December 9-15, 2023
In this week's issue:
- EPA Issues Proposed Rule to Clarify Scope of “Applicable Requirements” Under Title V Operating Permits Program (December 13, 2023)
- EPA Moves to Dismiss Petitions Challenging Interim Final Rules Staying Federal Good Neighbor Plan in Some States (December 8, 2023)
- Senate Letter Criticizes Subpart W Methane Fee Reporting (December 13, 2023)
- New White House Cost Benefit Effort Launches (December 14, 2023)
- Bipartisan Bill Would Commit EPA To List Two PFAS As HAPs (December 14, 2023)
- COP28 Concludes with A Mix of Commitments (December 12, 2023)
This Week in Review
The EPA Administrator signed a proposed rule to update the Clean Air Act’s Title V operating permit program regulations to clarify EPA’s interpretations and policies concerning when and whether “applicable requirements” established under different sections of the CAA should be reviewed, modified, and/or implemented through the Title V permitting program. The proposed rule would guide EPA’s review of Title V permits issued by state and local permitting authorities; specifically, its authority to object their issuance if they do not assure compliance with “applicable requirements” of the CAA, and to its review of citizen petitions to object to a Title V permit in cases where EPA does not object on its own. In particular, the proposal would clarify the “limited” situations under which EPA will review New Source Review (NSR) preconstruction permitting program requirements under its Title V oversight authorities. The agency proposes to codify the approach that it has implemented on a case-by-case basis since 2017 (beginning with the PacifiCorp-Hunter I and Big River Steel Title V orders), which is: provided a source obtains an NSR permit under EPA-approved (or EPA-promulgated) title I rules, with public notice and the opportunity for comment and judicial review, EPA will not revisit those NSR decisions through the Title V process. EPA is also soliciting comment on alternative approaches that would involve using Title V to review NSR decisions in more situations. The proposed rule would also clarify that requirements related to the general duty to prevent accidental releases of hazardous substances are not “applicable requirements” for Title V purposes. EPA will accept comment on the proposed rule for 60 days after it is published in the Federal Register.
For further information:
https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions
EPA filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit seeking to dismiss or, in the alternative, hold in abeyance petitions challenging two interim final rules (IFRs) to stay the effectiveness in certain states of the final federal Good Neighbor Plan (GNP) for the 2015 8-hour ozone National Ambient Air Quality Standards. The IFRs are in response to judicial stays of EPA’s disapprovals of Good Neighbor State Implementation Plans (SIPs) for a total of 12 states (out of a total of 22 states to which the GNP applies). The entities challenging the IFRs say the rules fail to stay the effectiveness of the GNP in all the states to which the March 15, 2023 federal plan applies. In its current motion, EPA counters by asserting lack of jurisdiction, ripeness and standing.
For further information:
Senator Shelley Moore Capito (R-WV), Ranking Member of the U.S. Senate Committee on Environment and Public Works (EPW), and 10 other Republican co-signers from the U.S. Senate, have written a letter to EPA Administrator Michael Regan criticizing the actions the agency has taken on methane reporting linked to the Inflation Reduction Act (IRA) of 2022. The IRA provisions directed EPA to revise reporting under Subpart W of the AGENCY’S Greenhouse Gas Reporting Program (GHGRP) to improve the credibility of data underpinning a methane fee in the IRA. EPA’s August 1, 2023 draft rule responding to the law, titled “Greenhouse Gas Reporting Rule: Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems”, (EPA Docket EPA-HQ-OAR-2023-0234), broadened the applicability of the source categories and increased the default emissions estimates, which the authors of the letter charge creates an over-reliance on modeled, rather than monitored data. “Under the proposed rule, emission factors are increasing dramatically without evidence that this accurately reflects emission totals,” the senators wrote, which would result in subjecting more facilities to paying the IRA methane fee ($1,500 per metric ton of methane in 2026). EPA’s draft proposal for the fee is currently in interagency review.
For further information:
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The White House has released its first report from a “whole of government” effort to improve the cost-benefit analyses used by federal agencies like EPA to evaluate regulatory proposals. The Frontiers of Benefit-Cost Analysis Report calls for “strengthening the exchange of knowledge between Federal analysts and the research community” in order to “create better analytical tools, better understand and eliminate gaps in analysis, and, as a result, improve policymaking and returns to the American people.” It is expected that on an annual basis, revisions to the approach based on advances in interdisciplinary science and economics would improve the tools used by the federal government on an iterative basis. The report notes five research priorities relevant to upcoming agency actions, as well as those with the potential for improved quantification or monetization. These categories include non-fatal health effects, ecosystem services effects, wildfire and extreme weather effects, information and transparency effects, and effects of public benefit programs. “Just as research in recent decades has helped identify the social cost of environmental pollutants like smog (e.g., PM2.5)—measures valuable for Federal benefit-cost analyses—more comprehensive research can help to produce useful measures of the social benefits of investing in individuals and families through public benefit programs”, the White House announcement read. The report adds that distributional analysis and risk analysis “are also called out for advancement,” as these challenges are common across the five categories. The new effort follows on the 2023 revision of Circular A-4 by the Office of Management and Budget (OMB), its guidance governing agencies’ cost-benefit analysis, for the first time since 2003. This revision includes changes such as updates to discount rates that would more accurately account for costs and benefits of greenhouse gas rules, as well as including new analyses of the distributional effects of regulations on vulnerable populations. (Please see the related story in the November 11-17, 2023 edition of NACAA’s Washington Update.)
For further information:
and
https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf
Members of the U.S. House of Representatives have introduced bipartisan legislation to regulate per- and polyfluoroalkyl substances (PFAS). Representatives Debbie Dingell (D-MI), Brian Fitzpatrick (R-PA), and Pat Ryan (D-NY), along with 13 additional members of Congress, introduced the “PFAS Action Act” that would establish a national drinking water standard for select PFAS chemicals, accelerate designation of two PFAS chemicals – PFOA and PFOS – as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as Superfund). The bill would limit liquid industrial discharge of PFAS, and provide $200 million annually to assist water utilities and wastewater treatment, among other provisions. It would also require EPA to designate PFOA and PFOS as hazardous air pollutants within 180 days and require EPA to determine whether to list other PFAS within five years. It would also require the agency to ban certain kinds of PFAS incineration.
For further information:
https://debbiedingell.house.gov/uploadedfiles/12.1_pfas_action_act.pdf
After two weeks in Dubai, United Arab Emirates, the 88,000 attendees of the 28th Conference of the Parties (COP28) of the United Nations Framework Convention on Climate Change (UNFCCC) have concluded the summit with a mix of outcomes and agreements. Among the highest visibility outcomes was the finalization of the inaugural “global stocktake” of collective progress toward achieving the goals of the Paris Agreement on Climate Change, which seeks to limit global warming to 1.5 degrees C. The stocktake did, for the first time, address the role of reducing fossil fuels is managing climate change impacts, calling on parties to “transition away from fossil fuels in energy systems.” In addition, parties agreed to the establishment of a fund to assist vulnerable nations in addressing climate damages, to be initially managed by the World Bank. While the fund is estimated to need $100 billion in the future, first pledges from wealthy nations were made in Dubai to support the fund and currently total over $650 million. In addition, parties pledged to increase their renewable energy commitments, and new efforts were initiated to advance other clean power sources such as nuclear fusion power. However, critics note that the conference did not call for a phaseout of fossil fuels or address their use outside the energy sector (such as in construction and manufacturing), and noted the gap between actual financial pledges for assisting vulnerable communities and the monetary need expressed at previous COPs. COP29 will be held in 2024 in Baku, Azerbaijan.
For further information: