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February 24-March 1, 2024
In this week's issue:
- NACAA Calls upon EPA to Grant California’s Waiver Request for ACC II Regulation (February 27, 2024)
- EPA To Drop Existing Gas Units From Power Plant GHG Proposal, Plan To Revisit In Subsequent Proposal (February 29, 2024)
- Congress Adopts Continuing Resolution to Postpone Potential Shutdown, Final EPA FY 2024 Appropriations Expected Next Week (February 29, 2024)
- D.C. Circuit Issues Opinion in Cases Challenging 2015 SSM SIP Calls (March 1, 2024)
- Government Accountability Office Recommends Improvements in Practices for the Federal Justice40 Program (February 28, 2024)
- EPA Announces $3 Billion in Funding Opportunities for Clean Ports (February 28, 2024)
- EPA Publishes Final Rule Removing Summertime Gasoline Volatility Waiver in Eight States Beginning in 2025 (February 29, 2024)
- EPA Publishes Notice Seeking Public Comment on California’s Request for Authorization of Preemption for State’s In-Use Locomotive Regulation (February 27, 2024)
- EPA Extends Public Comment Period on Disapproval of Contingency Measures Plan for Los Angeles-South Coast Air Basin (March 1, 2024)
- EPA Announces Extension of Public Comment Period on Proposed Title V “Applicable Requirements” Rule (February 26, 2024)
- EPA Publishes Proposed Revisions to Method 320 Source Testing Procedures (March 1, 2024)
This Week in Review
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NACAA submitted written comments to EPA in support of the California Air Resources Board’s (CARB) May 22, 2023, request to EPA for a waiver of preemption for the state’s Advanced Clean Cars II (ACC II) program. EPA announced the opportunity for a public hearing and public comment on December 26, 2023. Tracy Babbidge (CT), Co-Chair of the NACAA Mobile Sources and Fuels Committee, testified on behalf of the association at EPA’s January 10, 2024, public hearing on this waiver request. NACAA typically weighs in on California’s waiver requests and our testimonies and comments are very similar from one to the next. Likewise, the testimony and written comments submitted on the ACC II waiver request are based on NACAA’s standing policy of strongly supporting and preserving states’ rights under the Clean Air Act (CAA) and not on any particulars of the ACC II Reglation itself. As established by Congress in CAA Section 209 EPA’s role in granting a waiver to California on a particular motor vehicle rule is narrow and deferential. The agency must grant California’s request for a waiver unless it can demonstrate that one or more of the three conditions of Section 209(b) are not met. As NACAA writes in its comments, “The ACC II Regulation meets all of the statutory criteria that EPA must, and the only criteria that EPA may, consider when responding to a request by California for a waiver. It is therefore incumbent upon EPA to fully approve this waiver request and NACAA urges the agency to do so swiftly.”
For further information:
EPA has indicated that its proposed rule governing greenhouse gas (GHG) emissions from the power sector will not include existing gas-fired power plants as it sends the rule to the White House for interagency review ahead of finalization. On May 23, 2023, May, EPA released a proposal under Section 111 of the Clean Air Act to regulate GHG emissions from new and existing coal-fired and gas-fired power plants (EPA docket EPA-HQ-OAR-2023-0072). The proposal had three substantive parts: 1) New Source Performance Standards (NSPS) for new gas units, 2) Emission Guidelines (EG) for coal units, and 3) EG for existing gas units over 300 MW that ran more than 50% of the time. In August 2023, NACAA filed comments on the May 2023 proposal, “NSPS for GHG Emissions from New and Reconstructed EGUs; EG for GHG Emissions from Existing EGUs; and Repeal of the Affordable Clean Energy Rule”. As EPA moves to finalize the rule, EPA Administrator Michael Regan announced substantive changes prior to transmittal to the White House Office of Management and Budget (OMB) for interagency review. Regan said that the NSPS for gas units and the EG for existing coal units would be strengthened, but did not provide specifics. In addition, he said that the EG for gas units would be removed from the current proposal, saying “the Agency is taking a new, comprehensive approach to cover the entire fleet of natural gas-fired turbines, as well as cover more pollutants including climate, toxic and criteria air pollution.” It is expected that EPA will launch a stakeholder process to get input to put out a new rule for existing gas units with a “more ambitious and comprehensive design” that will apply to the whole gas-fired fleet, not just larger units that run more frequently. The statement also noted that EPA will begin exploring new NESHAPs for power and industrial combustion turbines, focused on formaldehyde concerns raised by environmental justice (EJ) communities in the comment period. EPA is also going to take on revising NOx standards from gas combustion turbines. Initial reactions to the announcement have been mixed, with EJ advocates, utilities and reliability organizations praising the approach, and with some criticism from environmental groups and lawmakers. Senator Sheldon Whitehouse (D-RI), Chairman of the U.S. Senate Budget Committee and a member of the Senate Environment and Public Works Committee, said “Failing to cover the plants responsible for the vast majority of future carbon pollution from the power sector makes no sense.” EPA will offer state and local agencies a detailed look at their plans on a webcast on March 5, 2024 – contact Miles Keogh, NACAA Executive Director, for invitation details.
For further information:
https://www.4cleanair.org/wp-content/uploads/EPA-power-plant-GHG-annoucement.pdf
and
https://www.regulations.gov/docket/EPA-HQ-OAR-2023-0072
and
https://www.4cleanair.org/wp-content/uploads/NACAA-Power-Plant-GHG-Rules-Comments-_-08032023.pdf
and
Congress adopted another Continuing Resolution (CR), which extends federal funding at FY 2023 levels and avoids a partial government shutdown until March 8, 2024 for some federal agencies (the previous CR set a March 1 deadline) and until March 22, 2024 for the others (the previous CR set a March 8 deadline). Senators voted 77-13 and House Lawmakers voted 320-99 to approve the CR. The measure – H.R. 7463 – is the latest in a series of CRs that have kept the government funded since the start of the fiscal year on October 1, 2023, which were needed because Congress has not yet adopted appropriations legislation for FY 2024. EPA funding, which is included in the Interior, Environment, and Related Agencies appropriations bill, was originally in the group of federal agencies with the later CR deadline. However, with this latest measure, the bill with EPA funding has been moved to the earlier group that now has a March 8 deadline. Reportedly, Congressional negotiators have reached agreement on the provisions of the Interior, Environment bill and plan to release the details within the next few days and vote on final passage next week. It is expected that the Interior, Environment bill will include cuts from FY 2023 levels, although the amount or distribution of the reductions has not been made public.
For further information:
https://www.congress.gov/bill/118th-congress/house-bill/7463
The U.S. Court of Appeals for the District of Columbia released its opinion granting in part and denying in part state and industry petitions challenging EPA’s call for startup, shutdown and malfunction (SSM) State Implementation Plans (SIPs) that stemmed from a 2015 Obama Administration policy on SSM provisions and associated SIPs. The policy states that SIP provisions that provide exemptions from air emissions limits during SSM periods or that provide affirmative defenses for emissions-limit violations during SSM periods are not consistent with the Clean Air Act and are not generally approvable. The Trump Administration reconsidered the policy and withdrew it in November 2020, but it was reinstated by the Biden administration in October 2021. The D.C. Circuit cases challenging the 2015 policy and SIP calls were fully briefed in 2016, but were placed in abeyance during EPA’s reconsideration period. After the 2015 policy was reinstated, the litigation was removed from abeyance and the court ordered supplemental briefing to proceed. Supplemental briefs were files in early 2022 and oral arguments were heard on March 25, 2022. In their original briefs and supplemental briefs the petitioners argued that EPA exceed its authority by basing SIP calls on four specific categories of provisions: 1) automatic exemptions, 2) director’s discretion, 3) overbroad enforcement discretion and 4) affirmative defense. Regarding automatic exemptions and director’s discretion provisions, the court agreed with the petitioners and set aside SIP calls to the extent that they rely on those provisions. Regarding overbroad enforcement discretion provisions, the court rejected the challenge and upheld EPA’s final action. Regarding affirmative defense provisions, the court agreed with the petitioners on those that are functionally exemptions, and vacated those SIP calls, but rejected challenges to other types of affirmative defense provisions. The state petitioners were Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee and West Virginia.
For further information:
The Government Accountability Office (GAO) announced the availability of a report that concludes that EPA could improve the implementation of its Justice40 initiative, which includes environmental justice goals, through better practices. Justice40 aims to target 40 percent of the overall benefits of certain federal investments to disadvantaged communities that have been marginalized and overburdened historically. In the GAO report entitled, “Justice40: Use of Leading Practices Would Strengthen Efforts to Guide Environmental Justice Initiative,” GAO found that the Executive Office of the President (EOP) did not adequately collect feedback regarding the guidance and tools developed for the program and made 15 recommendations for improvement on the part of various federal entities. These include: updating and developing new guidance and tools for implementing Justice40; assessing and meeting communications needs within various participating offices; establishing a formal approach to gather feedback from agencies about the adequacy of Justice40 implementation guidance and tools; and establishing a process to assess progress that includes key practices for evidence-building and performance-management activities.
