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April 20-26, 2019
In this week's issue:
- D.C. Circuit Upholds EPA’s Denial of Northeastern States’ Petition to Expand the Ozone Transport Region (April 23, 2019)
- Petitioners File Opening Briefs in D.C. Circuit Challenge to CSAPR Close-Out (April 19, 2019)
- PFOA/PFOS Interim Guidance Released for Comment (April 25, 2019
- American Lung Association Releases Annual State of the Air Report (April 24, 2019)
This Week in Review
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The U.S. Court of Appeals for the District of Columbia Circuit rejected an effort by eight states in the Northeast Ozone Transport Region (OTR) to overturn EPA’s denial of their petition to expand the OTR to include the upwind states of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and portions of Virginia that are not already in the OTR. States that are members of the OTR are subject to mandatory ozone controls, including enhanced vehicle inspection and maintenance programs in densely populated areas, reasonably available control technology for emissions sources, vehicle-refueling controls for vapor recovery, and heightened permitting and control requirements for stationary sources. In a December 2013 petition to EPA under CAA Section 176A, the states of Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island and Vermont contended that the upwind states should be added to the OTR because they significantly contribute to ozone pollution in existing OTR states, hampering their efforts to control their ozone levels. EPA denied the petition in 2017, explaining that it preferred to use other authorities to address interstate transport of ozone. Eight of the petitioning states (all but New Hampshire) then challenged EPA’s rejection of their request in the D.C. Circuit, contending that EPA may not decline to expand the OTR based solely on a preference to use other CAA provisions absent a reasonable basis to believe that the other provisions will effectively redress interstate ozone pollution. The court rejected that argument. “Even if the States are correct as a factual matter,” the court stated, “this would not make enlargement of the transport region mandatory. Nowhere does the statute require EPA to add States to a region unless EPA’s other options will eliminate ozone pollution.” The court also held that EPA reasonably exercised its discretion in rejecting the petition. It found that the agency adequately explained the facts and policy concerns it relied on and had sufficient basis in the record for predicting that an ongoing downward trend in ozone production would continue under the current regulatory regime. “Nothing more is required under the extremely deferential review we must apply here,” the court stated.
For further information: http://www.4cleanair.org/sites/default/files/Documents/New_York_v_EPA-DC_Cir_4-23-19.pdf
States and environmental groups filed their opening briefs in the U.S. Court of Appeals for the District of Columbia Circuit in litigation challenging EPA’s December 2018 rule, “Determination Regarding Good Neighbor Obligations for the 2008 Ozone National Ambient Air Quality Standard,” also known as the “CSAPR Close-Out” rule. The rule announced EPA’s final determination that the existing Cross-State Air Pollution Rule (CSAPR) Update for the 2008 Ozone National Ambient Air Quality Standards (NAAQS) fully addresses the interstate pollution transport obligations of the 20 states covered by CSAPR under the good-neighbor provision of the Clean Air Act. The downwind states seeking to overturn that determination argue in their brief, first, that EPA unlawfully measured upwind states’ compliance based on projections of improved air quality in 2023, when the next relevant statutory deadline for attainment of the 2008 ozone standard is 2021. Second, they claim that EPA acted arbitrarily and capriciously in concluding that no cost-effective controls were available to reach attainment by 2021. Finally, they argue that EPA relied on faulty modeling to conclude that downwind states will, without further regulatory action, come into attainment with the 2008 ozone standard by 2023. Environmental and citizen-group petitioners echo these arguments in their brief, asserting that EPA’s determination “subjects millions of people in downwind states to unhealthy levels of pollution and elevated risk of asthma attacks, permanent lung damage, and death.” The state (and city) petitioners are New York, Connecticut, Delaware, Maryland, Massachusetts, New Jersey, and the City of New York. The environmental and citizen-group petitioners are Downwinders at Risk, Appalachian Mountain Club, Sierra Club, Chesapeake Bay Foundation, Texas Environmental Justice Advocacy Services, Air Alliance Houston and Clean Wisconsin. EPA’s brief is due on June 14 and the brief of intervenors supporting EPA is due June 28; oral argument is expected to be scheduled for early fall, 2019.
For further information: http://www.4cleanair.org/sites/default/files/Documents/New_York_v_EPA-State_Petitioners_brief_4-19-19.pdf and http://www.4cleanair.org/sites/default/files/Documents/New_York_v_EPA-Citizen_Petitioners_brief%204-19-19.pdf
The EPA has released draft interim guidance for public comment, regarding groundwater contaminated with perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS). EPA Administrator Andrew Wheeler said “This interim guidance will support actions to protect the health of communities impacted by groundwater that contains PFOA and PFOS above the 70 parts per trillion level, and is a potential source of drinking water. This is a critical tool for our state, tribal, and local partners to use to address these chemicals.” EPA said it may revise the recommendations as new information about toxicity, exposure, and other factors become available. The comment period will be open for 45 days, until June 10. NACAA members have been engaged on PFAS issues arising from air emissions that may create concerns for contaminant transport and other risks.
For further information: https://www.epa.gov/pfas and www.4cleanair.org/pfas
The American Lung Association (ALA) issued its 2019 State of the Air Report, the 20th release of the group’s annual “report card” on national air quality. The report reviews ozone and particulate matter (PM) air pollution data collected by local, state, tribal and federal governments in 2015, 2016 and 2017. According to ALA, ozone and PM air pollution worsened in many U.S. cities in the years observed. Compared to the 2018 report card, which examined data for 2014 through 2016, the 2019 report found that 7 million additional Americans live in counties with unhealthy air conditions, totaling 141 million people or 43 percent of the U.S. population. ALA attributes some of the declines in air quality to the effects of climate change, stating that observed increases in the number of high ozone days were driven by rising temperatures and more frequent unhealthy PM days were caused by wildfires resulting from changing rain patterns. At the same time, however, the report highlighted longer-term air quality improvements driven by the Clean Air Act, pointing out that the 2019 report’s findings remain an improvement over the 2016 report, which found that 166 million Americans live in counties with unhealthy air conditions. The full report includes sections with more detailed findings on annual ozone pollution, annual average PM pollution, 24-hour average PM pollution, city air quality rankings and at-risk population groups. It also names seven “threats to the nation’s air quality” and urges the public to oppose them: 1) repealing plans to reduce carbon pollution from power plants; 2) removing limits from methane and other emissions from oil and gas operations; 3) opening doors for more polluting cars and trucks; 4) cutting funding and expertise needed to clean up the air; 5) stacking the deck to deny scientific evidence; 6) weakening Clean Air Act implementation; and 7) weakening the Clean Air Act.
For further information: https://www.lung.org/assets/documents/healthy-air/state-of-the-air/sota-2019-full.pdf