December 30, 2023-January 5, 2024
In this week's issue:
- EPA Expects Final Rule on PM NAAQS Reconsideration to Be Ready for Signature by End of January (January 2, 2024)
- EPA Asks Court for Remand of 2020 Decision to Retain Ozone NAAQS Without Revision (January 3, 2024)
- EPA Inspector General Concerned About Lack of Robust Verification Mechanisms in Clean School Bus Program (December 27, 2023)
- EPA Announces Public Hearing and Comment Period on CARB Waiver Request for ACC II Regulations (December 26, 2023)
- EPA Extends Public Comment Period for Proposed Rubber Tire Manufacturing Air Toxics Rule (December 22, 2023)
- Advocates Call on White House to Improve Federal Technical Assistance to State and Local Governments (January 4, 2024)
- EPA Adjusts Civil Penalty Maximums 3.2 Percent for Inflation (January 5, 2024)
- EPA Extends Comment Deadline for Environmental Justice Technical Guidance (December 28, 2023)
This Week in Review
In a motion filed in the U.S. Court of Appeals for the District of Columbia Circuit EPA moved to continue to hold in abeyance, until January 30, 2024, consolidated cases challenging EPA’s December 18, 2020, decision to retain, without revision, the existing National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) that were established in 2015. In 2021, when EPA, under a new Administration, announced that it would reconsider the 2020 PM NAAQS decision, the agency moved to hold the cases in abeyance until March 2023, pending completion of the reconsideration. After several extensions, at EPA’s request, the most recent end date of the abeyance was January 2, 2024. In this week’s motion, EPA seeks to extend the abeyance until January 30, 2024, “to allow EPA to bring the reconsideration to a close,” explaining that “the draft final rule has continued to undergo inter-agency review. EPA had expected that that review process would conclude and the rule would be signed by the end of 2023. Currently, however, EPA expects that the rule will be finalized and ready for signature by the end of January 2024. After signature, it will be published in the Federal Register, which could take several weeks.”
For further information:
EPA filed an unopposed motion in the U.S. Court of Appeals for the District of Columbia Circuit for a voluntary remand without vacatur of the agency’s December 31, 2020, decision to retain, without revision, the National Ambient Air Quality Standards (NAAQS) for ozone established in 2015. The 2020 decision was challenged by multiple parties and, recently, a January 5, 2024, deadline was set for the parties to submit proposed schedules for merits briefings. In this week’s motion, EPA also requests that the court stay that deadline pending the courts’ response to the agency’s request for a remand. EPA’s lawyers say they have consulted with petitioners and intervenors in the consolidated cases and none opposes the motion. On October 29, 2021, under a new Administration, EPA announced it would reconsider the 2020 decision to retain the ozone NAAQS and, at EPA’s request, the D.C. Circuit held the cases in abeyance on December 21, 2021. Reconsideration proceedings were initiated and continued into mid-2023, at which time EPA Administrator Michael Regan announced he had “decided that the best path forward is to initiate a new statutory review of the ozone NAAQS and the underlying air quality criteria and to wrap the EPA’s reconsideration process of the 2020 ozone NAAQS decision into that review.” EPA’s arguments in support of its motion for remand without vacatur include that the agency has initiated a full NAAQS review and is incorporating its reconsideration of the 2020 decision “to support its work addressing ‘significant issues’ identified by the Clean Air Act Advisory Committee and the Committee’s Review Panel. “In seeking remand, EPA does not, and need not, confess error. But the Agency is committed to conducting a transparent, scientifically rigorous review that provides opportunities for public input and engagement. EPA will complete review ‘as expeditiously as possible,’ and, indeed, has already commenced it.” EPA also argues that “[r]emanding this case would avoid ‘wasting the courts’ and the parties’ resources’. . . That is particularly true where, as here, no party has yet filed merits briefs supporting or opposing the action under administrative reconsideration.” Thirdly, EPA argues that granting the motion for remand “would not prejudice a non-moving party as no party opposes EPA’s requested relief.”
For further information:
EPA’s Office of Inspector General (OIG) issued, Management Implication Report: Preventing Fraud, Waste, and Abuse Within the Environmental Protection Agency’s Clean School Bus Program, in which it reports that in the course of its investigation of the 2022 Clean School Bus rebate program and the 2023 Clean School Bus grant program it “identified potential fraud, waste and abuse.” With respect to this initiative, OIG writes, “Our initial investigation of [EPA’s] protocols found that the Clean School Bus Program is rife with potentially inaccurate information. We also identified instances in which entities lacking student enrollments applied for and received funding, imperiling the program’s principle of equitable resource distribution. A major challenge we identified is that the EPA’s lack of clear and established verification protocols for the application process allows applicants to self-certify their eligibility, which could lead to inaccurate information being submitted to the EPA.” OIG reports the absence of rigorous protocols “led to third parties submitting applications on behalf of unwitting school districts, applicants not being forthright or transparent, entities self-certifying applications without having corroborating supporting documentation, and entities being awarded funds and violating program requirements.” (OIG also notes that although the 2023 Clean School Bus rebate program is still accepting applications and, therefore, not yet complete, similar findings are likely for that program too.) To augment its oversight and administration of the Clean School Bus program, OIG proposes the following measures: 1) require applicants to provide supporting documentation; 2) establish a validation regimen; 3) require recipients to maintain a documentation archive; 4) highlight criminal penalties and require signed certifications; 5) require notarized attestations and certifications; and 6) increase oversight of third-party vendors. Also on December 27, 2023, OIG released a second report, The EPA Clean School Bus Program Could Be Impacted by Utility Delays, on its conclusions following an audit to determine whether potential supply chain issues or production delays, related to electric buses, might affect EPA’s ability to disperse and manage funds under the Clean School Bus program. Among other things, OIG reports, “there were no significant supply chain issues or production delays that impacted the EPA’s efforts to disburse funds through the first round of the Clean School Bus Program’s funding. However, the Agency may be unable to effectively manage and achieve the program mission unless local utility companies can meet increasing power supply demands for electric school buses.”