For further information:
EPA announced the availability of nearly $3 billion under the Inflation Reduction Act to fund projects under the agency’s Clean Ports Program. This funding will be divided between two funding opportunities. The Zero-Emission (ZE) Technology Deployment Competition will award $2.8 billion to help ports nationwide transition to ZE operations. By funding ZE port equipment and infrastructure these investments will reduce criteria pollutant, toxic air pollutant and greenhouse gas emissions at U.S. ports. The Climate and Air Quality Planning Competition will award $150 million to help port stakeholders build capacity for continuing emission reductions and transitioning to ZE operations. Funding is intended for activities such as emissions inventories, strategy analysis, community engagement and resiliency measure identification. For both competitions, eligible entities are state, regional, local or Tribal agencies that have jurisdiction over a port authority or port; air pollution control agencies; and private entities that apply in partnership with another eligible entity and own, operate or use facilities, cargo-handling equipment, transportation equipment or related port technology. Eligible projects include those at water ports – coastal and inland – and at dry ports – inland facilities where goods picked up at ports are transferred between rail cars and trucks. EPA has issued a comprehensive Notice of Funding Opportunity (NOFO) for each competition. The deadline for submitting applications is May 28, 2024. EPA also requests that interested applicants submit an “optional informal notice of an Intent to Apply” by March 28, 2024. EPA will hold a webinar, “Overview of EPA’s Clean Ports Program Funding Opportunities,” on March 13, 2024.
For further information:
https://www.epa.gov/system/files/documents/2024-02/2024-clean-ports-ze-tech-deploymt-competition-2024-02.pdf [NOFO for ZE Technology Deployment Competition]
and
https://www.epa.gov/system/files/documents/2024-02/2024-clean-ports-caqp-competition-2024-02.pdf [NOFO for Climate and Air Quality Planning Competition]
and
https://www.epa.gov/ports-initiative/cleanports [EPA’s Clean Ports Program website, which provides important dates, application documents, reference materials and other tools and resources]
and
https://www.epa.gov/newsreleases/biden-harris-administration-invests-3b-clean-ports-part-president-bidens-investing [EPA’s press release]
and
https://www.zoomgov.com/webinar/register/WN_6ovrF87GSderqGntuCH13Q#/registration [Registration for March 13, 2024, webinar]
EPA published in the Federal Register (89 Fed. Reg. 14,760) a final rule to remove the summertime 1-pound-per-square-inch (psi) Reid Vapor Pressure (RVP) waiver for E10 (gasoline blended with 10 percent ethanol) in eight states, thereby allowing the year-round sale of E15 (gasoline blended with 15 percent ethanol) in those jurisdictions. This final action is in response to notifications (which began in 2022) submitted to EPA by the Governors of Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin, made under Clean Air Act (CAA) Section 211(h)(5), that the RVP limitation established by Section 211(h)(4) increases emissions that contribute to air pollution in their states. As requested by the Governors, the final rule applies – in lieu of the RVP limitation established by Section 211(h)(4) – the RVP limitation established by Section 211(h)(1) to all fuel blends containing gasoline and E10 that are sold, offered for sale, dispensed, supplied, offered for supply, transported or introduced into commerce in their states. However, although the Governors requested that the rule take effect beginning with the 2023 summer ozone control season and EPA proposed in 2023 to delay the effective date by one year, until April 28, 2024, the effective date of the final rule is April 28, 2025. EPA says it received multiple petitions from stakeholders requesting an extension of the effective date. Consistent with statutory provisions, the agency delayed the effective date until 2025 because of concerns over insufficient fuel supply. The final rule also establishes a regulatory process by which a state may request to reinstate the 1-psi waiver.
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-02-29/pdf/2024-04023.pdf
and
EPA published in the Federal Register (89 Fed. Reg. 14,484) a notice of opportunity for a public hearing and public comment on the California Air Resources Board’s (CARB) request for an authorization of preemption for the state’s In-Use Locomotive Regulation. The regulation was adopted on April 27, 2023; on November 7, 2023, CARB sent a letter notifying EPA of the final regulation and requesting that the agency authorize preemption under Section 209(e) of the Clean Air Act (CAA). (With respect to rules establishing standards for new nonroad vehicles and engines, the nomenclature is for EPA to grant an “authorization,” under CAA Section 209(e)(2), for CARB to enforce its own standards notwithstanding the statutory preemption that prohibits states from enacting emission standards for new nonroad vehicles and engines. The more familiar term “waiver of preemption” applies, under CAA Section 209(b), to EPA action on rules establishing standards for new onroad vehicles and engines. The term “waiver” is often used, informally, in both instances.) EPA will hold a virtual public hearing on California’s request on March 20, 2024, beginning at 10 AM Eastern Time. Those wishing to testify at or attend the hearing must register by March 13, 2024. EPA will accept written comments through April 23, 2024.
