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November 4-10, 2023
In this week's issue:
- NACAA Executive Director Testifies at FERC Reliability Conference on EPA Power Plant GHG Proposal (November 9, 2023)
- House Votes to Adopt FY 2024 Appropriations Bill, Considers 131 Amendments and Depp EPA Cuts (November 3, 2023)
- EPA Publishes Final Rule Addressing Preemption of State and Local Regulation of Locomotives (November 8, 2023)
- Petitioners File Briefs in Case Challenging Waiver of Preemption Granted by EPA for California’s Advanced Clean Trucks Regulation (November 3, 2023)
- EPA Designates New Federal Equivalent Methods for Measuring Lead and PM10 (November 6, 2023)
This Week in Review
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The Federal Energy Regulatory Commission (FERC) held its 2023 Reliability Technical Conference in Washington DC, to convene power companies, regional transmission system operators, and regulators to discuss policy issues related to the reliability and security of the Bulk-Power System. In three afternoon panels, the conference also discussed the impact on electric reliability of EPA’s proposed rule governing greenhouse gas (GHG) emissions from power plants under section 111 of the Clean Air Act. EPA’s Principal Deputy Assistant Administrator for Air, Joseph Goffman, provided an overview of the rule and solicited ongoing engagement from the regulators, industry, and other stakeholders present to inform the finalization of a rule that best preserves reliability, affordability, and environmental benefits. NACAA’s Executive Director, Miles Keogh, testified at the technical conference on a panel that included Virginia, Wyoming, and North Dakota public utility commissioners, and the Director of the Colorado Energy Office. Miles’ testimony drew from the August 8, 2023 comments of the Association on EPA’s proposal, highlighting the role of state air agencies in developing plans under the proposed rule, and emphasizing the need for resources, flexibilities, and sufficient time for the actions called for in the rule. Comments on the technical conference’s topics can be submitted to FERC using Docket ID AD23-9 through the FERC e-Docket system.
For further information:
https://www.ferc.gov/news-events/events/2023-annual-reliability-technical-conference-11092023
and
https://www.4cleanair.org/wp-content/uploads/111-NACAA_Testimony_for-FERC-11_9_23.pdf
and
https://www.4cleanair.org/wp-content/uploads/NACAA-Power-Plant-GHG-Rules-Comments-_-08032023.pdf
The U.S. House of Representatives debated and voted (by a vote of 213-203) to approve H.R. 4821, legislation that provides FY 2024 appropriations for Interior, Environment, and Related Agencies, which includes EPA’s budget. The bill calls for steep cuts to EPA ($6.17 billion in FY 2024, as compared to $10.13 billion in FY 2023), and would reduce funding for state and local air grants to $231.4 (compared to $249 million in FY 2023). Additionally, the bill would rescind $9.4 billion in funds that the Inflation Reduction Act provided to EPA, the Presidio Trust and the Council on Environmental Quality. During debate on the bill, the House considered 131 amendments to Interior, Environment, and Related Agencies, including several related to EPA’s air and climate programs (see links below for lists of amendments). Amendments the House adopted included, among others, a reduction in EPA’s Environmental Programs and Management account within the Office of Air and Radiation by 50 percent and prohibitions on spending for the executive orders on climate change, environmental justice activities, heavy-duty engine and vehicle standards, reconsideration of particulate matter standards, community-scale ambient air monitoring, and enforcement of the greenhouse gas endangerment finding. On October 30, 2023, the Biden Administration issued a Statement of Administration Policy indicating that it opposed H.R. 4821 for a variety of reasons, including that it deviated from (i.e., further reduced) set spending levels that were agreed to in the bipartisan Fiscal Responsibility Act of 2023, which called for spending to be held generally flat with FY 2023 levels. The full Senate has not yet voted on legislation to fund EPA, although the Senate Appropriations Committee approved a bill in July that would provide EPA with $9.9 billion and $249 million (level funding) for state and local air grants. Since the House and Senate numbers differ, the two bodies must negotiate to arrive at identical legislation. The federal government is currently operating under a Continuing Resolution (CR) that has provided continued funding at FY 2023 levels since the start of the new fiscal year on October 1, 2023. The CR lasts until November 17, 2023, at which time Congress will need to adopt a second CR to avoid a government shutdown.
For further information:
https://rules.house.gov/bill/118/hr-4821
and
https://www.4cleanair.org/wp-content/uploads/House-amendments-adopted.pdf
and
EPA published in the Federal Register (88 Fed. Reg, 77,004) a final rule in which the agency revises federal locomotive regulations as they pertain to the preemption of state and local regulation of locomotives and locomotive engines. EPA writes in the final rule that the action “implements a policy change to no longer categorically preempt certain state regulations of non-new locomotives and engines, aligning with the plain text of the Clean Air Act (CAA), and better achieving the legislative intent of providing for exclusive Federal regulation of new locomotives and new locomotive engines while preserving the ability of California and other states to adopt and enforce certain state standards regulating non-new locomotives and engines.” In particular, EPA has deleted in its entirety 40 CFR 1074.12, titled “Scope of preemption-specific provisions for locomotives and locomotive engines.” The now-deleted text, in 40 CFR 1074.12(b), preempted state control of non-new locomotives for certain categories of state control measures for a period of 133 percent of useful life of a new locomotive or engine. This final rule takes effect on December 3, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-11-08/pdf/2023-24513.pdf
and
State petitioners and industry petitioners challenging the April 6, 2023, waiver of preemption for the California Air Resources Board’s Advanced Clean Trucks (ACT) Regulation, granted by EPA under Clean Air Act (CAA) Section 209, filed their respective briefs in the U.S. Court of Appeals for the District of Columbia Circuit. In their brief, a group of 19 states (Iowa, Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Utah, West Virginia and Wyoming) argues that Section 209(b)(1) of the CAA is unconstitutional because the “Constitutional equal-sovereignty doctrine forbids singling out States for special treatment” and that EPA’s waiver for the ACT Regulation contradicts the lead time requirement for heavy-duty vehicles and engines under CAA Section 202(a)(3)(C). More than 30 industry petitioners contend in their brief that forcing vehicle electrification raises a “major question” and that EPA’s granting of the waiver violates Sections 209(b)(1)(C) and 209(b)(1)(B) of the CAA.
For further information:
and
EPA announced in the Federal Register (88 Fed. Reg. 76,212) that it has designated two new federal equivalent methods (FEMs), one for measuring concentrations of lead and one for measuring concentrations of particulate matter (PM10) in the ambient air. The new FEM for lead, which was submitted by the South Coast Air Quality Management District, is a manual method using the sampling procedure specified in EPA’s Reference Method for the Determination of Suspended Particulate Matter Collected from Ambient Air (High-Volume Method) (40 C.F.R. part 50, appendix G), with a different extraction and analytical procedure. The new FEM for PM10 is an automated method utilizing the measurement principle based on beta-ray attenuation. It was submitted by, and is commercially available from, Vasthi Instruments. As designated FEMs, these methods are deemed acceptable for use by state and local air monitoring agencies under the requirements of 40 C.F.R. part 58, Ambient Air Quality Surveillance, when used in strict accordance with their operation or instruction manuals and subject to any specifications or limitations specified in the method descriptions.
For further information: https://www.govinfo.gov/content/pkg/FR-2023-11-06/pdf/2023-24495.pdf