations legislation to fund the federal government for FY 2024 (FY 2023 ended on September 30, 2023). Until Congress adopted the bill, a shutdown appeared almost inevitable and agencies, including EPA, had planned extensively for the possibility. Congress must now pass legislation to provide funding for federal programs or adopt another CR by November 17 to avoid a shutdown at that time. With respect to EPA’s budget, neither the House nor the Senate has adopted legislation to provide funding for the agency, although the Appropriations Committees in both houses have approved bills to be considered on the floor of their respective bodies. The House bill calls for $6.17 billion for EPA, while the Senate bill would provide $9.9 billion (FY 2023 funding was $10.13 billion). Section 103/105 grants are $231.4 million in the House bill and $249 million in the Senate (FY 2023 was $249 million).
See https://www.congress.gov/118/bills/hr5860/BILLS-118hr5860cph.pdf