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-02-27/pdf/2024-03955.pdf
and
and
EPA published in the Federal Register (89 Fed. Reg. 15,096) a 30-day extension of the public comment period on the agency’s February 2, 2024, proposed rule, “Air Plan Disapproval; California; Los Angeles-South Coast Air Basin; 1997 8-Hour Ozone.” The proposed disapproval concerns California’s “Final Contingency Measure Plan – Planning for Attainment of the 1997 80 ppb 8-hour Ozone Standard in the South Coast Air Basin,” which addresses the Clean Air Act requirements for submittal of contingency measures that will be implemented if emission reductions from anticipated technologies associated with the area’s 1997 ozone NAAQS attainment demonstration are not achieved. The public comment period, which was extended in response to several requests, will now close on April 3, 2024. NACAA was among those requesting an extension (see related article in the February 17-23, 2024, Washington Update), explaining to EPA that although this particular proposed rule relates to the Los Angeles-South Coast Air Basin nonattainment area, “it has far broader implications, potentially affecting any nonattainment area in the country required to prepare and submit a contingency measure plan for any ozone or particulate matter NAAQS. Therefore, state and local air agencies require additional time to evaluate this EPA proposed action and develop informed comments on it.”
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-03-01/pdf/2024-04287.pdf
and
https://www.govinfo.gov/content/pkg/FR-2024-02-02/pdf/2024-02082.pdf
EPA published notice in the Federal Register (89 Fed. Reg. 14,015) of its decision to extend, by 30 days, the public comment period on its proposed rule, “Clarifying the Scope of ‘Applicable Requirements’ Under State Operating Permit Programs and the Federal Operating Permit Program.” The proposal, which is intended to codify EPA’s current policy interpretations concerning the scope of its Title V oversight authority, was published on January 9, 2024. On February 13, NACAA requested a 45-day extension of the comment period; EPA received at least two other extension requests as well. The proposed rule focuses primarily on clarifying the circumstances under which EPA will review New Source Review (NSR) preconstruction permitting decisions in Title V permits issued by state and local permitting agencies. EPA 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 proposing to remove from its regulations provisions relating to what is known as “enhanced NSR” permitting and related Title V administrative amendments and “strongly encourages” state and local agencies that use similar approaches to eliminate these processes from their permitting programs. 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. Comments on the proposed rule are now due by April 10, 2024.
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-02-26/pdf/2024-03781.pdf
and
https://www.4cleanair.org/wp-content/uploads/NACAA-extension-request-TV-app-reqs-proposal-021324.pdf
and
https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions
EPA published in the Federal Register (89 Fed. Reg. 15,101) a proposed rule to make “routine corrections and revisions” to Test Method 320, which describes sampling and analytic procedures for extractive emission measurements using Fourier transform infrared (FTIR) spectroscopy. Method 320 – Measurement of Vapor Phase Organic and Inorganic Emissions by Extractive Fourier Transform Infrared (FTIR) Spectroscopy, was promulgated in 1999 along with the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for the Portland Cement Manufacturing Industry; it has not been updated or revised since then. EPA has incorporated the use of Method 320 into numerous NESHAP and New Source Performance Standards rules. In 2017, the agency convened a series of discussions with stakeholders in the emissions measurement community to identify technical issues related to FTIR spectroscopy and potential revisions to Method 320; the proposed rule seeks to address issues identified in those discussions. EPA’s proposed revisions include updating the method’s validation and quality assurance spiking procedures to provide what EPA describes as “a more performance-based approach” to emissions measurement, with specified acceptance criteria. “Instead of specifying exactly how stack testers should use or perform a particular method procedure, the method defines the criteria that must be met for a specific method element, which provides stack testers with flexibility while maintaining the quality and reliability of the measurement results,” EPA explains in the proposal’s preamble. The proposal also includes technical revisions and editorial changes to clarify and update the requirements and procedures specified in Method 320, including removing the batch sampling procedures. Public comments on the proposed rule are due by April 30, 2024.
For further information:
https://www.govinfo.gov/content/pkg/FR-2024-03-01/pdf/2024-04359.pdf
and