For further information:
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https://www.epaoig.gov/sites/default/files/reports/2023-12/_epaoig_20231227-24-p-0012_cert.pdf
EPA published in the Federal Register (88 Fed. Reg. 88,908) a notice of opportunity for public hearing and comment on California’s May 22, 2023, request for a waiver of preemption for the state’s Advanced Clean Cars II Regulations. EPA will hold a public hearing on Wednesday, January 10, 2024, and accept written public comments until February 27, 2024.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-12-26/pdf/2023-28301.pdf
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https://www.4cleanair.org/wp-content/uploads/CARB_ACCII_Regs-Request_for_Waiver-052223.pdf
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EPA has extended the public comment period for the proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Rubber Tire Manufacturing source category until January 15, 2024. The original comment deadline was January 2, 2024. The NESHAP was issued in 2002 and amended in 2020. This latest proposal is pursuant to a court ruling in Louisiana Environmental Action Network v. EPA, in which the court held that EPA must address unregulated emissions from a source category during the required eight-year technology review. The proposal would establish Maximum Achievable Control Technology (MACT) standards for total hydrocarbons as a surrogate for organic hazardous air pollutants (HAPs) and filterable particulate matter (fPM) as a surrogate for metal HAPs for the rubber processing subcategory (one of four subcategories in the source category). The proposal also includes a metal HAP standard as an alternative to the fPM limit.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-12-22/pdf/2023-28252.pdf
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https://www.govinfo.gov/content/pkg/FR-2023-11-16/pdf/2023-25276.pdf
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The Center for American Progress (CAP), an advocacy group considered to be closely aligned with the Biden Administration, has released a report recommending ways that the federal government should improve its technical assistance offerings to state and local agencies implementing congressional funding that advances clean air and climate action. It makes several specific recommendations to enable these agencies to be more effective in receiving and using federal dollars offered under the Inflation Reduction Act of 2022 (IRA) and other post-pandemic recovery and stimulus laws. “Federal agencies should provide more flexible and accessible technical assistance, build greater responsiveness and effectiveness through regional infrastructure, and leverage nongovernmental technical assistance resources to better strengthen states and local governments’ foundational and overall preparedness.” Specifically, the CAP report calls on the Administration to offer more training and guidance, to coordinate with potential recipients before issuing funding, and to have support teams available to minimize burdens on agencies. The CAP recommendations also call for the Administration to expand and provide more advance notice for funding opportunities, and to streamline application and reporting processes for federal funds. It also recommends that federal agencies prioritize “gathering lessons from grant applicants and recipients”, and seek better coordination between federal and nongovernmental providers of technical assistance to reduce duplication. The IRA alone includes $48.8 billion in a variety of grant programs managed by EPA relating to clean air and climate change.
For further information:
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In a January 5, 2024 Final Rule noticed in the Federal Register (88 Fed. Reg. 89309), EPA has increased its maximum monetary civil penalties for violations of the Clean Air Act and other environmental laws effective December 27, 2023. Civil penalties incurred prior to that date remain at $117,468 per violation; under the new adjustment the maximum will be $121,275. These new maximums guide EPA’s enforcement decisions throughout the year, but the Agency notes that its “civil penalty policies, which guide enforcement personnel on how to exercise the EPA’s discretion within statutory penalty authorities, take into account a number of fact-specific considerations, e.g., the seriousness of the violation, the violator’s good faith efforts to comply, any economic benefit gained by the violator as a result of its noncompliance, and the violator’s ability to pay.” Since the passage of the Bipartisan Budget Act of 2015, federal agencies including EPA have been required to raise civil penalty maximums to keep up with inflation every year.
For further information:
https://www.govinfo.gov/app/details/FR-2023-12-27/2023-28555
EPA announced in the Federal Register (88 Fed. Reg. 89,687) a fifteen-day extension of the public comment period on its draft revision of the Technical Guidance for Assessing Environmental Justice in Regulatory Analysis (“EJ Technical Guidance”). Comments are now due on January 30, 2024. First published in 2016, the EJ Technical Guidance is intended primarily for EPA analysts. It outlines analytic expectations and addresses approaches and methods that can be used to evaluate environmental justice concerns in regulatory actions. EPA’s proposed revisions, which were originally announced on November 15, 2023, are intended to reflect the state of the science, new peer-reviewed EPA guidance, and new terminology, priorities and direction related to environmental justice analysis. Recommendations in the guidance are designed to ensure greater consistency across EPA assessments of environmental justice concerns for regulatory actions. Public comments will be considered for incorporation or modification into a final revised draft guidance document, which will be finalized for publication following review by EPA’s Science Advisory Board.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-12-28/pdf/2023-28598.pdf
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